Law Lessons from EDWARD J. MARTIN, III V. DANA LISA DIXON n/k/a DANA LISA GENOVESE, App. Div., A-6344-07T3, October 21, 2009:

In Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), the Supreme Court established a non-exhaustive list of factors that courts should consider in evaluating whether a parent is obligated to contribute to the expenses of a child’s post-secondary education. Those factors include “whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education,” the parent’s and child’s expectation with respect to higher education, the financial resources available to the parents and the child, as well as the child’s aptitude for the higher education sought, and the relationship of the child to the paying parent. Ibid. Six years after Newburgh was decided, the Legislature codified those factors in N.J.S.A. 2A:34-23(a). Gac v. Gac, 186 N.J. 535, 543 (2006).

Consequently, both the Legislature and the courts recognize that parents may be responsible for supporting their children while they pursue higher education under appropriate circumstances. Kiken v. Kiken, 149 N.J. 441, 450 (1997) (citing N.J.S.A. 2A:34-23(a); Newburgh, supra, 88 N.J. at 543-44). “[A] trial judge should balance the statutory criteria of N.J.S.A. 2A:34-23(a) and the Newburgh factors, as well as any other relevant circumstances, to reach a fair and just decision whether and, if so, in what amount, a parent or parents must contribute to a child’s educational expenses.” Gac, supra, 186 N.J. at 543.

A party’s inability to work does not end the inquiry because, under Newburgh, the court considers “the financial resources of both parents” in addition to “the ability of the parent to pay.” Newburgh, supra, 88 N.J. at 545. See Weitzman v. Weitzman, 228 N.J. Super. 346, 357-58 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989) (requiring parent to contribute to college expenses from an inheritance received shortly following the child’s graduation).

As the court held in Hudson v. Hudson, 315 N.J. Super. 577, 584 (App. Div. 1998), “[a] court cannot consider issues such as college contribution in a vacuum and disregard substantial economic benefits and financial resources inuring to the benefit of a parent as a result of a remarriage.” While a court cannot compel a parent’s new spouse to support his or her stepchildren, the court can take the new spouse’s financial position into account in deciding whether to require the parent to provide support. Ibid. Although, the “limit of a parent’s college contribution should not exceed that parent’s income [or in this case assets] whether earned, unearned or imputed.” Ibid.

A parent cannot be permitted to avoid her responsibility to her children and their educational needs simply by spending or encumbering all personal assets so as to make them unavailable. See Connell v. Connell, 313 N.J. Super. 426, 432 (App. Div. 1998) (“The voluntary choice of the father placing his inheritance in a non-income producing asset should not result in exclusion of that asset from consideration in the child support equation.”). Indeed, under the appropriate circumstances, it can be inferred from a party’s conduct that there was an intent to “insulate it from consideration for support of [the] children.” Id. at 432-33.

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