NJSBA Family Law Section

 View Only

Revisiting Newburgh and a Parent’s Obligation to Contribute to the Cost of College Education

By Jay McManigal, Esq posted 02-27-2015 02:54 PM

  

Originally published in the New Jersey Family Lawyer, Vol. 35, No. 4/February 2015

Revisiting Newburgh and a Parent’s Obligation to Contribute to the Cost of College Education

by Jay M. McManigal

            What turmoil family lawyers have experienced in the past year over the cyclical college debate. This article focuses on the Court’s commentary in Newburgh, which resulted in the law relied upon today, which has created a divide between professionals and intact/divided families alike. Specifically, is the law written in a way that ensures protection of a parent’s fundamental right to rear children while also protecting the best interests of the child in the wake of a divorce? And how do these issues impact families in New Jersey?

            New Jersey laws are changing, growing and evolving based upon the social and financial landscape. The state recently experienced significant upheaval in the alimony law, and ultimately the trickle down effects that flow from such a shift. One such effect will certainly involve the transformation of college contribution. What once seemed so certain now carries with it a burden, in part upon the child, to contribute both financially and emotionally.

***

            In the past, a college education was reserved for the elite, but the vital impulse of egalitarianism has inspired the creation of a wide variety of educational institutions that provide post-secondary education for practically everyone. State, county and community colleges, as well as some private colleges and vocational schools provide educational opportunities at reasonable costs. Some parents cannot pay, some can pay in part, and still others can pay the entire cost of higher education for their children. In general, financially capable parents should contribute to the higher education of children who are qualified students. In appropriate circumstances, parental responsibility includes the duty to assure children of a college and even a postgraduate education such as law school.1 (emphasis added)

***

            In establishing the well-known Newburgh factors, Justice Stewart Pollock provided the commentary above, explaining the Court’s decision to permit the child of the deceased a claim in the wrongful death action. Even though this was not a family law case, family court judges apply the Newburgh factors in analyzing a college contribution claim. Justice’s Pollock’s commentary regarding the accessibility of a college education remains accurate today. In Oct. 2013, nearly 66 percent of high school graduates were enrolled in colleges and universities. Among those high school graduates enrolled in college, nearly 93 percent were full-time students. About 60 percent of those enrolled in college attended four-year schools.2

            However, the cost of college has significantly changed. In 1981-82, the average cost of college tuition, fees, room and board in current dollars was $3,489 per year for all institutions (public and private). In 2011-13, the cost of college in current dollars was $19,339.3 While college costs have increased over 500 percent, the median household income has not kept up. In 1984, the median household income for the state of New Jersey was $27,776.4 Thus, the average cost of college would account for 12 percent of the median household income. In 2013, the median household income for New Jersey was $61,782.5 Thus, in 2013, the average cost of college would account for 31 percent of the median household income. Nonetheless, college may still be highly accessible to the majority of children in the state despite the increased cost, if it is understood and appreciated that the child’s first choice may not be a financial choice of the parents.

            The essence of this statement is outlined in Newburgh, but has been lost in its years of simple translation.

            With two-thirds of high school graduates attending college, the average annual cost of college now accounting for 31 percent of the median household income, and the constitutional questions posed in the introductory paragraph of this article, isn’t it time for the Legislature to revisit the Newburgh factors and address the issue of college contribution?

            Many practitioners have seen the unintended consequences of Newburgh. On some occasions, practitioners see litigants, who are already struggling financially, forced to contribute to their child’s college education. On other occasions, practitioners see the children of divorced families intentionally caught in the crossfire of emotions that accompany post-judgment litigation over college expenses. The facts should affect the outcome. Consider this example: The non-custodial parent has been estranged from the child completely by the custodial parent; the child does not want to have a relationship with the non-custodial parent; the non-custodial parent and custodial parent are struggling financially with little available funds for college; the child has chosen to attend an out-of-state college, which results in double the cost of an in-state college; and the custodial parent has filed a notice of motion to compel contribution from the non-custodial parent after the child has already begun to attend his college of choice.

            These circumstances far too often present themselves, and courts grapple with deciding these emotionally charged and financially difficult cases. Does the court force a financially incapable parent to contribute to the child’s college education, or does the court leave it to the child to determine how he or she will pay for college?

            The author agrees with Justice Pollock, that financially capable parents should contribute toward their child’s higher education costs. This is likely a moral endeavor that nearly all parents would like to achieve—the ability to contribute toward their child’s college expenses.

            However, under what legal basis has this moral obligation become a legal obligation? In Newburgh, the Court states that parents have a duty to provide a necessary education for children. By definition, a person who attains the age of 18 is an adult. Many states have memorialized laws establishing such limits on a parent’s obligation to support a child once that child has reached the age of majority at 18 or 19 years of age, except in the event of certain extenuating circumstances. A majority of the states have clearly defined cut-off dates for a parent’s obligation to support a child.6 While issues of child support and emancipation might also exist, practitioners can recognize the issue that has the greatest financial impact on a family is the cost of college. Practitioners can also recognize that in some post-judgment cases, the court should intervene to protect the child from being caught in the emotional crossfire.

            The increasing costs of a college education and the surrounding child support and emancipation issues have made the topic of college contribution a very volatile one for post-judgment litigation. Not all litigants have the best of intentions when litigating these types of cases. New Jersey law has been interpreted in such a way that the child has a duty to communicate with both parents concerning his or her educational desires.7 Unfortunately, in some instances this obligation has been used by one or both parents to put the child in the middle of the battle for the sole purpose of choosing a side.

            So what can family lawyers do to address these dilemmas? How can the state ensure that the family unit is protected; that a parent’s fundamental right to make decisions regarding the child is protected; and that in appropriate circumstances, the court can intervene on the issue of college expense contribution when necessary?

            The author believes the solution is for the state Legislature to codify the laws regarding college expense contribution, putting emphasis on recognizing that the parent-child relationship is an important factor in analyzing college contribution claims.

            The author believes the statute should be written to clearly articulate that a trial court need not require a custodial parent or non-custodial parent to contribute to their child’s college in all cases. This provision should be made clear at the forefront of the statute to provide the court and litigants with guidance that some cases may warrant a parent to contribute to college, but not all.     

            The author believes the decision to order a parent to contribute to their child’s college education should be at the discretion of the trial judge based upon a review of economic and non-economic factors. The economic and non-economic factors that are articulated in Newburgh should be included in the statute, including the following amendments:

1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education;

2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education;

3) the amount of the contribution sought by the child for the cost of higher education;

4) the ability of the parent to pay that cost;

5) the relationship of the requested contribution to the kind of school or course of study sought by the child;

6) the financial resources of both parents;

7) the commitment to and aptitude of the child for the requested education;

8) the financial resources of the child, including assets owned individually or held in custodianship or trust;

9) the ability of the child to earn income during the school year or on vacation;

10) the availability of financial aid in the form of college grants and loans;

11) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; 

12) the relationship of the education requested to any prior training and to the overall long-range goals of the child;8

13) the extent to which the paying parent has been involved in the decision making process for the child’s college education;

14) the extent to which the child contributes toward his or her own college education;

15) the child’s options to attend state or local colleges compared to private institutions;9 and

16) any other factor that may impact the court’s decision.

            The author believes the law should codify the restrictions set forth in Gac,10 and establish parameters for the timing in which college expense contribution applications should be filed (i.e., unless extenuating circumstances apply, prohibiting a parent from seeking reimbursement for all college expenses after the child has graduated from college and where there has been no relationship with the custodial parent). Custodial parents should be afforded greater latitude if the application for college expense reimbursement is filed before the child incurs expenses for college because they have provided the non-custodial parent with the opportunity to be a part of the decision prior to the college expenses being incurred. However, if the application is filed after the college expenses are incurred, “[t]he failure [to initiate the application to the court before the expense are incurred] will weigh heavily against the grant of a future application.”11

            Procedurally, the author believes the Legislature should establish minimum requirements for financial disclosure when a parent files an application for college expenses contribution. If a party is going to bring an application that may impact a significant portion of the other party’s income, basic financial disclosure and transparency should be required. The author believes the law should require that when a parent initiates an application with the court for college expense contribution from the non-custodial parent, the parent should be required to file a completed and current case information statement. The moving party should also attach as an exhibit to his or her application all documentation regarding college tuition, room and board, fees, expenses, financial aid, grants, scholarships and any other information related to college expenses. The moving party should also attach to his or her case information statement information regarding the child’s income and the child’s contribution to his or her college expenses. The responding parent should be required to attach a completed and current case information statement to his or her responsive pleading. These requirements would facilitate the process of determining the cost of college and the parties’ ability to pay.

            Finally, the author believes the statute should provide guidance for the court in addressing college contribution cases where the parent-child relationship is broken as suggested in Black.12 This analysis is factually sensitive, as certain issues such as past domestic violence and child abuse may be a factor. The author believes the court should have significant flexibility to address these types of circumstances. Presuming issues of domestic violence and child abuse do not exist, if the court were to analyze the factors above and find the child has failed to engage in a relationship with the parent, then the trial judge should have the option to order that the child and non-custodial parent attend counseling or therapy. The court should also have the flexibility to either make the completion of therapy a prerequisite for the non-custodial parent’s college contribution, or a condition of the non-custodial parent’s contribution to college. The author presents this differentiation because in some cases, especially for applications filed after the child has incurred the college costs, the court may decide to have the estranged child engage in therapy with the non-custodial parent prior to the non-custodial parent being obligated to contribute toward college. This option places greater responsibility on the adult child to repair the broken relationship with the parent.  Perhaps the law should include a provision indicating that prior to a review of the above-mentioned factors, there should be a rebuttable presumption that a parent should not be obligated to contribute to the college education costs of an adult child who refuses to have a relationship with that parent.

            The statutory proposal established above will allow the courts to analyze college expense contribution claims in a fair and equitable manner taking into consideration all of the circumstances. Even though this proposal does not join the majority of states that have automatic emancipation dates, it does provide a statutory framework that seeks to balance a parent’s fundamental right to rear children and the best interests of the child.

Jay M. McManigal is an associate at the Law Office of Timothy F. McGoughran, LLC, located in Monmouth County.

Endnotes

1.          Newburgh v. Arrigo, 88 NJ 529, 544 (1981).
2.         
U.S. Bureau of Labor and Statistics.
3.          
Nces.edgov/fastfacts.
4.          
U.S. Census Bureau–Historical Income Tables: Households, Table H-8.
5.          
U.S. Census Bureau–Historical Income Tables: Households, Table H-8.
6.          
National Conference of State Legislatures, Termination of Support–Age of Majority, www.ncsl.org.
7.          
Black v. Black, 436 N.J. Super. 130, 92 A.3d 688, (Ch. Div. N.J. 2013).
8.          
Newburgh, supra, 88 N.J. at 545.
9.          
Black, supra, 436, N.J. Super. at 147-48.
1
0.        Gac v. Gac, 186 N.J. 535 (2006).
1
1.        Gac, supra, 186 N.J. at 547.
1
2.        Black, supra, 436, N.J. Super. at 140.

 

Permalink