Hoefers v. Jones

• Decision Date: 29 April 1994
• Citation: 672 A.2d 1299,288 N.J.Super. 590
• Parties: Janet Lynn HOEFERS, Plaintiff, v. William H. JONES, Sr., Defendant.
• Court: New Jersey Superior Court

Page 590

288 N.J.Super. 590

672 A.2d 1299

Janet Lynn HOEFERS, Plaintiff, v. William H. JONES, Sr., Defendant.

Superior Court of New Jersey, Chancery Division Family Part, Gloucester County.

Decided April 29, 1994.

John S. Eory, of Ulrichsen, Amarel & Eory, Skillman, for Plaintiff.

Louis D. Fletcher, Sewell, for Defendant.

HERMAN, J.S.C.

In this post-judgment plenary application, defendant/father seeks termination of joint custody agreement terms requiring him to pay non-public, primary school tuition for the two children of the marriage. He asserts that as a matter of law, that pursuant to the negotiated agreement, he cannot be compelled to make such payment notwithstanding his ability to pay; further that such payment infringes on his First Amendment and State freedom of religion rights. He does not contest, however, plaintiff's authority as primary residential parent to continue the children's education at the school of her choice.

I.

On April 11, 1991 plaintiff and defendant were divorced. Plaintiff has since remarried; she currently lives with her husband in East Greenwich Township. Under a joint custodial arrangement, plaintiff was designated the primary residential parent of the parties' two children, B.J. and W.J. whose private schooling is now at issue before this court.

As part of the divorce settlement, the parties executed a comprehensive, 30-page, fully negotiated agreement which provided, in part, for defendant's payment of weekly child support of $500 until each child is emancipated ¹ and for his payment of his children's private school tuition for the year 1991-1992 as well as conditions upon which such payments would be continued thereafter. The father has made the required monthly tuition payments through the end of the 1991-1992 school year. Defendant now objects to further payment. Plaintiff seeks enforcement. The relevant Agreement provisions relating to child-rearing and education are these:

... 10. CHILD SUPPORT. (a)(2). Husband is currently paying for (B.J.'s) private schooling at King's Christian School, and W.J. will be starting in September, 1991. Husband will be responsible for private school so long as the children are doing well there and both parties agree that they remain in private school, and Husband has to have the ability to pay same. This must be discussed between the parties on an annual basis. Wife shall provide to Husband all information regarding the schooling and the tuition costs prior to Wife committing for same ...

11. CUSTODY. (a) Legal and Physical Custody. It is the intention of the parties that the parties shall have joint legal custody of the minor children, B.J. and W.J. and Wife shall be primary residential custodial parent. The parties agree that major decisions concerning (B.J.) and (W.J.) regarding the health, education, and general welfare shall be made by the parents jointly, after discussion and consultation with each other, with a view toward obtaining and following a harmonious policy in the child's best interests.

(i) Each party shall keep the other party informed as to the progress of the children's education and social adjustments.

(ii) The parties shall give support to one another in their role as parents, and each shall take into account the views of the other regarding the physical and emotional well-being of the children. The parties shall not attempt to alienate the affections of the children from the other party nor permit any third person to attempt to so alienate the affections of the children from the other party.

(iii) Each party shall notify the other of any activity that could reasonably be expected to be of significant concern to the other.

(iv) Toward that end, the parties agree to consult as necessary to discuss the child's progress. Day-to-day decisions shall be the responsibility of the Wife, who is the parent having physical custody ...

Presently at issue in this litigation is tuition payment for the school years 1992-1993 and 1993-1994.

* * *

Defendant testifies that in mid-1992 he told his former attorney that he objected to the children's continued attendance. As a former public school graduate he is a firm believer in a public school education. As an agnostic he has had ongoing concerns since the beginning of the children's schooling at King's Christian School because he objects not to their religious training per se, but the mixing of religion in everyday schooling ("I had this opinion all along ... I mistakenly held it inside since day one ..."). He acknowledges that his expressed "views" and the agreement terms are not consistent. He admits that since the 4-11-91 divorce he has not had any discussions with his former wife about the subject of education. While married, he further admits, that he took no steps to enroll either child in public school. His self-recalled, initial and last contact with King's Christian School was two school visits in Jan., 1993: the first for five minutes, unannounced; the second, a week later, for forty-five minutes where he did have an opportunity to hold "... an open-ended discussion with B.J.'s and W.J.'s principal and teachers ..." His last contact with his children was in July, 1992. He has made no requests since for visitation.

Plaintiff testifies that during the marriage the parties lived together in West Deptford Township; that the children had attended a Baptist nursery school for two years and that prior to B.J.'s enrollment in Sept., 1990 plaintiff made a thorough investigation of the West Deptford and King's Christian Schools ("I went to check out accreditation, pupil ratio, etc... I was impressed ... we both agreed that (B.J.) would go to King's Christian School ..."). She further testified that in May, 1991 she registered W.J. there as well. She can recall no discussion, no complaints from the husband. In July, 1991 she received the 1991-92 tuition coupon book which she gave to the defendant. As before, he paid without complaint, raised no objection to the children's schooling. She saw to it that he got report cards. When the children would visit, they would bring the week's work. His involvement with their children's education, she recalls, was limited to one Saturday afternoon, March, 1992 school open house ("... since the divorce I made efforts to discuss the kids' schooling with him ... I wanted a once-a-month sit down ... he thought that idea was stupid ...").

In summer, 1992 she mailed a new coupon book to the defendant as she was required to do pursuant to p (a)(2) of Section 10 of the marital agreement. He did not reply. Plaintiff first learned of defendant's objection to paying for the 1992-93 tuition through a letter from his counsel. It was not until Jan., 1993 that the defendant personally expressed to her his unwillingness to continue such payments.

* * *

In this family, pre and post divorce, it has been the mother who has investigated, evaluated the children's educational opportunities, who has made, with defendant/father's consent, the appropriate schooling choices. She has been energetically committed to every aspect of their education. She transports them, occasionally with her mother's help, to and from school daily, a 20-minute-one-way car journey. Her desire to see them continue at King's Christian School is not predicated on primarily religious-value issues, but upon her sincere belief that it is here that the children will receive the best education, will be happiest, most productive and most secure.

The court finds that the plaintiff's perceptions are well founded: It appears that both children are educationally thriving, very happy with their school, their teachers and the friends they have made ("... (W.J.) is doing very well in all classes ... a little struggle with reading ... he's now enrolled in a summer reading enrichment program ... he's a wiz at math ... (B.J.'s) report card is all Os ... O's for outstanding ... she is taking drama ..."). ²

* * *

At the post-judgment plenary hearing, each side called one additional witness; the defendant, Douglas Villanova, Principal, Samuel Mickle School, East Greenwich. Mr. Villanova described the expansive curriculum that was available to all public school primary grade students--that would be likewise available to B.J. and W.J. as township residents. It is agreed by all that this public school provides outstanding programming for its students, from those in remedial classes to the gifted and talented. The court was impressed with his testimony in detailing new reading approaches, the school's computer center, its enrichment courses, its large new gym and library, its music and art programming. The court also concludes that the principal's recitation of how the school taught values--i.e. by integrating concepts of friendship, caring, right/wrong, etc. into the curriculum--serves its children well, would serve B.J. and W.J. equally as well if they attended.

The plaintiff's witness was Mrs. Marge Savage, Senior Administrator of King's Christian School, grades K through 12. At the school for 24 years, 17 as an administrator, before that a public school teacher, like Mr. Villanova, she presented as an outstanding, dedicated educator and administrator. Mrs. Savage testified that King's Christian participates in standard national testing, P.S.A.T., S.A.T. programs, is accredited by Middle States Association of College and Schools; likewise, by the State of New Jersey. Divided into two locations, K to 6 & 7 to 12, total student population is 550. She states the average student ratio is 16 to 20 and that of its current graduating class of 29, all but two are going to college. Mrs. Savage further testified that the school faculty must be degreed teachers, state certified; that there is a salary incentive at King's Christian for teachers to pursue Master's degrees; and that 35% to 40% of all teachers have them. Tuition is approximately $2500 per child per year. Mrs. Savage, like Mr....