Nebel v. Nebel, M--2995

• Decision Date: 02 February 1968
• Docket Number: No. M--2995,M--2995
• Citation: 239 A.2d 266,99 N.J.Super. 256
• Parties: Jeanne D. NEBEL, Plaintiff, v. Arthur J. NEBEL, Defendant.
• Court: New Jersey Superior Court

Page 256

99 N.J.Super. 256

239 A.2d 266

Jeanne D. NEBEL, Plaintiff, v. Arthur J. NEBEL, Defendant.

No. M--2995.

Superior Court of New Jersey Chancery Division.

Feb. 2, 1968.

Harold G. Pierson, Plainfield, for plaintiff.

Colin M. Dillon, Elizabeth, for defendant (Pollis, Williams, Pappas & Dillon, Elizabeth, attorneys).

WOOD, WM. FILLMORE, J.C.C. (temporarily assigned).

This case raises the question of whether this court has authority to require a divorced husband, on motion of the wife, to contribute toward the college expenses of an 18-year-old son in the mother's custody. The New Jersey law on the question is not entirely certain. Our Supreme Court has never ruled thereon, and there is room for disagreement as to the meaning of the decisions of the former Court of Errors and Appeals and the Appellate Division of the Superior Court.

Final judgment of divorce was entered in this case on June 10, 1967. The preceding judgment Nisi, dated March 9, 1967 and adopting the provisions of an earlier agreement between the parties, gave the plaintiff wife custody of the two minor children of the marriage, Jeffrey and Anne, then 18 and 11 years of age, respectively, and ordered the defendant to pay plaintiff $25 a week for the support of each of them and $50 a week for support of herself. A third child, John, was 21 and emancipated. At the time of the judgment Nisi Jeffrey was a high school senior in Pingry School, a private institution, and John was a college senior at Princeton University. Both boys graduated at the end of the then current school year. In September 1967 Jeffrey entered Lafayette College.

By her motion, returnable November 3, 1967, plaintiff sought an order requiring defendant to pay for Jeffrey's college tuition or, in the alternative, to pay increased support for her and the two minor children so that she herself would be able to pay the tuition. In her supporting affidavit she alleged that at the time of the judgment Nisi defendant had promised to contribute voluntarily a minimum of $1,000 a year, and more if his financial circumstances improved, toward Jeffrey's tuition and other college expenses and had assured her that it would not be necessary to provide for such expenses by court order. Defendant filed an answering affidavit claiming that he had stated only that he would voluntarily contribute something toward the college expenses if he was 'financially able to do so.' I am unable, on the basis of the affidavits alone, to determine the credibility of these inconsistent statements. However, in view of the ruling of law and finding of fact set forth herein, it is unnecessary to do so. Even if I accepted plaintiff's version of the conversation, I would be unable to say that the conversation amounted to a legally binding agreement. Hence, for the purpose of this decision, I shall assume that there was no such agreement.

Incidentally, I am of the opinion that there can be no valid legal distinction between ordering defendant to pay college expenses directly and ordering him to do so indirectly under the guise of increased support.

Defendant opposed the motion, contending that (1) this court lacks the power to require him against his will to pay college expenses, and (2) even if the court has that power, his financial condition is such that he should not be called upon to contribute for Jeffrey's support any more than the sum previously ordered. Defendant did not question Jeffrey's scholastic aptitude.

At the conclusion of the oral argument on the motion I determined that, considering defendant's financial assets and earning capacity, he was well able to contribute toward college expenses despite his claim of limited current income. I ruled that he must pay half of such expenses or $1500 a year, whichever was lesser, unless he was shielded from such an obligation by the law of this State. I reserved decision on the law and instructed the attorneys to submit memoranda thereon. I have now received and carefully considered their memoranda.

There is no published decision by a New Jersey appellate court which required a father to pay college or professional school expenses. A few cases have held that, under the circumstances there present, the father need not pay such expenses and thus indicated, at least by implication, that payment of such expenses may be ordered under different circumstances. Streitwolf v. Streitwolf, 58 N.J.Eq. 570, 43 A. 904, 45 L.R.A. 842 (E. & A.1899); Rufner v. Rufner, 131 N.J.Eq. 193, 24 A.2d 180 (E. & A.1941); Jonitz v. Jonitz, 25 N.J.Super. 544, 96 A.2d 782 (App.Div.1953). Cf. Foote v. Foote, 68 A. 467 (Ch.1908), not officially reported, where the court, by implication, indicated that college expenses might be required of the father after the children had completed their pre-college preparation. Cf. also Ziesel v. Ziesel, 93 N.J.Eq. 153, 115 A. 435, 18 A.L.R. 896 (E. & A.1921), wherein the court mentioned the father's limited income as one of the reasons for not requiring him to pay the expenses of his son at a boarding high school. But cf. Werner v. Werner, 7 N.J.Super. 229, 72 A.2d 894 (App.Div.1950).

In Streitwolf, decided in 1899, the Court of Errors and Appeals, the State's then highest court, reversed an order of the trial court which had directed the father to pay law school expenses for a 20-year-old son. This is the first published decision on the subject by the courts of this State.

Tremendous changes have occurred in our educational needs and patterns since 1899. In view of such changes Streitwolf might be deemed out of date. Nevertheless, if that case was factually similar to this one and was the latest word on the subject by an appellate tribunal, this court, being at the trial level, would be duty-bound to follow its ruling and to leave the task of updating it to the appropriate appellate court. Happily, significant distinctions between the two cases are apparent and both the Court of Errors and Appeals and the Appellate Division of the Superior Court have spoken more recently upon the subject. Rufner v. Rufner, supra; Cohen v. Cohen, 6 N.J.Super. 26, 69 A.2d 752 (App.Div.1949); Jonitz v. Jonitz, supra. But cf. Werner v. Werner, supra.

In Streitwolf the court was confronted with two circumstances not present here. First, the application was for only Pendente lite support. Secondly, although the child was living with plaintiff mother, custody had not been awarded to either parent. That the court was influenced primarily by these circumstances and did not purport to state a general principle applicable to all situations, seems clear from the last paragraph of the opinion. Said the court, after reciting the facts of the case and specifically noting that the order appealed from was for only Pendente lite support and that no custody award had ever been made:

'From this recital it appears that the application to the court of chancery was virtually for an order compelling the husband, against his own judgment, by way of supporting his wife Pending suit, to make a grown-up son a lawyer and to pay the expense of his professional education. We do not find that the husband had committed himself to this course by his own conduct or that he had become bound to take it by any previous adjudication. For reasons already stated we think that the order appealed from was an undesirable extension of a power that exists primarily for the protection of the wife. The son's ambition in the direction of a liberal education is in itself commendable, but Upon the facts now before us and At this stage of the suit, the father cannot be forced to gratify that ambition * * *.' 58 N.J.Eq., at p. 579, 43 A. at p. 908. (emphasis added)

Earlier in the opinion the court discussed the well established principle that Pendente lite support is based upon necessity and ruled that 'professional training is not a general necessity, but is a special advantage.' (At p. 576, 43 A., at p. 907). Here we have passed the Pendente lite stage and custody has already been awarded to plaintiff. Cf. Ziesel v. Ziesel, supra, 93 N.J.Eq., at pp. 157--158, 115 A. 435.

In Rufner the judgment Nisi, pursuant to the terms of an agreement between the parties, required defendant husband to pay $50 a week for the support of plaintiff and the two daughters of the marriage, and also to pay the cost of the daughters' education, including college expenses, if they desired college training. Defendant complied with the order for nearly five years, during which period the daughters entered college. Thereafter, without the benefit of court order, defendant reduced the weekly payments to $30 and fell into arrears...