White v. White

• Decision Date: 19 March 1998
• Citation: 713 A.2d 583,313 N.J.Super. 637
• Parties: Mary WHITE, Plaintiff, v. Robert WHITE, Defendant.
• Court: New Jersey Superior Court

Page 637

313 N.J.Super. 637

713 A.2d 583

Mary WHITE, Plaintiff, v. Robert WHITE, Defendant.

Superior Court of New Jersey,

Chancery Division,

Family Part,

Sussex County.

Decided March 19, 1998.

Mary White, pro se.

Roger Serruto, West Orange, for Laura White and Brian White.

GRAVES, J.S.C.

A dual judgment of divorce was entered on June 15, 1995 dissolving the marriage between the parties. This is a post-judgment application to intervene by two children, ages 18 and 25. Both children seek to intervene in order to pursue claims against their mother, Mary White, for child support and college expenses. For the reasons that follow, the request to intervene by the 18 year old daughter, Laura White, is denied. The request to intervene by the 25 year old son, Brian, is granted; however, his request for an order compelling his mother to pay him child support and/or to contribute to his college expenses is denied.

FACTUAL BACKGROUND

Mr. and Mrs. White were married for more than 29 years prior to their divorce. They have two children: Brian was born on August 2, 1972 and Laura was born on November 19, 1979. In a written decision dated May 10, 1995, the trial judge noted that "Brian is now 22 years old and emancipated." The judgment of divorce provides that the parties are to have joint legal custody of Laura with Mr. White being the custodial parent. Mrs. White was ordered to pay child support in the amount of $75.00 per week. With respect to Laura's college expenses, Mr. and Mrs. White are required to contribute "in proportion to their income."

LAURA'S APPLICATION

Laura has certified that she is now a full-time student at Cedar Crest College in Allentown, Pennsylvania and that tuition for the 1997-1998 school year is $10,963.00 per semester. Fortunately, Laura receives a financial aid award in the amount of $7,062.50 per semester. Laura acknowledges that her mother has "expressed an interest in helping me financially" and that she has promised to deposit money into a bank account at college for Laura's benefit. Even though there has been no showing that Mrs. White is unwilling or unable to carry out her promises, Laura seeks a court order that will require her mother "to pay me child support or some other alternative pay schedule" while she attends college. Furthermore, Laura has asked the court "to order my mother to produce the appropriate financial information so the court may determine what child support should be paid to me directly on a weekly basis throughout my college years so that I may obtain my education at Cedar Crest College."

In her reply certification, Mrs. White indicates that she has an excellent relationship with her daughter and that Laura was "badgered" into signing her certification by "my former spouse and his lawyer." According to Mrs. White, she is currently paying child support in the amount of $75.00 per week, pursuant to the judgment of divorce, as well as her fair share of Laura's college expenses.

Whether or not Laura should be allowed to intervene is governed by Rules 4:33-1 through 4:33-3. Laura contends that since she has an interest in obtaining child support and financial assistance for college, she should be allowed to intervene. Rule 4:33-1, reads as follows:

Upon timely application anyone shall be permitted to intervene in an action if the applicant claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede the ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

Where intervention of right is not allowed, one may obtain permissive intervention under Rule 4:33-2:

Upon timely application anyone may be permitted to intervene in an action if his claim or defense and the main action have a question of law and fact in common ... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

Permission to intervene should be liberally construed in appropriate cases. Atlantic Employers v. Tots and Toddlers, 239 N.J.Super. 276, 280, 571 A.2d 300 (App.Div.1990), certif. den. 122 N.J. 147, 584 A.2d 218 (1990). Nevertheless, intervention should be denied if the applicant's interests are adequately represented by existing parties and/or intervention will prejudice the rights of one of the original parties. This is the case with respect to Laura's application. The judgment of divorce resolved the very issues that Laura now seeks to revisit. Naturally, if circumstances change, the court may re-examine the issues of child support and college expenses; however, Laura has not claimed that the determinations set forth in the judgment of divorce are inequitable or unfair because of changed circumstances.

In Johnson v. Bradbury, 233 N.J.Super. 129, 136, 558 A.2d 61 (App.Div.1989) the court held that the right to seek or enforce a parental obligation for college expenses "is enforceable not only at the instance of a custodial parent against a non-custodial parent, but at the child's instance as well." As the custodial parent, Mr. White is able to seek a court review of Mrs. White's parental obligations if changed circumstances warrant such a review. The court concludes there is no present need or purpose for Laura to intervene and "so unseemly a course should be avoided whenever possible." Martinetti v. Hickman, 261 N.J.Super. 508, 513, 619 A.2d 599 (App.Div.1993). Accordingly, Laura's application is denied.

BRIAN'S APPLICATION

Brian graduated from high school in June of 1990 and enrolled at Seton Hall University that fall. Brian explained in his certification that "Due to my immaturity, I was unable to produce grades that were acceptable to my parents and subsequently disenrolled. It was agreed, between my parents and I, that I would spend a year at a less expensive college to bring up my grades and also to prove to my parents and myself that I had the initiative to attend a four-year college on my own." In the summer and fall of 1991, Brian attended the County College of Morris. In October of 1991, Brian's mother obtained a temporary domestic violence restraining order that barred him from the marital home. The domestic violence order was eventually dismissed; however, according to Brian, his parent's divorce, and the resulting disruption and emotional distress, had a negative impact on his ability to obtain passing grades. Since it was too late for him to withdraw, he failed all of his classes at Morris County Community College in the fall of 1991. For the next several months, until he enrolled in the Navy in the summer of 1992, Brian lived on his own and he did "odd jobs to support myself."

In the summer of 1992, Brian enrolled in the Navy and served until he was honorably discharged in the summer of 1996. In the fall of 1996, Brian returned to Morris County College as a full-time student to obtain an associates degree in biology. During the fall of 1996 and spring of 1997, Brian demonstrated his scholastic aptitude by attaining mostly "A's." He was included on the Deans List in the spring of 1997. Thus, despite his initial lack of success, first at Seton Hall University and then at Morris County Community College, it now appears that Brian has the necessary motivation and academic ability to successfully complete college. Brian has indicated that he intends "to apply to Rutger's University for the fall 1998 semester while finishing my Associates Degree at Morris County College."

Brian has certified that his tuition costs are approximately $5,000.00 per year at Morris County College. This does not include the cost of his books, room and board or commuting expenses. To assist him in obtaining a college education, Brian has requested that "The court declare me unemancipated and order the plaintiff to pay child support to me on a weekly basis to be determined by the court." Brian has not provided any information pertaining to his training and work experiences while in the Navy or the availability of financial assistance as a result of his military service. Moreover, Brian has not filed a Case information statement or provided any information regarding his assets, income or ability to obtain employment...