Opinion
DOCKET NO. A-0207-11T4
06-20-2012
MAJID REZA AZIMI, Plaintiff-Appellant, v. COLLEEN MCVEIGH-AZIMI, Defendant-Respondent.
Lisa K. Eastwood argued the cause for appellant (Eastwood, Scandariato, & Steinberg, attorneys; Ms. Eastwood, on the brief). Colleen McVeigh-Azimi, respondent, argued the cause pro se.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and Fasciale.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-44619-89.
Lisa K. Eastwood argued the cause for appellant (Eastwood, Scandariato, & Steinberg, attorneys; Ms. Eastwood, on the brief).
Colleen McVeigh-Azimi, respondent, argued the cause pro se. PER CURIAM
Plaintiff former husband appeals from orders dated January 21, 2011 and August 15, 2011, "unemancipating" his twenty-one year-old daughter (R.A.), reinstating and increasing his child support obligation, and requiring him to maintain health and life insurance benefiting R.A. We reverse, remand, and direct the judge to conduct a plenary hearing to address whether plaintiff should be obligated to pay college tuition expenses and, if so, what amount will constitute his contribution.
The parties were married in 1989, had one child, but separated prior to her birth. In 1992, the court entered a dual judgment of divorce (JOD). Pursuant to the JOD, plaintiff was obligated to pay child support of $125.00 per week.
Plaintiff asserts that defendant "persistently rebuffed and frustrated" his "ongoing efforts" to establish a relationship with R.A., and that R.A. herself has failed and refused "to respond to [his] continuing efforts." On June 18, 2010, R.A. graduated from high school after five years of attendance, and has subsequently attended college.
Pro se defendant indicated during telephonic oral argument that R.A. is currently enrolled in college.
In July 2010, plaintiff filed a motion seeking to emancipate R.A. and terminate his support and insurance obligations. The motion was unopposed, and on October 12, 2010, a Passaic County judge entered an order granting plaintiff's motion. The order declared R.A. emancipated as of her high school graduation date, terminated plaintiff's child support and medical and life insurance obligations, and vacated any wage execution in effect.
Defendant states that her attorney did not assist her in preparing opposition, and did not appear for the motion hearing because he had a scheduling conflict. The court denied defendant's request for an adjournment.
Defendant did not appeal or request reconsideration of the October 12, 2010 order.
Shortly thereafter, defendant filed a motion to require plaintiff to pay child support by wage execution, pay child support arrears, continue health and life insurance coverage, and contribute to R.A.'s college education. Plaintiff opposed the motion. On January 21, 2011, the same judge conducted oral argument, issued an oral decision, and stated:
Defendant's motion is dated October 4, 2010, prior to the October 12, 2010 order. It appears that the judge may not have been aware of defendant's motion at the time of the order. It also appears that defendant was unaware of the order at the time she made her motion, as it did not contain a request for reinstatement or increase of child support.
I am going to unemancipate[] the child. I believe that the [c]ourt's [October 12, 2010] decision was entirely proper in finding that the child was emancipated based upon the proof that was presented to the [c]ourt at the time it entered its order.Regarding defendant's application for contribution to college costs, the judge stated:
However, you can under the law unemancipate a child. And in this instance the defendant was able to demonstrate that the child is enrolled on a full time basis at college. And, therefore, the [c]ourt is going to unemancipate her and make it effective as of [June 18, 2010].
I can't just on the certifications alone make that decision. It has to be done by way of a plenary hearing consistent with the case law.
. . . .
So the [c]ourt is going to direct that a plenary hearing be held. Before that time we're going to fix a case management conference date. . . . And then we'll see what discovery might be needed on both sides in order to flesh out what's needed to comply with the Newburgh factors, which [are] really going to govern what, if any, contribution should be made by the plaintiff in that regard.
Newburgh v. Arrigo, 88 N.J. 529, 543-45 (1982).
Without conducting a plenary hearing, the judge then entered the order dated January 21, 2011 reestablishing child support and directing plaintiff to continue health and life insurance coverage benefiting R.A. Although defendant had not sought additional child support, the order increased child support to $231.00 per week. The order contemplated that a "case management conference [be scheduled] . . . to address discovery needed for plenary hearing on contribution to college," and a "plenary hearing [be scheduled] . . . to determine whether [plaintiff] has an obligation to . . . contribute to college."
The order denied defendant's application for child support arrears. There is no cross-appeal.
Before the scheduled proceedings could take place, however, the court transferred the case to Burlington County, defendant's county of residence. Defendant thereafter withdrew her application for contribution to college expenses. On August 15, 2011, the presiding Family Part judge of Passaic County entered an order indicating that defendant had withdrawn her application for college contribution, and that plaintiff was obligated to pay the amount of child support calculated at the January 21, 2011 hearing. This appeal followed.
On July 25, 2011, plaintiff's attorney sent a letter to the presiding Family Part judge in Burlington County requesting that the court enter a final order because "[d]efendant's decision to withdraw her application for college expenses will deny my client the 'final' order from which to take an appeal." On August 4, 2011, the presiding judge in Burlington County wrote a letter to the Passaic County judge stating: "Since you heard the motion and entered the child support [o]rder, it would be appropriate for you to prepare an [o]rder dismissing by consent the college contribution application and affirming the child support [o]rder previously entered." The letter noted that "[w]ith the withdrawal of the college contribution motion, the [January 21, 2011] child support [o]rder would be a final [o]rder and the appropriate subject of appeal."
The August 15, 2011 order incorrectly stated that the judge had calculated plaintiff's child support obligation as $125.00 per week. On September 13, 2011, the presiding judge modified the order to reflect child support of $231.00 per week, an amount consistent with the January 21, 2011 order. Hereinafter, we refer to the three orders collectively as "the orders appealed" or individually by date.
On appeal, plaintiff contends that we should reverse the orders appealed, declare R.A. emancipated as of June 18, 2010 (the date set in the October 12, 2010 order), and order defendant to reimburse child support paid subsequent to R.A.'s emancipation. He argues that: New Jersey law does not permit unemancipation of an already emancipated child; the judge erred by reversing her earlier finding of emancipation without conducting a plenary hearing; and the judge erred by increasing child support because defendant did not request an increase or present a prima facie case of changed circumstances.
We are limited in our review and "'do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)); see also Cesare v . Cesare, 154 N . J . 394, 412 (1998) (stating that family court factfinding warrants deference because family courts have "special jurisdiction and expertise in family matters"). Nonetheless, we confer no deference on a trial court's interpretations of the law, which we review de novo to determine whether the trial court correctly adhered to the applicable legal standards. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").
In New Jersey, the emancipation of a child represents "the conclusion of the fundamental dependent relationship between parent and child." Dolce v. Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006). Emancipation is "the act by which a parent relinquishes the right to custody and is relieved of the duty to support a child." Newburgh, supra, 88 N.J. at 543. This court has explained:
Emancipation may occur by reason of the child's marriage, by court order, or by reaching an appropriate age, and although there is a presumption of emancipation at age eighteen, that presumption is rebuttable. In the end the issue is always fact-sensitive and the essential inquiry is whether the child has moved "beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own."Although parents generally do not have a duty to support their children beyond the age of majority, certain exceptions are well-established, such as contribution to college costs, the exception at issue in this case. Weitzman v. Weitzman, 228 N.J. Super. 346, 356 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989).
[Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995).]
We begin by addressing plaintiff's contention that the judge was unauthorized to unemancipate R.A. Plaintiff relies upon Kruvant v. Kruvant, 100 N.J. Super. 107 (App. Div. 1968). In that case, after the defendant-father stopped paying child support, based on his interpretation of the parties' JOD that his obligation terminated once the child reached age twenty-one, the mother sought to reinstate support payments to assist with care of the adult child, who was twenty-five years old and disabled at the time of the mother's application. Id. at 111. The court observed that after attaining majority the child had lived in his own apartment, apparently taken a trip to Europe, held two jobs, and attended various schools. Id. at 120. Thus, the court stated:
[O]n the basis of the record presently before us, the court was without statutory jurisdiction to reopen and modify the [JOD] for the purpose of enforcing defendant's alleged obligation to contribute to [the child's] care. Once defendant's liability under the [JOD] had been terminated (here when [the child] became 21 and was not then disabled), it could not be restored.
[Ibid. (emphasis added).]
The decision in Kruvant does not support plaintiff's proposition that a court cannot unemancipate an already emancipated adult child. It was not because the child in that case was already emancipated that the court reversed the order granting the mother's support application; rather, the court did so because the child was not disabled prior to attaining majority. See also Filippone, supra, 304 N.J. Super. at 312 (rejecting the proposition that the adult child's "incurring of a serious disability almost a year after emancipation restored him to an unemancipated status").
Plaintiff has provided no other authority to support his position or convince us to constrict the equitable powers of our family courts. Indeed, as was stated in Sakovits v. Sakovits, 178 N.J. Super. 623, 631 (Ch. Div. 1981), "it would be propitious to extend this trend of requiring contribution to the college and/or professional education of children to cases where the child has at one point been formally declared to be emancipated, as a blanket proposition." There, the court explained:
This is especially important in today's society . . . where a brief hiatus between high school and college is becoming commonplace. During the hiatus the child may very well move out of the parental home and attain full-time employment, with the noncustodial parent successfully applying to have the child declared emancipated. If we were to hold that the college education exception should not be extended to
situations where the child had been declared emancipated, then the child would forever be estopped from seeking such contribution from his parents. This court deems such a situation to be totally inequitable. When a declaration of emancipation is entered, all a judge has before him are the facts as they exist at that time. This court, therefore, finds that . . . regardless of the fact the child may have been formally declared emancipated, the parents may in a given case be called upon to contribute to the college education of such child.
[Ibid. (emphasis omitted).]
We intimate no factual conclusion as to whether there was any "hiatus" in this case. Such determination must be made by the trial court in the first instance in light of any evidence presented at the plenary hearing on remand.
We agree with this analysis and therefore reject plaintiff's proposition that just because an adult child has been formally emancipated, he or she may not be unemancipated to receive support in the form of college contribution. See also White v. White, 313 N.J. Super. 637, 643-44 (Ch. Div. 1998) (concluding that the adult child's application "should not automatically be barred because [he] was previously emancipated" from 1992 to 1996, which "undoubtedly represents more than a 'brief hiatus'" (quoting Sakovits, supra, 178 N.J. Super. at 631)).
Next, although defendant had withdrawn her application to require plaintiff to contribute to R.A.'s college expenses, it is clear from oral argument before us that defendant is seeking such relief, and that it should be considered on remand.
"In appropriate circumstances, parental responsibility includes the duty to assure children of a college and even of a postgraduate education such as law school." Newburgh, supra, 88 N.J. at 544. In Newburgh, the Court held:
In evaluating the claim for contribution toward the cost of higher education, courts should consider all relevant factors, including (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; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child.
[Id. at 545.]
Plaintiff argues that if the trial court had conducted a plenary hearing, he would have presented evidence of R.A.'s "lackluster" high school performance, including frequent absences and "eight failing grades." He also contends that he sent her gifts and cards, but that she never reciprocated his efforts, and that as a result the two have a "non-existent relationship." We therefore direct the judge to conduct a plenary hearing to consider the Newburgh factors.
Finally, plaintiff also contends that in increasing his child support obligations the judge erred by not determining whether changed circumstances existed, Lepis v. Lepis, 83 N.J. 139, 157 (1980), and that an increase was unwarranted because defendant never requested such an increase when she made her motion.
It is well-settled that the party seeking modification to a child support arrangement has the burden of proof and must make a prima facie showing of changed circumstances. Ibid. "The proper criteria are whether the change in circumstance is continuing and whether the agreement or decree has made explicit provision for the change." Id. at 152. The factors listed at N.J.S.A. 2A:34-23(a) are integral to determination of child support modification. Id. at 146.
Here, defendant made no request for an increase in child support. Indeed, at the time of plaintiff's motion, there was no obligation in effect from which she could have sought such an increase, as R.A. had already been emancipated by the October 12, 2010 order. Further, defendant's motion did not request reinstatement of child support, and in the absence of such a request, the judge erred by reinstating that obligation. Rather, the appropriate question at the time of the January 21, 2011 hearing was whether plaintiff should contribute to R.A.'s college costs. This question requires a plenary hearing to consider the Newburgh factors.
We reverse those portions of the January 21, 2011 order reinstating plaintiff's child support and health and life insurance obligations, vacate the orders dated August 15, 2011 and September 13, 2011, and direct the judge to conduct a plenary hearing to determine whether plaintiff must contribute to R.A.'s college costs and, if so, in what amount. The October 12, 2010 order shall remain in full effect pending the remand proceedings consistent with this opinion.
Because this case has been transferred, a judge of Burlington County should consider plaintiff's motion on remand. At that time, the court shall consider reimbursements or credits for any child support payments that plaintiff may have made pursuant to the orders appealed.
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Reversed and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION