Opinion
DOCKET NO. A-0824-11T3
09-26-2012
R.A., Plaintiff-Appellant, v. E.A., Defendant-Respondent.
David Salvatore argued the cause for KayKay E. Davis-Daniels argued the cause for respondent (Daniels & Davis-Daniels, attorneys; Ms. Davis-Daniels, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Ostrer.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1181-05.
David Salvatore argued the cause for appellant (Wernik & Salvatore, attorneys; Mr. Salvatore, on the brief).
KayKay E. Davis-Daniels argued the cause for respondent (Daniels & Davis-Daniels, attorneys; Ms. Davis-Daniels, on the brief). PER CURIAM
Plaintiff appeals from the trial court's order denying his motion to emancipate his son, and the subsequent order denying his motion for reconsideration. We reverse and remand for a plenary hearing.
I.
The parties were divorced in September 2005 after over nineteen years of marriage. Their son was born in 1990. He graduated from high school in June 2010, at the age of nineteen-and-a-half. He began attending Brookdale Community College in the Fall 2010. Plaintiff paid child support of $271 a week as of January 2009, and $277 effective February 2, 2011, based on cost-of-living adjustments to the child support amount set in the parties' property settlement agreement (PSA).
In September 2010, defendant filed a motion seeking plaintiff's payment of 100 percent of their son's college expenses, although the PSA called for plaintiff to bear sixty percent if their son were enrolled full-time and maintained a "C" average. Plaintiff cross-moved for emancipation effective June 2010, asserting that his son was not attending school full-time. In November 2010, the court denied plaintiff's request for emancipation, finding the child was enrolled full-time. The court also denied the motion to modify the allocation of college expenses and ordered plaintiff to bear his proportional share of those expenses after accounting for scholarships and grants, which apparently covered most or all of the child's expenses. Neither party appealed.
Plaintiff again sought his son's emancipation effective on June 2, 2011, the day he filed his motion. Although he had received his son's schedule of Spring courses, plaintiff asserted that defendant had failed to provide him with the child's Spring grades, as the PSA required, to demonstrate he maintained full-time status with a "C" average. According to his son's Fall 2010 transcript, his son withdrew from his algebra course, and earned only eight credits. The transcript also indicated "erratic attendance and/or excessive absences" for multiple monitoring periods during the semester. Plaintiff argued his son therefore was not likely a full-time student.
The child earned 4.00 credits and a C+ final grade in reading analysis/study skills; 1.00 credit and a B in college success seminar; and 3.00 credits and a B in English comp: writing process. The transcript reported the term GPA as 3.00.
I can only assume that the Defendant's continued failure to provide me with proof of [our son's] academic progress is a tacit admission that [he] is neither attending school on a full time basis nor maintaining a "C" or better grade point average as required by the clear terms of our Property Settlement Agreement.He also noted that for the upcoming Fall 2012 semester his son was registered for three of the same classes he had been registered for in the Spring. Plaintiff therefore questioned whether his son completed a full-time course-load in the Spring.
Defendant opposed the motion and cross-moved for other relief, including an order compelling plaintiff to pay his share of their son's medical expenses. She stated in her pro se response that the child suffered from kidney stones and was hospitalized in February 2011 for "a procedure on his kidney that required general anesthesia." Although the PSA conditioned continued support after age eighteen on attendance at college on a full-time basis for four uninterrupted years after high school, it allowed an exception "if such interruption is caused by medical reasons, whichever last occurs."
Defendant also submitted a May 22, 2011 letter from Brookdale Community College to the child stating that his student aid was approved and his "Probation/Appeal has been granted with the stipulation that [he] must earn credit for 100% of courses attempted (No W, F, or NC grades) and earn at least a 2.00 GPA for the term."
The child submitted an unsworn letter to the court, opposing his father's motion. He stated he withdrew from algebra in the Fall 2010 "from fear of damage to my GPA." He stated his Spring 2011 semester grades "had declined somewhat due to my health, and adjusting to the workload." He asserted that his medical issues continued to present an issue. He also stated that if child support were terminated, he would be forced to work full-time to contribute to his needs. He admitted that he struggled during his second semester, and expressed his regret that his father did not support his efforts, stating, "If he truly were searching to find the best way for me to succeed, I'd think my father would wish to help me to improve my college experience, rather than to stop mid-way and give up."
Although plaintiff requested oral argument, the court denied the motion on the papers in a July 8, 2011 order. In a written statement of reasons, the court noted that whether a child should be deemed emancipated is a fact-sensitive determination, and that a child's full-time participation in post-secondary education is an indication that the child has not moved beyond the influence of his or her parents and achieved independence. Although the court found that the parties' son "was not earning sufficient credits to be considered a full-time student during the fall 2010 semester," he was "currently enrolled as a full time student now." The court concluded that emancipation was unjustified.
The court ordered the child and defendant to provide the plaintiff with information regarding the son's academic status on a regular basis. The court denied defendant's cross-motion as she had not established the unreimbursed portion of the child's medical expenses, nor established that she conferred about non-emergency procedures.
Plaintiff moved for reconsideration, emphasizing that the child's class schedule for the upcoming Fall 2011 semester indicated he had not been a full-time student. Plaintiff complained that he had still not received the child's Spring semester grades. The PSA conditioned the child's non-emancipation, and the parties' support of college expenses on the child "provid[ing] to each party a copy of his course schedule prior to the beginning of each semester, and a copy of his grade report within seven (7) days of receipt by the child." Plaintiff also questioned his son's commitment to his education, noting that he repeated his senior year in high school. Plaintiff sought oral argument.
Defendant cross-moved again for plaintiff's contribution toward medical expenses, this time submitting proof of those expenses unreimbursed by insurance. She submitted evidence that the parties' child was treated in the emergency room in August 2011 for a urinary condition. She also submitted an unsworn note dated August 4, 2011 from a urologist stating that the parties' child was currently under his care for "H.S. Purpura and kidney stone and hematuria." She also blamed plaintiff for his estrangement from his son, noting that plaintiff had filed a motion in February 2009 to terminate his every other week visitation with his son.
The court denied plaintiff's motion on the papers in a September 16, 2011 order. The court summarized the reasons it denied plaintiff's original emancipation motion:
4. In denying the motion, this court relied on defendant's proof that established that [the parties' son] was enrolled as a full-time student for the spring and fall 2011 semesters; had achieved a GPA of 3.0 for the fall 2010 semester; and had provided all of this information to plaintiff as soon as it was received. The court also accepted [the parties' son's] explanation that one course was dropped as he was doing poorly and did not want his GPA to suffer. He explained that the poor performance was due to health problems.
The court then concluded that the record evidence indicated the parties' child remained a full-time student; and even if he temporarily fell behind, that by itself did not indicate the child had become independent to justify emancipation. The court was also persuaded that the child's academic difficulties were caused by health problems.
7. [Plaintiff] is hoisted on his own petard by attaching [his son's] registration statement for the fall 2011 semester to his motion. This not only disproves his claim that he has not been kept abreast of [his son's] enrollment status but shows that [his son] is currently enrolled as a full time student taking 13 credits. In addition, this exhibit shows that the entire amount of [his] modest tuition at Brookdale was
covered by a federal Pell Grant and a federal Educational Opportunity Grant. The PSA ¶ 3.7 obligates plaintiff to pay 60% of [the parties' son's] college expenses. Because of these grants plaintiff is absolved of this expense.
8. Instead of glowing with pride over his son's accomplishments, plaintiff seeks to avoid the child support obligation he agreed to [in] his [] PSA and that is mandated by our case law. It bears noting that had [his son] chosen a more costly college and had he not qualified for the extensive financial aid he currently enjoys, plaintiff would have been obligated for much, much more tha[n] his current weekly obligation.
9. Even if [the parties' son] dropped a class last year which resulted in falling below the twelve-credit requirement for a full-time matriculated student, a brief interruption in education unaccompanied by other indicia of independent status is not sufficient to warrant emancipation. See L.D. v. K.D., 315 N.J. Super. 71, 77 (Ch. Div. 1998). The privilege of parenthood carries with it the duty to assure a necessary education for children. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). This obligation is not a game of "touch move chess."
10. In addition, defendant provides ample additional evidence to corroborate [the parties' son's] explanation that dropping a course last year was prompted in part by health problems.
[Footnote omitted.]
Plaintiff filed a notice of appeal from the July 8 and September 16, 2011 orders. Without plaintiff's objection, defendant included evidence of subsequent motion practice with her opposition brief. Through a series of text messages, the parties' child apparently informed his father on December 23, 2011 that he had dropped out of college and was emancipating himself. Defendant executed a consent to emancipation for the Probation Division January 10, 2012. Meanwhile, plaintiff filed a motion dated January 5, 2012 seeking emancipation and reimbursement of child support, and certain medical expenses. Defendant cross-moved for denial of plaintiff's motion and for an order requiring plaintiff to maintain health insurance for the child until he reached twenty-six years of age. The court, in a February 17, 2012 order, noted that plaintiff's request to emancipate the child was moot, as the child "informed the Plaintiff on 23 December 2011 that he would not be returning to college." The court granted the cross-motion in its entirety, and ordered plaintiff to pay $2,000 in attorney's fees.
Plaintiff presents the following points for our consideration:
I. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO ENFORCE THE SPECIFIC TERMS OF ARTICLE 3.7 OF THE PARTIES' PROPERTY SETTLEMENT AGREEMENT DATED SEPTEMBER 8, 2005.
II. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO RECONSIDER ITS ORDER DATED JULY 8, 2011 BECAUSE IT FAILED TO ADDRESS THE FACT THAT NO TRANSCRIPT WAS EVER PROVIDED REGARDING THE PARTIES' SON'S SPRING
2011 SEMESTER AT BROOKDALE COMMUNITY COLLEGE.
III. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO ALLOW ORAL ARGUMENT FOR THE MOTIONS DECIDED ON JULY 8, 2011 AND SEPTEMBER 16, 2011.
II.
We are constrained to reverse and remand for a hearing after the parties are afforded an opportunity to take discovery. We are required to accord deference to the Family Court's fact-finding because of the court's "special expertise" in family matters and the court's "superior ability to gauge the credibility of the witnesses who testify before it." Div. of Youth & Family Servs. v. F.M., ___ N.J. ___, ____ (2012) (slip op. at 49); see also Cesare v. Cesare, 154 N.J. 394, 413 (1998). We likewise defer to the Family Court's decisions that are committed to the court's exercise of discretion, and will upset them only for an abuse of discretion. Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006) (determination of whether there exist changed circumstances warranting modification of support turns on Family Court's "discretionary determinations . . . based upon their experience as applied to all the relevant circumstances presented, which we do not disturb absent an abuse of discretion").
However, we owe no special deference to the trial judge's "interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007). Also, if the "court ignores applicable standards, we are compelled to reverse and remand for further proceedings." Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008) (reversing and remanding for new determination of allocation of college expenses where court fails to consider all the required factors).
While we respect the Family Court's special expertise, we may exercise more extensive review of trial court findings that do not involve a testimonial hearing or assessments of witness credibility. Cf. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (stating that deference to Family Court conclusions is not required where "no hearing takes place, no evidence is admitted, and no findings of fact are made"). A judge may not make credibility determination or resolve genuine factual issues based on conflicting affidavits. Conforti v. Guliadis, 245 N.J. Super. 561, 565-66 (App. Div. 1991), modified on other grounds, 128 N.J. 318 (1992). When the evidence discloses genuine material issues of fact, a Family Court's failure to conduct a plenary hearing to resolve those issues is a basis to reverse and remand for such a hearing. See, e.g., Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982); Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. 1968), superseded on other grounds, N.J.S.A. 2A:17-56.23a, as recognized in, Mallamo v. Mallamo, 280 N.J. Super. 8, 13 (App. Div. 1995). We must always determine whether there is sufficient credible evidence in the record to support the trial court's factual determinations. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).
The determination of whether a child should be emancipated is a fact-sensitive one. Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997). Several well-established principles guide the court's inquiry, which is, essentially, "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.'" Id. at 308 (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)).
"Emancipation can occur upon the child's marriage, induction into military service, by court order based on the child's best interests, or by attainment of an appropriate age." Newburgh v. Arrigo, 88 N.J. 529, 543 (1982) (citations omitted). Reaching the age of majority, eighteen, creates a prima facie case for emancipation. "Generally parents are not under a duty to support children after the age of majority." Ibid. Thus, upon a showing the child has reached the age of majority, the opponent of emancipation must show there is basis to continue support. Filippone, supra, 304 N.J. Super. at 308 ("although there is a presumption of emancipation at age eighteen, that presumption is rebuttable").
We have held that a child's full-time attendance in post-secondary education may be a basis to delay emancipation. "[W]hile parents are not generally required to support a child over eighteen, his or her enrollment in a full-time educational program has been held to require continued support." Patetta v. Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003). See also Limpert v. Limpert, 119 N.J. Super. 438, 442-43 (App. Div. 1972); Moehring v. Maute, 268 N.J. Super. 477, 480-81 (Ch. Div. 1993) (child past age of majority who is full-time student, diligent in her studies, getting good grades, and still dependent on her parents, is not emancipated and is entitled to parents' support if they have the ability to pay).
We have recognized that full-time or uninterrupted college attendance is not invariably required to forestall emancipation. See Keegan v. Keegan, 326 N.J. Super. 289, 295 (App. Div. 1999) (holding that a hiatus from college during which the child worked full-time did not result in emancipation); see also Sakovits v. Sakovits, 178 N.J. Super. 623, 631-32 (Ch. Div. 1981) (suggesting that emancipation should not follow "brief hiatus" between high school and college, which is becoming more common, but in view of four year hiatus, it was "inappropriate to require plaintiff to contribute to [the child's] college education").
The court must consider the reasons for the child's less than full-time enrollment, or the child's interrupted attendance, as well as all other factors, in resolving the essential inquiry of the child's independence. See Patetta, supra, 358 N.J. Super. at 93-94 ("The demonstrable needs of the child . . . are determinative of the duty of support."). On the other hand, a child's lack of commitment to his or her education, or the unexcused failure to remain a diligent full-time student may be a basis for emancipation. We addressed the issue in Filippone, supra:
Surely, as the child of an adequately affluent professional family, [the child] could reasonably assume that his parents would continue to support him if he were able to do so [that is, attend college] successfully, and, in the circumstances, the Newburgh doctrine would require them to do so. However, Newburgh does not require that level of support and concomitant deferred emancipation for a child unable to perform adequately in his academic program. We are satisfied that Ted's failure to pass any of his courses in the spring 1995 semester, reinforced by his failure to return to
school in the ensuing fall semester, virtually mandated the judge's conclusion that emancipation could be no longer deferred and that the parents should be relieved of the support obligation as of the end of the 1994-1995 school year, namely, the June 1, 1995, date fixed by the court.
[304 N.J. Super. at 311-12.]
In assessing the child's academic performance, participation, and commitment, the court will often require access to the child's academic records. A custodial parent receiving support for the child is obliged to provide confirmation to the supporting parent of the number of academic credits a child is taking and the child's grade reports. Tretola v. Tretola, 389 N.J. Super. 15, 20 (App. Div. 2006). A child's refusal to disclose those records is itself an indication of the child's asserted independence, and his or her willingness to move beyond his or her parent's sphere of influence. A mature child who has already reached the age of majority may not reasonably expect a parent to continue to provide support while withholding information essential to determining whether support is warranted. See Van Brunt v. Van Brunt, 419 N.J. Super. 327, 333 (Ch. Div. 2010) (holding that a child may not invoke federal statutory right to privacy over her college records, blocking her father's ability to verify her education status, while "simultaneously asserting that she is unemancipated and entitled to mandatory child support and college contribution" from him).
We also are not bound by the agreement of parents to emancipate a child upon the satisfaction of certain prescribed conditions. "The right to child support belongs to the child and 'cannot be waived by the custodial parent.'" Pascale v. Pascale, 140 N.J. 583, 591 (1995) (quoting Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993)). See also Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006) ("Of course, a parent cannot bargain away a child's right to support because the right to support belongs to the child, not the parent."); Patetta, supra, 358 N.J. Super. at 94-95 (declining to enforce parents' agreement to emancipate child at age eighteen); R.H. v. M.K., 254 N.J. Super. 480, 488 (Ch. Div. 1991). On the other hand, based on contractual and equitable principles, we have held parents can bind themselves "by consensual agreement, voluntarily and knowingly negotiated, to support a child past majority, and such agreement is enforceable if fair and equitable." Dolce, supra, 383 N.J. Super. at 18.
The trial court expressed an understanding of many of these principles. Where we part company with the court is with its fact-finding that the child remained a full-time student, or, to the extent he did not, that his reduced academic load resulted from medical problems. The record evidence is simply insufficient to support the court's finding.
The transcript of the child's Fall 2010 term indicates that he withdrew from a four credit course, resulting in a less than full-time course-load. He also was recorded as having erratic attendance in two of his other classes. While the child stated that he withdrew from the algebra class to prevent a drop in his overall grade point average, the record is silent on the extent to which the child was diligent in his efforts. We note there is no claim that health issues affected the child's Fall 2010 performance.
We note that the child's letters were unsworn and, under our rules, not cognizable evidence in opposition to plaintiff's motions. R. 1:6-6. However, plaintiff did not object to the court's reliance on the letters on those grounds.
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The child did not provide plaintiff and the court with the child's Spring report, which would have indicated academic performance and, to some extent, attendance. However, the child's re-registration in the Fall 2011 for three of the courses listed in his Spring 2011 schedule is compelling proof that he completed at most one course in the Spring term.
Although the child stated vaguely that his grades "had declined somewhat due to [his] health, and adjusting to the workload," there is insufficient credible evidence in the record to conclude that the failure to complete the Spring coursework was the result of a medical disability. The child apparently had a kidney stone removed in February. He visited an emergency room in August. That evidence does not demonstrate that the child was incapacitated for such a lengthy portion of a fifteen-week semester that he was unable to complete his work. It is also unclear whether his reference to adjusting to the workload reflected that he was not diligent about attending class, or doing his school work. The record is also barren about the child's other activities, for example, whether he had a part-time job, and how he spent his summers.
As the child was above the age of majority, it was defendant's burden to establish full-time student status, or a reasonable basis for failure to maintain that status. Particularly given defendant's lack of information, it was inappropriate for the court to grant all favorable inferences to defendant.
At stake is the support paid between June 2 and December 23, 2011. Plaintiff did not seek retroactive emancipation. We do not presume that a plenary hearing is necessary. After a period of discovery, the court may well determine, based on the evidential materials presented, that no genuine issue of material fact remains. If so, the court may apply the foregoing principles, and determine to grant or deny defendant's motion. If genuine issues of fact remain, then the court will be required to conduct a plenary hearing.
Given our disposition, we need not reach plaintiff's remaining points. However, we briefly comment on the court's denial of oral argument. Rule 5:5-4(a) provides that on motions in family actions, "the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions[.]" "We have interpreted this rule as mandating argument when significant substantive issues are raised and argument is requested." Mackowski v. Mackowski, 317 N.J. Super. 8, 14 (App. Div. 1998) (citing Filippone, supra, 304 N.J. Super. at 306), superseded on other grounds by R. 5:8-6. We have deemed such significant issues to include "a change of custody and the implications of such change on child support as well as other issues impacting the long-range relationship of the parties." Mackowski, supra, 317 N.J. Super. at 14. Denial of oral argument "deprives litigants of an opportunity to present their case fully to a court." Ibid.
We have also held that a judge may dispense with oral argument when it is clear that it will not contribute to the court's decision. See Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982) (court has option of dispensing with oral argument "when no evidence beyond the motion papers themselves and whatever else is already in the record is necessary to a decision. In short, it is the sole purpose of these rules to dispense with what is regarded as unnecessary or unproductive advocacy"). In an extreme case, a court may deny oral argument when it is used as a tool to unnecessarily burden the other party, or sought in connection with a patently meritless and frivolous application. Kozak v. Kozak, 280 N.J. Super. 272, 274 (Ch. Div. 1994), certif. denied, 151 N.J. 73 (1997).
Given the genuine issues raised by plaintiff's motion, we discern no reasoned basis to have denied plaintiff oral argument. Moreover, a trial court may find that bringing the parties together for oral argument may provide an opportunity to mediate and perhaps resolve the matter. We are sensitive to the need of a family judge to control the time demands of a heavy motion calendar. Yet, we are also mindful that parties in family cases may be more likely to accept an unfavorable outcome, and less likely to engage in repetitive motion practice, when given the opportunity for oral argument.
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