Opinion
DOCKET NO. A-3434-13T2
06-30-2015
HARRY J. SCHUTE, JR., Plaintiff-Respondent, v. PATRICIA A. SCHUTE, n/k/a PATRICIA A. KRAFT, Defendant-Appellant.
Theresa C. Grabowski argued the cause for appellant. Ted M. Rosenberg argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Rothstadt. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-0994-05. Theresa C. Grabowski argued the cause for appellant. Ted M. Rosenberg argued the cause for respondent. PER CURIAM
Defendant Patricia A. Schute (n/k/a Kraft) appeals from portions of the Family Part's December 20, 2013 and February 21, 2014 post-judgment matrimonial orders, which granted plaintiff Harry J. Schute's motion to emancipate the parties' son and daughter without benefit of a plenary hearing; terminate his obligation to pay child support with a concomitant repayment of child support by defendant; denied defendant's cross-motion to assign the matter to another judge; not addressing her motion seeking an increase in child support; and the judge's refusing to recuse herself. We affirm.
The parties were married and have two children. After resolving collateral issues, a final judgment of divorce (FJOD) incorporating a stipulation of settlement was filed on January 23, 2006, effective nunc pro tunc to November 2, 2005. Defendant was awarded limited duration alimony, as well as certain assets. The FJOD did not address the issue of emancipation of the children. As to the children's college expenses, the FJOD provided "both parties have an obligation to provide for the college education of their children, taking into consideration at the time each child attains the appropriate age, the respective income and assets of the parties." Thereafter, certain post-judgment applications were filed.
In the motion under review, filed on October 31, 2013, plaintiff sought the emancipation of the parties' daughter and son, consequential termination of child support, reimbursement of child support paid beyond the respective emancipation dates, and payment by defendant of his counsel fees. In his supporting certification, he stated his daughter was twenty-three years old and had graduated from college on May 17, 2013. He requested that the court declare her emancipated on her graduation date. He also contended his son was eighteen years old, had graduated from high school on June 20, 2013, was not attending college and had discontinued his education. He stated that his son "passed his state fire fighter exam" and was currently working "while awaiting an opportunity to take the State Civil Service Exam."
In opposition, defendant asserted her daughter should not be considered emancipated. She stated her daughter had not found employment "and had to abandon her dreams of furthering her education because of plaintiff's conduct." Defendant stated her daughter relocated and was living in her "fiancee's parents['] home in North Jersey, so that she can be near the district where she gets substitute teaching jobs most often." Defendant contended consideration of her daughter's emancipation "should be made pending completion of discovery and review of the issue of plaintiff's obligation for her educational expenses going forward." As to the emancipation of her son, defendant represented her son "did attend college, but has learning disabilities." She acknowledged he withdrew but "with the intention to re-enroll later, and has taken fire fighter/EMT classes in the interim." Further, defendant stated her son lived at home with her and only works a few days a week.
In her brief, defendant asserts her son has learning disabilities but does not support that statement by reference to an appendix or transcript. See R. 2:6-2.
Defendant filed a cross-motion to restore the matter to the previous motion judge (previous judge) responsible therefor, who was transferred to the Civil Division in April 2013. Defendant contended the complexity of the matter and the time spent by the previous judge required the reassignment, arguing the previous judge "ha[d] been precluded from fully making a final determination resulting from Her Honor's prior interim Orders." She also sought attorney's fees, discovery concerning plaintiff's income, a recalculation of child support, and an order "compelling [p]laintiff to turn over the college fund(s) of the parties' children."
In a comprehensive ten-page written order, the motion judge set forth her findings of fact and conclusions of law. The court analyzed various factors relating to emancipation to determine whether the children had moved beyond the sphere of influence and responsibility exercised by a parent and obtained an independent status. The court found it undisputed that the daughter was twenty-three years old, graduated from college on May 17, 2013, was employed on a part-time basis, was engaged to be married and was residing with her fiancé away from defendant's home. The court found that the daughter moved beyond the sphere of influence of her parents and was emancipated. The court set an effective date for emancipation as of August 1, 2013. The court consequently terminated child support on that date.
As to the parties' son, the court found that it was undisputed that he was eighteen years old, graduated from high school, occasionally took courses to be a firefighter/EMT, was employed on a part-time basis and was not a full-time student pursuing post-secondary education. As a result, the court emancipated the son effective August 1, 2013, and terminated child support as of that date.
The court granted plaintiff's motion to require defendant to reimburse him for payments made following the children's emancipation. The court ordered defendant to "surrender control of the [Section] 529 [college] account so that said funds may be accessed and utilized by the parties' son to the extent that he engages in any continuing or adult educational courses." The court also terminated plaintiff's obligation to provide medical and life insurance coverage for the parties' children. However, the court denied plaintiff's motion for counsel fees and costs.
As to defendant's cross-motion, the court denied her requests to restore the matter to the list of the previous judge; enforce litigants' rights and compel plaintiff to comply with discovery as moot since both children are deemed emancipated; and enforce prior orders of the court and recalculate plaintiff's child support obligation. The court granted defendant's request to compel plaintiff to turn over the college funds of the parties' children, but denied her cross-motion for counsel fees and costs. Lastly, the court determined that the entry of the order was "without prejudice to any claim by either party for child support that may have accrued prior to the emancipation of the children."
On January 9, 2014, defendant filed a motion seeking recusal of the motion judge and an order vacating or staying, pending appeal, the court's December 20, 2013 order. In so moving, defendant once again sought compliance with a previous discovery order, which the court had denied in December. In effect, defendant was seeking reconsideration of the court's December 20 order. Plaintiff filed a cross-motion seeking counsel fees.
In a thorough written opinion filed February 21, 2014, the court explained its reason for denying defendant's requests for recusal, reconsideration of the December 20 order, discovery, and a stay pending appeal. The court did, however, modify defendant's reimbursement obligation to plaintiff for child support payments made after the emancipation date.
Defendant appeals the December 20, 2013 and February 21, 2014 orders. She contends, in a single point heading in contravention of Rule 2:6-2(a)(5), the judge erred in: refusing to return the matter to the previous judge; calculating a retroactive repayment obligation without addressing her motion seeking an increase in child support; and refusing to recuse herself. In a second point heading, defendant argues the court erred by emancipating the children without a plenary hearing and without returning the matter to the previous judge.
Clear standards guide our limited review. "We '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 . . . .'" Llewelyn v. Shewchuk, 440 N.J. Super. 207, 213 (App. Div. 2015) (alteration in original) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)); accord N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). "Also, '[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'" Llewelyn, supra, 440 N.J. Super. at 213 (alteration in original) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "Accordingly, when a reviewing court concludes there is satisfactory evidentiary support for the trial court's findings, 'its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal.'" Id. at 213-214 (quoting Beck v. Beck, 86 N.J. 480, 496 (1981)).
However, we confer no deference upon a trial court's interpretation of the law, which is subject to plenary review. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We may also exercise more extensive review of trial court findings that do not involve a testimonial hearing or the opportunity to assess 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"). Nevertheless, "[r]eversal is reserved only for those circumstances when we determine the factual findings and legal conclusions of the trial judge 'went so wide of the mark that a mistake must have been made.'" Llewelyn, supra, 440 N.J. Super. at 214 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).
The application of emancipation is a legal concept, imposed when "the fundamental dependent relationship between parent and child" ends. See Dolce v. Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006). "It is not automatic and 'need not occur at any particular age.'" Llewelyn, supra, 440 N.J. Super. at 216 (quoting Newburgh v. Arrigo, 88 N.J. 529, 543 (1982)). "When the circumstances surrounding the parent-child relationship support a finding the child is emancipated, 'the parent relinquishes the right to custody and is relieved of the burden of support, and the child is no longer entitled to support.'" Ibid. (quoting Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997)).
However, the law "provides that once a child reaches the age of majority, now eighteen, N.J.S.A. 9:17B-3, a parent has established 'prima facie, but not conclusive, proof of emancipation.'" Ibid. (quoting Newburgh, supra, 88 N.J. at 543). Once established, "the burden of proof to rebut the statutory presumption of emancipation shifts to the party seeking to continue the support obligation." Ibid. The presumption "may be overcome by evidence that a dependent relationship with the parents continues because of the needs of the child." Ibid.
The issue of whether a child is emancipated demands a fact-sensitive analysis. Newburgh, supra, 88 N.J. at 543. "'[T]he 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.'" Llewelyn, supra, 440 N.J. Super. at 216 (alteration in original) (quoting Filippone, supra, 304 N.J. Super. at 308). The "emancipation 'determination involves a critical evaluation of the prevailing circumstances including the child's need, interests, and independent resources, the family's reasonable expectations, and the parties' financial ability, among other things.'" Ibid. (quoting Dolce, supra, 383 N.J. Super. at 18).
The critical nature of emancipation determinations typically requires a plenary hearing, especially "when the submissions show there is a genuine and substantial factual dispute" that the trial court must resolve. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007); see also Conforti v. Guliadis, 128 N.J. 318, 322 (1992) (holding plenary hearings are required when there are "contested issues of material fact on the basis of conflicting affidavits"); Tretola v. Tretola, 389 N.J. Super. 15, 20 (App. Div. 2006) (reversing ruling on emancipation because the court "failed to recognize there were material facts in dispute and evidence beyond the motion papers necessary for resolution of the matter" requiring a plenary hearing). Nevertheless, "'[a]s is particularly the case in matters that arise in the Family Part, a plenary hearing is only required if there is a genuine, material and legitimate factual dispute.'" Llewelyn, supra, 440 N.J. Super. at 217 (quoting Segal v. Lynch, 211 N.J. 230, 264-65 (2012)).
"Following our review, we conclude defendant's opposition to plaintiff's motion did not trigger the obligation for a plenary hearing because the certifications filed did not present a material factual dispute." Ibid. (citation omitted). "'All of the relevant material was supplied to the motion judge [] at the time of the original application . . . .'" Ibid. (alteration in original) (quoting Fineberg v. Fineberg, 309 N.J. Super. 205, 218 (App. Div. 1998)). "[A] plenary hearing would adduce no further facts or information." Ibid. (citation and internal quotation marks omitted).
It was undisputed the daughter voluntarily moved out of her mother's home to live with her fiancé, graduated from college, was working as a substitute teacher part-time and was twenty-three years old. The parties' son was eighteen years old, a high school graduate, occasionally taking firefighter/EMT courses, was employed on a part-time basis and was not a full-time student pursuing post-secondary education. Since the children were adults, the statutory presumption was established, and the burden of proof to rebut the presumption of emancipation shifted to defendant. See Filippone, supra, 304 N.J. Super. at 308. Defendant offered no evidence to overcome the presumption that each child, having attained the age of majority, was emancipated. We therefore conclude the court did not err in ordering the emancipation of the children without a plenary hearing.
We note the court ordered the college funds held by the parties be turned over to the children.
Defendant next contends that the motion judge erred by not recusing herself. Defendant did not brief this issue, merely stating the issue of recusal was addressed in her certification. Because defendant has not briefed any arguments pertaining to the recusal issue, we are without a specific claim of error supported by record references and relevant law, and cannot consider the issue on appeal. See Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 45 (App. Div. 2003) (holding that the court will not consider an issue that is based on mere conclusory statements); State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977) (holding that parties have a duty to justify their positions by specific reference to legal authority). Consequently, we determine that any issues related to the recusal issue are deemed waived and abandoned. See Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2015); see also Gormley v. Wood-El, 422 N.J. Super. 426, 437 n.3, (App. Div. 2011), aff'd in part, rev'd in part and remanded, 218 N.J. 72 (2014).
Finally, defendant argues the motion judge erred by not transferring the motion and cross-motion to the previous judge. Defendant urges our decision in Salch v. Salch, 240 N.J. Super. 441 (App. Div. 1990), should guide our consideration. In Salch, we stated "all matrimonial counsel fee motions should be directed to the judge who has had responsibility for the case regardless of his or her present assignment." Id. at 444. "The reason for this is that the outcome of the motion will depend in great measure on what the judge has seen and heard, 'the feel of the case.'" Ibid. We have also held that mandating reassignment of future proceedings to another judge where the first judge is already familiar with the matter, "would be inimical to the efficient and fair administration of justice." Donnelly v. Donnelly, 405 N.J. Super. 117, 126 (App. Div. 2009) (holding that a judge is entitled to rely on previous factual findings from previous motions when deciding a subsequent motion in the same case, barring a legitimate reason to the contrary). However, even with regard to counsel fees, where a judge's exposure to a case is minimal, there is no compelling reason (other than considerations of judicial economy) for that judge to resolve the later fee issue after reassignment.
Here, the motion by plaintiff essentially was grounded in his request for emancipation of the children. This issue had not been submitted to or addressed by the previous judge. Further, the motion was post-judgment. Because the previous judge, who was no longer assigned to the Family Part, had no involvement in the emancipation of the children, it was not an abuse of discretion for the motion judge to not reassign the case to the previous judge.
We note the previous judge was not the judge who granted the divorce. --------
We find defendant's remaining contentions to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION