Opinion
DOCKET NO. A-1823-13T3
08-18-2015
KAREN L. DIMACALE, Plaintiff-Appellant, v. LUISITO DIMACALE, Defendant-Respondent.
Karen L. Dimacale, appellant pro se. Luisito Dimacale, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Hayden. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-63-10. Karen L. Dimacale, appellant pro se. Luisito Dimacale, respondent pro se. PER CURIAM
In this post-judgment matrimonial matter, plaintiff appeals from the Family Part's September 13, 2013, order denying her motion for various forms of relief pertaining to child custody and emancipation, and the court's November 1, 2013, order denying her motion for reconsideration. Having considered plaintiff's arguments in light of the record and applicable principles of law, we affirm.
I
We discern the following facts from the record. The parties received a divorce from bed and board on May 3, 2010, after over eighteen years of marriage. The parties were living separately at the time. The parties' two elder children, Michael, born July 1993, and Dana, born June 1995, were living with their father. The parties' two younger children, Melanie, born March 1997, and Sarah, born April 1999, were living with their mother. The parties' respective residences were three miles apart.
We note at the outset that plaintiff included a significant volume of documents that apparently were not presented to the court in connection with the motions at issue on appeal. Numerous documents post-date the orders on appeal, including a post-judgment motion filed in 2014. Plaintiff has included documents related to orders that preceded the orders on appeal, but, as we note below, they often provide an incomplete record of those prior applications and the related decisions. Plaintiff provides her correspondence with defendant's attorney, before defendant began to represent himself. Also in the appendix is a significant volume of documents from as early as 2009, leading up to late 2013. However, it is unclear whether or when these documents were presented to the court. Except as noted below, we shall only rely on documents that we find were presented to the trial court in advance of the orders on appeal. See U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 483 (2012); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
We utilize pseudonyms for the children to protect their privacy.
Under the parties' property settlement agreement (PSA) incorporated in the judgment, the parties were granted joint legal custody of the children, and primary residential custody of the children then residing with them. The parties mutually waived alimony and distributed various items of property between them. The PSA required the parties to inform each other of all medical, education, health and welfare issues concerning the children, and "work together cooperatively for the best interests of their children."
The PSA required the parties to engage in family counseling to resolve disputes concerning the children. "The parties and their children shall engage in family counseling to address any issues concerning the children and to resolve parenting time issues between them, and shall equally share the cost." The parties were free to seek relief from the court "[in] the event [they] are not able to work out parenting time or other issues concerning the children."
Post-judgment motion practice began within a year of entry of the judgment. Initially, the parties' disputes mainly pertained to property issues. However, custody and child support issues soon dominated repetitive motion practice, most notably leading to the transfer of custody of Melanie and Sarah to defendant at the end of the 2011-2012 school year, according to a May 2012 order. Plaintiff also repeatedly sought police intervention, claiming interference with child custody. None of these orders were the subject of an appeal. A review of the prior motion practice places in context the orders on appeal.
We need not address these property-related disputes. Suffice it to say that they also involved significant motion practice. In addition, the parties occasionally sought police intervention regarding the property disposition.
A June 2011 order, which primarily addressed enforcement of equitable distribution provisions of the PSA, granted plaintiff's application for an order compelling defendant to communicate with her regarding Michael and Dana. The order compelled defendant to "apprise [p]laintiff of any health issues relating to [Michael] and [Dana] . . . [and] any plans to take the children out-of-state for an extended period of time." The court's written decision did not include explicit findings that defendant had failed to communicate.
In the record on appeal, plaintiff included her motion papers — but she did not include therewith the documentary evidence referenced in defendant's certifications; and she omitted entirely defendant's responsive papers.
In October 2011, plaintiff sought various restrictions on defendant's parenting time with Melanie and Sarah. Plaintiff alleged that both Michael and Dana were involved in substance abuse, and Michael was arrested on a shoplifting charge and charges related to his alleged possession of marijuana. The parties consented to entry of an order in November 2011, maintaining the status quo regarding primary residential custody, and agreeing to enter family counseling and therapy with Dr. Joseph Mosley. The purpose was to promote communication between the parties about the children, "and for Dr. Mosley to make inquiry as to the children's desires regarding any change in future parenting time schedule." Pending Dr. Mosley's recommendations, the parties agreed to minor adjustments in the visitation schedule.
In January 2012, defendant alleged that plaintiff subjected Melanie to excessive corporal punishment, and subjected both Sarah and Melanie to various forms of emotional abuse. Defendant sought an order requiring plaintiff to undergo a mental health evaluation, participate in anger management; and a transfer of custody to him of the two girls. He also asked the court to interview the two girls. Plaintiff's response did not directly address many of defendant's allegations, but plaintiff asserted that the family was "in desperate need of intensive family counseling." She also complained that defendant failed to adequately communicate with her, but shared information about their disputes with the children.
In a February 3, 2012 order, the court reserved decision on whether to transfer custody of Melanie and Sarah, or to hold a plenary hearing, pending a court interview of the two children, and receipt of a report from the Division of Youth and Family Services, which apparently was involved in responding to the allegations of abuse. The court declined to compel plaintiff to submit to mental health treatment or participate in anger management.
Plaintiff did not include the court's oral statement of reasons in the record.
The court conducted interviews of Melanie and Sarah on February 16, 2012. Plaintiff did not include a transcript of the interview in the record.
In a February 29, 2012, order, the court determined that Dana was "capable of deciding her visitation schedule with the [p]laintiff" without the need of an evaluation by Dr. Mosley. As for the dispute regarding custody of the younger girls, the court initially determined that it would decide the motion on the papers, once it had received a report from Dr. Mosley. However, upon receiving the report, the court reconsidered, and decided to hold a plenary hearing, which occurred on May 22, 2012. The record does not include a transcript of the hearing, or Dr. Mosley's report.
After the hearing, the court entered an order transferring custody of Melanie and Sarah to defendant, effective upon the end of the school year. The court's oral statement of reasons is not provided to us. Plaintiff was to exercise parenting time every weekend from Friday to Sunday during the school year, and Friday to Monday during summer break. The order provided that if there was a "significant decrease" in either girl's grades in the fall 2012 semester, then either party could apply to modify the arrangement.
In a subsequent decision, the court quoted a finding in its oral decision that both girls expressed a preference to live with their father. The court referred to the girls' "educational accomplishments [and] the level of maturity they had." The court stated, "Both expressed reasons why they had the preferences they had. It was not a situation where either of these children said I want to live with dad because he lets me stay up and watch TV longer. They had particular reasons."
Two weeks before the May 22, 2012, hearing, plaintiff applied to the court to re-interview the two girls. Plaintiff claimed the children changed their minds about their preferences. The court declined to re-interview the children at the time of the hearing, and set forth its reasons (which are not provided to us), and entered a confirming order and decision on June 15, 2012, which incorporated its previous oral decision.
The June 15, 2012 decision also addressed another round of motion practice in which both parties sought various forms of relief. In a June 7, 2012, submission, plaintiff sought reversal of the court's May 22, 2012 custody transfer. She also sought Michael's emancipation, or production of proof he was a full-time student. The court reserved decision on child support and did not address defendant's cross-motion regarding emancipation and custody change.
Defendant filed a motion for child support on June 15, 2012, and plaintiff filed a cross-motion July 12, 2012, again seeking reversal of the custody transfer of the two girls, and emancipation of Michael. In advance of a hearing on child support, the parties agreed to entry of an order setting plaintiff's child support payment for all four children at $169 weekly, effective July 20, 2012. Arrears were to be paid at $31 weekly. The calculation was outside the guidelines, according to the court. Contrary to Rule 5:6A, Appendix IX-A, ¶ 3, the order does not include "the reason for the deviation and the amount of the guidelines-based award (before any adjustment)."
The record includes what appears to be an interim order, dated July 24, 2012, setting child support at $169, and setting a hearing on August 10, 2012, at which the parties were to produce their income documentation. A guidelines worksheet is also included in the record, which calculated the support as $169 a week, based on the parties each earning $1692 a week; and plaintiff exercising 114 nights of parenting time. However, it is undated and unsigned. Plaintiff asserts in her brief that it was prepared by defendant's attorney.
In an August 10, 2012, order, the court denied reconsideration. The court also denied the emancipation motion based on the court's finding that Michael was a full-time student at the local county college. However, the court also ordered that defendant provide plaintiff continuing proof of full-time enrollment, and supply Michael's waiver of his federal educational privacy rights.
In May 2013, plaintiff filed a motion seeking a finding that defendant was in contempt of court, because of his failure to communicate; disclosing aspects of their disputes with the children; and alleged interference with her custodial rights. For reasons set forth orally, which are not provided, the court ordered defendant to provide copies of Michael's and Dana's 2011 and 2012 tax returns; and proof of Michael's full-time status as a student. The court also ordered defendant to keep plaintiff informed of the children's schedules for school, extra-curricular activities, and non-emergency doctor visits.
On August 8, 2013, plaintiff filed the first of the two motions that are the subject of this appeal. She sought multiple forms of relief including: (1) a finding that defendant was in contempt of court and interfered with custody; (2) disclosure of the tax returns of Michael and Dana; (3) transfer of custody of the children to plaintiff; (4) child support based on both parties earning $88,000 annually; (5) emancipation of Dana and Michael as of their eighteenth birthdays and reimbursement of child support paid thereafter; and (6) "appropriate action" in response to defendant's alienation of the children. Plaintiff also sought reimbursement of various medical, extra-curricular, cell-phone, and clothing expenses she incurred for the children.
Plaintiff alleged that Melanie and Sarah, who were entering eleventh and ninth grade, were not performing as well as she believed they could. She alleged:
[Melanie] has struggled this year with some of her grades. Even though she is performing well, she is not performing to HER own ability and expectation, and her teachers concur.Plaintiff alleged that defendant did not communicate with the girls' teachers; instead, she did. She criticized defendant for suggesting that Sarah take regular classes in algebra and science, instead of the advanced classes in which she was struggling. She asserted that the girls were not performing to their capabilities. On the one hand, she alleged Sarah was "extremely disappointed" she did not make the honor society; on the other hand, plaintiff alleged the girls had become indifferent toward their education as a result of living with defendant.
[Melanie] is trying to stay in the top 10% of her class, or higher. [Melanie] discussed this with me many times last year, but has been very indifferent about it this year.
This year was the first year that [Sarah] has received a "D" on her report card.
Currently [Sarah's] attention span for the classroom and homework is down to 15 minutes. Before this year there was never an issue . . . .
[Sarah] will be taking a full load of Honor's classes in her freshman year. Living with [defendant], [Sarah] is not getting the support, structure, or incentives to be successful and perform to her advanced ability.
Last year [Sarah] had very high grades and was accepted into the Jr. National Honor Society. . . .
[Sarah] struggled this year with all of her classes, especially Advanced Algebra and Advanced Science.
Plaintiff also alleged that defendant failed to support her relationship with the children; and failed to communicate adequately with her. She criticized defendant's parenting style, stating he acted more like a friend than a parent.
In support of emancipation of Dana, plaintiff argued that defendant failed to adequately inform her of Dana's college plans; she received copies of college acceptance letters with "information 'blacked out'." She complained that she received short notice of a freshman orientation in June at the public university where Dana was admitted. Plaintiff asserted that Dana had refused to maintain a relationship with her since she began living with her father in 2009.
With respect to emancipating Michael, plaintiff asserted that his grades for his two years in county college — which she stated she received only in June 2013 — demonstrated a lack of success. She alleged Michael received numerous failing grades; his GPA fell below 2.0; he was placed on academic probation; and he earned fewer credits than a full-time student would earn.
In opposition, defendant asserted that no substantial change in circumstances warranted a review of the current custody arrangements. He insisted that he had "always kept the [p]laintiff informed of such things as the health and welfare, travel plans, and academic performance of the children." He asserted that plaintiff interrupted his vacations with the children. He stated that plaintiff exercised parenting time every weekend without interference. He claimed that he provided plaintiff the W-2s of Dana and Michael, but their earnings were too low to warrant filing returns, so they did not.
Regarding emancipation, he asserted in his certification that Michael was living at home and attending community college. Later, in oral argument, defendant stated his son intended to work full-time in the fall, and return to college in the future. Dana was living at home as well, defendant alleged, and would begin attending the university in the fall. Defendant stated that plaintiff's repetitive motion practice was harassing.
Defendant cross-moved for contribution to Dana's college expenses. Defendant sought an order compelling plaintiff to undergo psychiatric counseling.
After oral argument, at which the court received limited testimony from the parties, the court entered an order on September 13, 2013, denying plaintiff's requests for relief pertaining to custody, except to order Michael's emancipation as of September 1, 2013. The court denied defendant's cross-motion, stating that a motion by defendant for contribution to Dana's college expenses must be accompanied by his submission of a completed case information statement, including financial documentation. However, the court recognized that child support should be recalculated, both because of Michael's emancipation and Dana's residence at college.
The judge found that plaintiff had not presented evidence of a significant change in circumstances, warranting a change in custody. The judge characterized plaintiff's complaint as one concerning defendant's parenting style. The court reviewed educational records — which are not in the record before us — and concluded that Sarah and Melanie were still performing well, albeit not up to plaintiff's expectations. The judge gave weight to the preferences of the children expressed in their February 2012 interview. The court declined to emancipate Dana, because she was a full-time student.
Addressing plaintiff, the court noted that the problem between the parties was "a lack of communication between you and some issues that have resulted from the fact that you have children who are getting to an age . . . where they are exercising some independence." The court recognized the children preferred to live with defendant because allowing for their independence "seems to be part of his parenting style, but it might be that he goes a little far with it, and there is someplace in between that should . . . exist." The court suggested plaintiff "loosen up some in terms of your dealings with these children."
Plaintiff moved for reconsideration of the court's decision on custody, emancipation, and contempt. She also asked that a letter written by Dr. Mosely be removed from the file. Plaintiff renewed her previous arguments, and asserted that the children had changed their minds with regard to wanting to live with defendant; and they performed better academically when they lived with her. Plaintiff urged the court to apply the factors set forth in N.J.S.A. 9:2-4. Plaintiff again asserted that defendant failed to adequately communicate, citing her exclusion from Dana's college search, and the lack of information about Michael's school performance. Plaintiff confirmed she exercised parenting time as scheduled, but she asserted defendant was leaving it to the children to decide whether to participate in events she planned. As to the safety of the children, plaintiff argued Melanie had posted personal information on social network sites, and the youngest child was permitted to ride her bicycle around town without anyone knowing where she was.
Defendant responded that the social network information was taken down. He asserted that plaintiff exaggerated the children's academic decline.
In denying the motion, the court again found an insufficient change in circumstances to warrant altering the custodial arrangements, and the dispute was one of "parenting style." The judge explained to plaintiff he lacked the power to find a party guilty of criminal contempt or interference with custody.
Plaintiff raises the following points on appeal:
POINT I: I believe that the Trial Court Judge has a relationship with the Respondent.
POINT II: The court fails to enforce my rights and resolve long standing issues.
POINT III: The court fails to consider new incidents, facts, requests.
POINT IV: The court fails to accept the seriousness of the communication, parenting, and parental alienation issues that I present.
POINT V: I believe that the court is impatient when I try to present my case.
POINT VI: The court errs in its understanding of claims made by me.
POINT VII: The court presents opinion that is not based on the law or facts presented.
POINT [VIII]: The court failed to consider the law, but instead considered only the preference of [the] children.
POINT [IX]: The court[']s biased observations and comments don't belong in a court room and especially in a case where there are long-standing, documented, unresolved issues with parental alienation, drug use, education, parental communication, and parental cooperation.
POINT [X]: The court has failed to enforce its court order that is supposed to protect our children from the litigation details.
POINT [XI]: The lower court fails to understand the root issues that are unilateral and fails to enforce its court orders.
POINT [XII]: The court erred in its decision to retroactively emancipate
[Michael] because it would not enforce the law and accept the facts.
POINT [XIII]: The court erred in its decision to retroactively emancipate [Dana] because it would not enforce the law and accept the facts.
POINT [XIV]: The court erred in its decision to remove a letter from the file because it did not give me an adequate opportunity to present my case.
Plaintiff omitted a point VIII. We consecutively number her remaining points.
II.
A.
We exercise limited review of the trial court's decision. We will not disturb a trial court's fact-finding if supported by "adequate, substantial, credible evidence"; deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility" because the trial judge who has observed and heard the witnesses can better assess veracity; and we accord deference to the family court based on its "special jurisdiction and expertise." Cesare v. Cesare, 154 N.J. 394, 411-13 (1998) (internal quotation marks and citation omitted).
We also accord similar deference to a trial court's determination that a party has failed to establish a change in circumstances warranting modification of child custody arrangements; we review such determinations for an abuse of discretion. Costa v. Costa, 440 N.J. Super. 1, 4 (App. Div. 2015). See also Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 157 (App. Div.) (discussing deference accorded to trial court's finding there were no changed circumstances that would support the request to modify custody), certif. denied, 178 N.J. 34 (2003).
We exercise broader review when considering "the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom." In re J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (internal quotation marks and citation omitted). "[W]e are compelled to reverse" "if the court ignores applicable standards[.]" Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008). Finally, 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).
B.
We consider first plaintiff's challenge to the court's decision denying her request to modify custody. We recently summarized the governing standard:
Modification of an existing child custody order is a two-step process. First, a party must show a change of circumstances warranting modification of the custodial arrangements. If the party makes that showing, the party is entitled to a plenary
hearing as to disputed material facts regarding the child's best interests, and whether those best interests are served by modification of the existing custody order.
[Costa, supra, 440 N.J. Super. at 4 (internal quotation marks and citations omitted).]
In assessing whether there are requisite changed circumstances, the court must consider the circumstances that existed when the original custody order was entered. Sheehan v. Sheehan, 51 N.J. Super. 276, 287-88 (App. Div. 1958). With those facts in hand, the court can then "ascertain what motivated the original judgment and determine whether there has been any change in circumstances," and evaluate "the bona fides of the person who seeks a modification upon the grounds of change in his status of fitness." Id. at 288. Also, "[i]n assessing a claim of changed circumstances deference is given to the length and stability of the existing custody relationship." M.P. v. S.P., 169 N.J. Super. 425, 431 (App. Div. 1979). The focus of every judicial determination about custody and parenting time is "on the 'safety, happiness, physical, mental and moral welfare' of the children." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (citation omitted).
Applying these principles, we conclude that plaintiff has provided an insufficient basis to disturb the trial court's determination. First, plaintiff has not provided us with a complete record of the court's May 2012 decision to transfer custody of Melanie and Sarah. We lack a transcript of the child interviews, a transcript of the plenary hearing, Dr. Mosley's report, and the trial judge's decision. We are thus unable to ascertain "what motivated the original judgment." Sheehan, supra, 51 N.J. Super. at 288. The limited record also hampers our ability to assess plaintiff's factual allegations regarding the changed circumstances. For example, although plaintiff asserts that the girls' academic performance suffered, the record does not include any academic reports or teacher assessments.
In any event, we find no error in the trial judge's determination that plaintiff's allegations fall short of demonstrating a significant change in circumstances. Plaintiff has high expectations for Melanie and Sarah. Although they apparently struggled in some advanced classes, even plaintiff admitted they were still successful students. She remains an active presence in their lives, and is involved in their education. She exercises parenting time every weekend. Conceivably, they might enjoy greater academic success if their mother had residential custody during the school nights, instead of weekends. However, plaintiff's strengths in this area were likely present before the May 2012 order. Finally, although the judge recognized that either party could seek a modification of custody upon a significant decrease in grades, we cannot conclude based on the record, such as it is, that the trial judge erred in concluding that no significant decrease occurred. The academic information presented on appeal does not compel a finding of a significant change of circumstances.
Nor are we persuaded by plaintiff's allegations that defendant's parenting endangered the safety of the children. Plaintiff relies on instances of Dana's substance abuse, and school attendance issues that preceded the court's May 2012 order. These do not constitute a post-order change in circumstances. Plaintiff alleges defendant is responsible for alienating the children. However, the two younger children willingly continue to spend time with their mother. As for the strained relationship with Michael and Dana, that preceded the May 2012 order. Indeed, as plaintiff asserts, the estranged relationship even preceded the divorce.
In sum, we shall not disturb the trial court's order denying plaintiff's motion to modify custody, and denying her motion for reconsideration.
C.
Plaintiff also challenges the court's orders denying emancipation of Dana as of her eighteenth birthday in June 2013, and of Michael as of his eighteenth birthday in July 2011, instead of September 1, 2013; and denying her request for retroactive reduction of child support.
Principles governing emancipation are well-settled. 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.'" Ibid. (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 (stating "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) (stating that a child past the age of majority who is a full-time student, diligent in her studies, getting good grades, and still dependent on her parents, is not emancipated and is entitled to the support of her parents 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 "brief hiatus" between high school and college, which is becoming more common, should not foreclose parental support, but it was "inappropriate to require plaintiff to contribute to [the child's] college education" where child took four year hiatus, remained continuously employed, and had expressed no interest in a 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 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 [the child'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. 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).
Applying these principles, we find insufficient basis to emancipate Dana. Despite her substance abuse and attendance issues during high school, she succeeded in securing admission to a competitive public university in New Jersey. Her estrangement from her mother, and her failure to include her in the college selection process, may well be a factor in determining the level of plaintiff's obligation, if any, to contribute to her college expenses. See Gac v. Gac, 186 N.J. 535, 546 (2006); Gotlib, supra, 399 N.J. Super. at 310 (holding that participation by both parents in the decision-making process is an "essential factor" under Gac); Moss v. Nedas, 289 N.J. Super. 352, 360 (App. Div. 1996) (finding no abuse of discretion when trial judge relieved plaintiff of obligation to share college expenses where there was no "meaningful relationship" between the plaintiff and the child).
The absence of a relationship does not, on its own, relieve plaintiff of the obligation of support. "Not even the absence of a meaningful relationship relieves the legally obliged parent from providing support for a child's basic needs." L.V. v. R.S., 347 N.J. Super. 33, 41 (App. Div. 2002). That said, Dana's non-emancipated status is contingent upon her continued enrollment and diligent pursuit of a college education.
As the trial court correctly observed, child support must nonetheless be recalculated for a number of reasons. Michael is emancipated. And, Dana is over the age of eighteen and living outside the parental home during the school year. Thus, application of the child support guidelines is inappropriate to calculate support for her. Instead, the court must apply the factors set forth in N.J.S.A. 2A:34-23(a).
The factors are: (1) the needs of the child; (2) the standard of living and economic circumstances of each parent; (3) all sources of income and assets of each parent; (4) earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment; (5) need and capacity of the child for education, including higher education; (6) age and health of the child and each parent; (7) income, assets and earning ability of the child; (8) responsibility of the parents for the court-ordered support of others; (9) reasonable debts and liabilities of each child and parent; and (10) any other factors the court may deem relevant. N.J.S.A. 2A:34-23(a). --------
As for the emancipation of Michael, plaintiff challenges only the effective date. She seeks emancipation as of July 2011, and retroactive reduction of support. The court previously denied emancipation in August 2012. Plaintiff did not appeal. Consequently, the order is res judicata as it related to emancipation as of that date.
Plaintiff argues that Michael's poor academic performance warrants a retroactive reduction in support. We agree, based on the authority cited above, that his poor performance and his failure to communicate may warrant a finding of emancipation. However, given our deferential standard of review, we do not conclude that the court mistakenly exercised its discretion in declaring Michael emancipated as of September 1, 2013. We note that the court rejected defendant's argument that Michael intended to return to college after a one-semester hiatus. The court considered the fact that Michael continued to live in defendant's home, and remained within his sphere of influence while attempting, although with limited success, to earn college credits.
Plaintiff's remaining arguments lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only that plaintiff has presented evidence to this court that plaintiff contends indicates that defendant communicated with the judge ex parte and may have had a personal relationship with him. We do not intend to minimize the significance of ex parte communications on the integrity of the judicial process. However, any application for relief based on a claim of ex parte communications should be presented to the trial court in the first instance.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION