Opinion
DOCKET NO. A-1605-11T4
03-07-2013
ADELIA KSIEZOPOLSKI, f/k/a ADELIA VAZ, Plaintiff-Respondent, v. JOSE C. VAZ, Defendant-Appellant.
William Enrique Agrait, attorney for appellant. Nee, Beacham & Gantner, attorneys for respondent (Robert J. Beacham, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ostrer and Kennedy.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-6013-85.
William Enrique Agrait, attorney for appellant.
Nee, Beacham & Gantner, attorneys for respondent (Robert J. Beacham, of counsel and on the brief). PER CURIAM
Defendant appeals from a Family Part order entered on October 21, 2011, declaring that his daughter "is deemed emancipated as of May 30, 2011[;]" that his child support obligation shall cease on that date; and that his child support arrearages shall be adjusted accordingly. Defendant argues that the motion judge "abused his discretion" in failing to deem the daughter emancipated as of December 2000, "when she stopped attending school full time" and in awarding plaintiff arrearages because she had "fraudulently misrepresented" the daughter's "status and place of abode."
Although the order sets the emancipation date as May 30, 2011, the motion judge at the time of the hearing stated, "I do find [the daughter] should be emancipated as of March 30, 2011."
I.
Defendant and plaintiff were married and had one child, a daughter, who was born in 1982. A judgment of divorce was entered on January 4, 1985. The judgment provided that plaintiff was to have custody of the child and that defendant was to pay child support of $75 per week.
Defendant at some point fell behind in making his child support payments and orders were entered for the arrearages. In 2004, defendant filed a motion to declare his daughter emancipated, presumably as of the date of her eighteenth birthday. On December 17, 2004, the Family Part denied the motion, but required plaintiff to forward to defendant a copy of the daughter's tuition bills and transcripts within ten days of receipt, until she "graduates from college." The motion judge explained that defendant's motion was based upon "his belief that she was no longer in school" and that plaintiff had responded with a certification that the daughter "is a student" at a local community college. The judge concluded that because the daughter "is continuing as a student in colle[ge], it is appropriate at this time to deny emancipation . . . ." The judge also required plaintiff to supply the tuition bills and transcripts to defendant so he could ascertain when she has "concluded college and, therefore, appropriately should be emancipated."
We have not been provided with copies of the motion or plaintiff's response thereto.
Defendant did not appeal from the Family Part order of December 17, 2004, and did not seek to set it aside under Rule 4:50-1.
On July 15, 2011, defendant again moved for a declaration that his daughter be deemed emancipated as of the date of her eighteenth birthday and claimed that she only attended school part-time, was employed full-time at a pharmaceutical company, and had been living "outside her mother's home . . . ." Defendant calculated that, granting plaintiff credit for arrearages in child support payments, he had overpaid $32,097.15 for child support. He added that plaintiff never gave him copies of the tuition bills and transcripts, and argued that plaintiff's collection of child support payments after his daughter's eighteenth birthday was "fraudulent."
Plaintiff opposed the motion and submitted a certification stating that the daughter attended college through March 2011 when she obtained her degree. She stated that the daughter "did not attend every semester because we could not afford the tuition" and that defendant never once asked for a copy of a tuition bill or transcript. She added that defendant never paid for the daughter's medical insurance and never contributed toward her college costs "which [our daughter] and I shouldered alone[,]" despite his knowledge that the daughter "was continuing to pursue her college degree." Transcripts of her college attendance were provided, as well.
Plaintiff did not file a cross-motion seeking to compel defendant to contribute to the daughter's college expenses. See N.J.S.A. 2A:34-23(a)(5); Newburgh v. Arrigo, 88 N.J. 529 (1982).
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The motion judge heard oral argument on the return date of the motion, and determined that defendant "slept on his rights" by not moving earlier for the relief sought. He also determined that the daughter should be deemed emancipated as of the date of her college graduation in March 2011, but was "not satisfied based on the information before me that she should be emancipated prior to that date[.]" This appeal followed.
II.
A.
We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). Similar deference is accorded to the factual findings of those judges following an evidentiary hearing. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). 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 determinations or resolve genuine factual issues based on conflicting affidavits. Conforti v. Guliadis, 128 N.J. 318, 322 (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). 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). Having set forth our standard of review, we next set forth the principles that guide our analysis of the issue of emancipation. We shall thereafter address issue preclusion, based upon the order of December 17, 2004, and application of the principle of laches.
B.
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). A court must determine "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, supra, 88 N.J. at 543 (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 a 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 a "brief hiatus" between high school and college). An 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 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 student may be a basis for emancipation.
In Filippone, supra, Judge Pressler summarized the controlling principles relating to emancipation:
Emancipation of a child is reached when the fundamental dependent relationship between parent and child is concluded, the parent relinquishes the right to custody and is relieved of the burden of support, and the child is no longer entitled to support. 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 theFurther, the court's 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." Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006) (citing Newburgh, supra, 88 N.J. at 545). Emancipation is "the conclusion of the fundamental dependent relationship between parent and child . . . ." Id. at 17; Monmouth County Div. of Social Servs. v. C.R., 316 N.J. Super. 600, 616 (Ch. Div. 1998) (recognizing the well-established "educational exception" to emancipation).
sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own." Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995).
[304 N.J. Super. at 308.]
As we have noted, "[a]lthough there is no fixed age when emancipation occurs, N.J.S.A. 9:17B-3 provides that when a person reaches eighteen years of age, he or she shall be deemed to be an adult." Gac v. Gac, 186 N.J. 535, 542 (2006). Thus, proof of majority satisfies a non-custodial parent's prima facie showing, shifting the burden to rebut the statutory presumption of emancipation to the custodial parent. See Filippone, supra, 304 N.J. Super. at 308 (stating statutory presumption is rebuttable). To prevail on a request for dependent support, the custodial parent must prove the child remains a student. Limpert, supra, 119 N.J. Super. at 442-43.
Because the question of emancipation is fact-sensitive, courts must be cautious about rendering an emancipation ruling without an evidentiary hearing where, as here, there are disputed facts that bear upon the question. Where facts are disputed or depend on credibility evaluations, a plenary hearing is required. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007); Conforti, supra, 128 N.J. at 322 (holding that plenary hearings are required when there are "contested issues of material fact on the basis of conflicting affidavits" (internal quotations omitted)); see also Tretola v. Tretola, 389 N.J. Super. 15, 20 (App. Div. 2006) (reversing motion on emancipation and requiring a plenary hearing because the court failed to recognize material facts in dispute and evidence beyond the motion papers necessary for resolution of the matter); Scott v. Salerno, 297 N.J. Super. 437, 452 (App. Div.), certif. denied, 149 N.J. 409 (1997); Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.), certif. denied, 142 N.J. 455 (1995); Dunne v. Dunne, 209 N.J. Super. 559, 571-72 (App. Div. 1986).
Here, the motion court did not conduct an evidentiary hearing and decided the emancipation issue solely on the parties' certifications. Further, the court appears to have decided the motion by concluding that defendant had "slept on his rights" and resolved none of the factual issues raised by the parties in their opposing certifications. In doing so, the motion court erred.
We reverse the order of October 21, 2011, and remand for an evidentiary hearing on the issue of the date of the daughter's emancipation, subject to the limitations we address hereinafter.
C.
Defendant did not appeal from the order of December 17, 2004, denying his prior motion to have the daughter declared emancipated as of her eighteenth birthday, and he never sought to vacate that order by timely application under Rule 4:50-1. Accordingly, defendant is barred by the doctrine of claim preclusion from seeking a declaration of emancipation for a date earlier than December 17, 2004. See generally, First Union Nat'l Bank v. Penn Salem Marina, Inc., 190 N.J. 342 (2007).
"[T]he doctrine of res judicata provides that a cause of action between parties that has been finally determined on the merits by a tribunal having jurisdiction cannot be relitigated by those parties or their privies in a new proceeding." Velasquez v. Franz, 123 N.J. 498, 505 (1991) (citing Roberts v. Goldner, 79 N.J. 82, 85 (1979)). An issue is actually litigated when it is properly raised by pleadings or otherwise, is submitted for determination, and a decision is rendered. Id. at 506 (citing Restatement (Second) of Judgments § 27 comment d (1982)).
The principles underlying issue preclusion are fully applicable in the case before us. Defendant moved in 2004 for a declaration that his daughter was emancipated. Issue was joined and the court made findings and issued an order on December 17, 2004, that the daughter was not emancipated as of that date. Defendant chose neither to appeal from that order, nor to vacate it by a timely motion under Rule 4:50-1. Hence, the order is binding upon the parties and may not be avoided by a further motion for emancipation brought over six years later.
D.
Finally, we turn to the issue of laches that was raised by plaintiff and relied upon by the motion court in making its ruling. Like the motion court, we, too, are concerned about the inordinate passage of time between the order of December 2004 and defendant's present application, and the prejudice plaintiff has likely suffered. Defendant's explanation that he did not receive tuition bills and transcripts for over six years is hardly persuasive since, even crediting his contention as true, he would have known for each of these years that he had not received that information.
The doctrine of laches is often described as allowing the courtroom doors to close on a claimant who has delayed "for a length of time which, unexplained and unexcused, is unreasonable under the circumstances and has been prejudicial to the other party." Northwest Covenant Med. Ctr. v. Fishman, 167 N.J. 123, 140 (2001) (quoting West Jersey Title & Guar. Co. v. Indus. Trust Co., 27 N.J. 144, 153 (1958)). In other words, "[l]aches is an equitable doctrine which penalizes knowing inaction by a party with a legal right from enforcing that right after passage of such a period of time that prejudice has resulted to the other [party] . . . ." L.V. v. R.S., 347 N.J. Super. 33, 39 (App. Div. 2002) (quoting Matter of Adoption of a Child of Indian Heritage, 111 N.J. 155, 182 n.8 (1988)).
Laches is applied on a case by case basis depending on the various circumstances involved. See Donnelly v. Ritzendollar, 14 N.J. 96, 107-08 (1953). Usually, however, where laches is asserted by a party as an issue in the proceeding, a "full factual hearing on both sides is usually required." Dorchester Manor v. Borough of New Milford, 2 87 N.J. Super. 163, 173 (Law Div. 1994), aff'd, 287 N.J. Super. 163, 172 (App. Div. 1996); see also Urban League v. Mayor of Carteret, 115 N.J. 536, 554 (1989).
Here, the motion court concluded that defendant's delay of over six years before bringing his application for emancipation of the daughter, equated to having "slept on his rights." The court drew this conclusion on the basis of the motion papers alone. The parties' certifications created a factual dispute regarding when defendant first learned of the circumstances which allegedly prompted his motion. Resolution of that dispute "hinge[s] on factual determinations, credibility and diverse contentions, [therefore] a plenary hearing is required." Dunne, supra, 209 N.J. Super. at 571 (citations omitted). Accordingly, we conclude that the motion court erred in not holding an evidentiary hearing on this issue.
E.
We leave to the judge's discretion the amount, if any, of discovery required prior to the remand hearing. At the very least, documents pertaining to tuition, attendance and source of funding should be supplied. In addition, defendant should be compelled to explain the circumstances of his decision to wait over six years before pursuing his motion, and what he knew about his daughter's efforts to secure an education during that period. Inasmuch as neither of the parties appears to have significant assets, the remand proceedings should be tailored to provide the additional information required and an opportunity to explore and consider the issues related to emancipation and laches, but need not be expanded to a full-blown trial.
Reversed and remanded for further proceedings consistent with this opinion. 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