Krafte, J.J.D.R.C. (temporarily assigned).
[178 NJSuper Page 625] Defendant makes this application by way of motion, seeking contribution from plaintiff toward the college education of the children. The issue this court is called upon to determine is to what extent, if at all, can a child, formally emancipated by court
order, call upon his/her parents to contribute to the child's support. There is no reported New Jersey decision which deals precisely with the question presented to this court herein.
Plaintiff husband and defendant wife were divorced in 1969. The final judgment was signed on July 17, 1969, which provided in part that plaintiff shall pay to defendant a total of $50 a week for the support and maintenance of the two infant children of the marriage, Carl and John.
It is important to note that at the time of this application John was 21 years of age and Carl 18. Based upon the affidavits and financial statements submitted, this court entered an order on July 24, 1980 requiring plaintiff to contribute approximately $4,500 to Carl's college education (which plaintiff stated he had set aside for such purpose) plus one-quarter of Carl's annual tuition. A determination as to John was reserved pending the receipt of further information relevant to John's employment and residence since he graduated high school, a statement of his assets and the cost of his tuition. This court also noted that support payments for John ceased in 1977 and requested any available documentation indicating the basis thereof.
Among the supplemental documents received was an order of July 18, 1977 which declared John to be emancipated and extinguished plaintiff's obligation to support him. The information submitted established that John has continuously been employed and has maintained his own residence since his emancipation. He only occasionally stayed at his mother's residence to visit her on weekends. He is at present 22 years of age and earns approximately $200 a week. Upon his graduation from high school John did not wish to attend college and, after conveying his intentions to plaintiff, plaintiff gave him some $3,200 to enable him to start his own business.
This court first notes that defendant has brought this application for contribution on behalf of her son. We question her right to do so, given John's age of 22. However, since the entire controversy has been fully presented, this court will take jurisdiction and rule.
It is now elementary that a duty is imposed by statute upon a parent to support a child. In addition to N.J.S.A. 2A:34-23, N.J.S.A. 9:2-4 provides in pertinent part that the parents are "equally charged with their care, nurture, education and welfare. . . ." This duty has been stated in case law as well. Cohen v. Cohen , 6 N.J. Super. 26 (App.Div.1949); Grotsky v. Grotsky , 58 N.J. 354 (1971); Clayton v. Muth , 144 N.J. Super. 491 (Ch.Div.1976).
Blackstone described the duty of a parent to support their minor children as "a principle of natural law." 1 Blackstone, Commentaries , 447. Such duty is based on both a natural and legal incapacity, and the child's consequent need of protection and care. Kern v. Kern , 360 So. 2d 482, 484 (Fla.App.1978).
As a general rule, a parent is under no duty to contribute to the support of his child after the child has become emancipated Schluter v. Schluter , 17 N.J. Super. 496 (Ch.Div.1951) mod. 23 N.J. Super. 409 (App.Div.1952) certif. den. 11 N.J. 583 (N.J.1953); Cohen v. Cohen , 6 N.J. Super 26 (App.Div.1949); Eisler v. Toms , 160 N.J. Super. 272. Most recently this rule manifested itself in the case of C v. R. , 169 N.J. Super. 168 (Ch.Div.1979), where the court stated:
The duty to support minor children ordinarily ceases upon emancipation by age, marriage, self-sufficiency or upon termination of parental rights. [at 179]
However, exceptions to this rule were anticipated by the court in Cohen, supra.
Ordinarily, the obligation of the parent to support ends when the child reaches full age, although it might continue indefinitely if the child were crippled or unable to support himself. In many cases, the obligation terminates when the child is around 18 years. [Amos] v. [Amos] , 4 N.J. Eq. 171 (Pennington, C., 1842); Snover v. Snover , 13 N.J. Eq. 261 (Green, C., 1861); 1 Biggles, Com. 449. It is probably safe to say that when the family situation is such that, had there been no divorce or separation, the child would have gone to work and become self-supporting before attaining age 21, the duty of the parents under the statute likewise terminates while the child is still a minor. On the other hand, in a family where a college education would seem normal, and where the child ...