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Bishop v. Bishop

July 28, 1995

CARLENE BISHOP, PLAINTIFF,
v.
ROBERT BISHOP, DEFENDANT.



DE Luccia, J.s.c.

The opinion of the court was delivered by: DE Luccia

OPINION

DE LUCCIA, J.S.C.

The issue in this case is whether a 20-year old cadet enrolled at the United States Military Academy at West Point (West Point) should be declared emancipated, thus relieving his divorced father from any obligation to provide his former spouse with child support. This question does not appear to have been previously considered in any reported decision in this jurisdiction. What hereinafter follows is the court's written supplementation of its oral decision rendered from the bench on July 28, 1995.

The matter is before the court by way of plaintiff's post-judgment motion which seeks enforcement of a certain interspousal agreement entered into at the time of the divorce. Plaintiff requests an increase in child support as well as establishment of support arrears. Other issues not germane to this question were also presented for the court's consideration. They were separately addressed in the court's oral decision, and are not included in this opinion.

The present controversy evolved as follows: The parties were divorced by judgment entered January 7, 1988. The judgment incorporated the terms of a "verbal property settlement and support agreement" which had been placed upon the record on an earlier date. The agreement purportedly resolved the custody and economic issues in the dissolution of their marriage.

The agreement provided that the parties were to share "joint legal custody" of their three children with physical custody reposing with plaintiff. Defendant was obligated to pay child support in the sum of $600 per month. The support payments were allocated $200 per month per child. The agreement also required that "...the payment of support for each child ... continue until such time as each child is emancipated." The parties failed to define "emancipation" in their agreement. The agreement also stipulated that the parties were to "...share expenses for the attendance at college by the children on a basis consistent with the respective financial abilities to pay at the time a particular child attends college." The agreement did not recite a formula or method for the determination of that obligation. However, the parties were to confer in respect of the selection of any post-secondary educational opportunity for the children.

Sometime prior to this motion, defendant reduced his support payments from $600 to $400. This action was apparently the consequence of the emancipation of the parties' eldest child. This reduction has not been contested by plaintiff. However, when the parties' second child entered West Point in August 1993, defendant again unilaterally reduced his monthly child support obligation by an additional $200. Plaintiff now resists defendant's action.

Plaintiff contends that notwithstanding her son's status as a cadet at West Point, she continues to provide him with significant financial support, and therefore, is entitled to have defendant's support obligation continue, if not increased. Plaintiff argues that their son should be treated in the same fashion as any other unemancipated child attending college. She claims that she continues to maintain the former marital home in part to accommodate her son's seven to nine weekend visits per semester. Additionally, her son returns home for approximately one month during the summer. Plaintiff maintains that during such visits she incurs additional expenses for food and transportation.

Defendant argues that his son's status at West Point is not analogous to the typical college student. He maintains that federal law considers cadets at West Point as members of the United States Army on active duty. He further notes that not only does his son receive his education without parental contribution, but all of his other expenses including room and board are paid by the military. In addition, he receives a stipend of $100.00 per month. He notes that traditionally, minors who enter the military are deemed emancipated.

The parties submitted certifications and affidavits in support of their respective positions. Upon review, the court has concluded that there are no material facts which are genuinely controverted. Consequently, the motion will be addressed without the benefit of a plenary hearing. Shaw v. Shaw, 138 N.J. Super. 436, 440, 351 A.2d 374 (App. Div. 1976). *fn1

It is firmly established that there is no specific age at which the emancipation of a child occurs. The issue is fact sensitive and requires a critical evaluation of then prevailing circumstances as they are presented in each case. Newburgh v. Arrigo, 88 N.J. 529, 543, 443 A.2d 1031 (1982). Generally, a rebuttable presumption against emancipation exists prior to the attainment of the age of majority which is eighteen. Reaching age eighteen establishes prima facie, but not conclusive proof of emancipation. Ibid.

The reported decisions in this jurisdiction hold that the emancipation of a child occurs when the fundamental defendant relationship between parent and child is terminated. When a child moves beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status on his or her own, generally he or she will be deemed emancipated. Thus emancipation has been recognized upon a child's marriage, Leith v. Horgan, 24 N.J. Super. 516, 518, 95 A.2d 15 (App. Div. 1953); induction into the military service, Slep v. Slep, 43 N.J. Super. 538, 543, 129 A.2d 317 (Ch. Div. 1957), or by the entry of a court order based upon a determination as to the child's best interest, N.J. Div. of Youth & Family Serv. v. V, 154 N.J. Super. 531, 536-537, 381 A.2d 1241 (J. & D. R. Ct. 1977).

In Newburgh, supra, the Supreme Court recognized that, "...in appropriate circumstances, the privilege of parenthood carries with it the duty to assure a necessary education for children." Id. at 543. Consonant with that principal, our courts have required divorced parents to contribute towards a child's post-secondary education, Khalaf v. Khalaf, 58 N.J. 63, 71-72, 275 A.2d 132 (1971); required supporting spouses to continue support payments while a child was enrolled in a full time undergraduate program, Limpert v. Limpert, 119 N.J. Super. 438, 442-443, 292 A.2d 38 (App. Div. 1972); and have even required the continuation of support payments for a twenty-three year old child pursuing a post-graduate law degree, Ross v. Ross, 167 N.J. Super. 441, 444-446, 400 A.2d 1233 (Ch. Div. 1979). An examination of the facts in ...


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