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Ribner v. Ribner

May 2, 1996

JOANNE RIBNER, PLAINTIFF-RESPONDENT,
v.
CHESTER DAVID RIBNER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County.

Approved for Publication May 2, 1996.

Before Judges Michels and Baime. The opinion of the court was delivered by Michels, P.j.a.d.

The opinion of the court was delivered by: Michels

The opinion of the court was delivered by MICHELS, P.J.A.D.

Defendant Chester David Ribner appeals from portions of a post-judgment order of the Chancery Division, Family Part, that (1) denied his motion to amend child support obligations based on changed circumstances; (2) ordered him to reimburse plaintiff Joanne Ribner, now Joanne Tammaro, $349 for a life insurance premium; (3) fixed arrearages in support payments at $14,568.01, together with lawful interest, to be paid at the rate of $100 per week; and (4) declared that Corey Ribner (Corey), a son born of his marriage to plaintiff, was emancipated under Florida law.

Defendant seeks a reversal of the order and a remand for further proceedings to determine (1) child support obligations pursuant to New Jersey law; (2) plaintiff's complete financial status, including discovery of the maintenance she receives from her current spouse; and (3) arrearages pursuant to a May 31, 1990 Order and in accordance with his ability to pay. Defendant contends that (1) the trial court did not have a sufficient basis in fact or law to find Corey emancipated under Florida law; (2) the trial court erred in finding that plaintiff's present spouse's income should not be considered in calculating child support; (3) the trial court erred in fixing arrearages at $14,568.01 and in ordering payment at the rate of $100 per week given the fact that his income was limited to approximately $563 per week; and (4) the trial court erred in finding that he should reimburse plaintiff $349 for life insurance premiums when he, in fact, made payments of those premiums.

I.

Defendant first contends that the trial court had an insufficient basis in fact or law to find Corey emancipated under Florida law. He argues that jurisdiction of this matter remained in New Jersey and that the child support issue should have been decided under New Jersey law. More precisely, defendant contends that New Jersey law should apply to the issue of Corey's emancipation. Despite these arguments, it is clear on this record, that during the October 28, 1994 hearing, defendant's counsel failed to object, and even implicitly accepted that the issue of Corey's emancipation would be decided under Florida law.

"It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Skripek v. Bergamo, 200 N.J. Super. 620, 629, 491 A.2d 1336 (App. Div.) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234, 300 A.2d 142 (1973)), certif. denied, 102 N.J. 303 (1988); see also Chalef v. Ryerson, 277 N.J. Super. 22, 28-29, 648 A.2d 1139 (App. Div. 1994); State v. Bogus, 223 N.J. Super. 409, 419, 538 A.2d 1278 (App. Div.), certif. denied, 111 N.J. 567 (1988).

Here, the issue does not concern the trial court's jurisdiction, but whether the trial court made the proper choice of law decision. Therefore, since no objection was raised below regarding the trial court's decision to apply Florida law, we decline to review the issue of whether the trial court correctly chose to apply Florida law in determining Corey's emancipation.

Alternatively, defendant argues that the trial court did not have a sufficient factual basis to determine that Corey, because of his mental or physical incapacity, was emancipated. Application of Florida law to the determination of whether Corey was emancipated, requires reference to Section 743.07 of the Florida statutes, which addresses the rights, privileges and obligations of persons 18 years of age or older. The statute, in pertinent part, provides:

(1) The disability of nonage is hereby removed for all persons in this state who are 18 years of age or older, and they shall enjoy and suffer the rights, privileges, and obligations of all persons 21 years of age or older except as otherwise excluded by the State Constitution immediately preceding the effective date of this section and except as otherwise provided in the Beverage Law.

(2) This section shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years when such dependency is because of a mental or physical incapacity which began prior to such person reaching majority or if the person is dependent in fact, is between the ages of 18 and 19, and is still in high school, performing in good faith with a reasonable expectation of graduation before the age of 19. [FLA. STAT. ANN. § 743.07 (West 1991) (emphasis added).]

Based upon this provision, Florida Law "does not independently impose on parents the duty of supporting their healthy, non-dependent children who have reached the age of majority." Zolonz v. Zolonz, 659 So. 2d 451, 452 (Fla. Dist. Ct. App. 1995). However, as in New Jersey, the determination of whether a child is emancipated is necessarily a factual one. In situations in which there is no evidence that a child "labors under any mental or physical incapacities[,]" a request for child support will be denied. McCauley v. McCauley, 599 So. 2d 1002, 1004 (Fla. Dist. Ct. App. ...


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