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Filippone v. Lee

September 23, 1997

MARK FILIPPONE, PLAINTIFF-RESPONDENT/CROSS-APPELLANT,
v.
FLORENCE S. LEE F/K/A FLORENCE S. FILIPPONE, DEFENDANT-APPELLANT/CROSS-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County.

Approved for Publication September 24, 1997.

Before Judges Pressler, Wallace and Carchman. The opinion of the court was delivered by Pressler, P.j.a.d.

The opinion of the court was delivered by: Pressler

The opinion of the court was delivered by

PRESSLER, P.J.A.D.

This is a post-judgment marital matter involving, essentially, the issue of whether either or both of the two children of the marriage are emancipated and, if so, as of what time. The mother, defendant Florence S. Lee, a physician against whom a support order for both of the children had previously been entered, appeals on leave granted from two orders of the Family Part entered on July 15, 1996, declaring that the daughter of the marriage, Gita Filippone, was unemancipated as of that date and would remain unemancipated until graduation from college or earlier termination of her college enrollment. She also appeals from the determination that the son of the marriage, Ted Filippone, was not emancipated prior to June 1, 1995. The father, plaintiff Mark S. Filippone, also a physician, cross appeals from the declaration that the son of the marriage, Ted Filippone, was emancipated as of June 1, 1995. Both parties also appeal from those provisions of the two orders specifying their own and the other's continued support, arrearages, and counsel fee obligations as well as a provision requiring a plenary hearing to determine the mother's asserted entitlement to credit for support she paid for Ted while he was a resident at Lazarus House, a community support facility. We affirm the orders insofar as they adjudicate the emancipation issue respecting both children, direct the modification of the support provisions consistent with this opinion, and remand for further proceedings.

We are constrained at the outset to note the procedural irregularities attending the Disposition of this matter in the trial court. We have concluded from our review of the record and from the briefs and oral arguments on these appeals that these procedural irregularities do not preclude our address of the merits of the emancipation issues for the reason that there is no dispute of material fact raised by the motions in the trial court. Nevertheless, these procedural irregularities are significant, have potentially serious consequences in terms of the correct and expeditious Disposition of litigation, and should not be repeated in the future.

First, these serious emancipation disputes were decided on the papers pursuant to R. 1:6-2(b) and (d) and R. 5:5-4(a) despite the request of both parties for oral argument. R. 5:5-4(a) provides in pertinent part that "the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions...." This was obviously a substantive motion that the parties should have been allowed to argue orally as a matter both of due process and the appearance of due process. See, e.g., Fusco v. Fusco, 186 N.J. Super. 321, 328-329, 452 A.2d 681 (App. Div. 1982). There was patently no special or unusual circumstance here warranting the court's dispensing with an entirely appropriate request for oral argument of a motion presumptively entitled to argument on request. Compare Kozak v. Kozak, 280 N.J. Super. 272, 655 A.2d 95 (Ch. Div. 1994) (request for oral argument of a substantive motion may be denied if the court is satisfied that the motion is frivolous, repetitive, based on unsubstantiated allegations and intended to harass).

We further note that in deciding these motions on the papers, the Judge, contrary to the mandate of R. 1:7-4, gave no indication at all of his reasons, either by an oral statement on the record, a letter of explanation, or a notation on the orders themselves. We have repeatedly cautioned the trial court with respect to the critical importance of the obligation to provide findings and a statement of reasons both in terms of the trial and appellate process. Litigants and their attorneys are entitled to know the factual and legal basis of the court's determination, and they are disserved if the trial court fails in this obligation. Moreover, the appellate court ordinarily cannot perform its review function in the absence of findings. See, e.g., Curtis v. Finneran, 83 N.J. 563, 569-570, 417 A.2d 15 (1980); Italiano v. Rudkin (Italiano), 294 N.J. Super. 502, 505, 683 A.2d 854 (App. Div. 1996); Ribner v. Ribner, 290 N.J. Super. 66, 77, 674 A.2d 1021 (App. Div. 1996); Salch v. Salch, 240 N.J. Super. 441, 443, 573 A.2d 520 (App. Div. 1990); Matter of Will of Marinus, 201 N.J. Super. 329, 338-339, 493 A.2d 44 (App. Div. 1985), certif. denied, 101 N.J. 332, 501 A.2d 981 (1985). It is only because the emancipation issues raised on this appeal involve only questions of law in the context of undisputed facts that we are able to proceed to Disposition without burdening the parties and the court system with the remand that would otherwise be necessary. *fn1

There is yet another anomaly we must address. The emancipation decisions made here resulted from the father's motion to enforce the mother's adjudicated support obligation and the mother's cross motion to declare the children emancipated. In making their respective motions, each party submitted a form of order in accordance with R. 1:6-2(a). Predictably, the two forms contained contradictory and otherwise disparate provisions. As we have noted, each of the parties prevailed to some extent. One child was declared emancipated, the other not, and discrete support and arrearage provisions flowed from each determination. Under these circumstances, the appropriate way for the court to have proceeded would have been to advise the parties of the totality of its rulings with reasons therefor, and then directed one of the parties, most likely the one most prevailing, to draft a single conforming order memorializing all of the Dispositions. What happened here is that the Judge, with substantial interlineations, added paragraphs, and crossings out, signed both the orders submitted to him with the motions. The result is a pair of orders difficult to read and refer to, to some extent inconsistent in decretal provision, and providing a poor and potentially confusing litigation record for now and the future. That too disserves the interests of the parties and the appellate court and is a practice that should not be repeated.

We now address the emancipation issues. We do so in light of these well-settled principles. 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 the 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, 671 A.2d 644 (Ch. Div. 1995). See also Newburgh v. Arrigo, 88 N.J. 529, 543, 443 A.2d 1031 (1982); Weitzman v. Weitzman, 228 N.J. Super. 346, 356, 549 A.2d 888 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989); Quinn v. Johnson, 247 N.J. Super. 572, 577, 589 A.2d 1077 (Ch. Div. 1991).

These are Gita's circumstances. She was born in 1976, five years before her parents' separation. Although she and her brother Ted were initially in their mother's custody, they moved back with their father in 1987, and the ensuing custody dispute between the parents was resolved in 1989 by a consent order providing for joint legal custody with the father having primary residential custody and the mother having specified visitation privileges. In 1990, on the father's application, an order was entered requiring the mother to pay weekly child support in the amount of $175 for each child as well as forty-seven percent of their school and college expenses and unreimbursed medical bills. Gita was then in high school. She completed high school in a timely manner and then enrolled in St. Peter's College, which she still attends as a full-time student.

The basis on which the mother claims that Gita is emancipated despite what would otherwise appear to be a clear case of non-emancipation under Newburgh v. Arrigo, (supra) , is the fact that in 1994, while in high school and living with her father, Gita became pregnant and gave birth to a child. She did not marry the father of the child, who provides her with minimal support for the baby. She continued to live at home, to attend high school and now college, and to rely on parental support to meet her personal and educational needs. The only question is whether the birth of a child to an unmarried teenager who is still financially dependent on her parents, who lives at home, and who, in terms of her age, educational pursuits, and other circumstances would be patently non-emancipated, is rendered emancipated simply by reason of the birth of the child. Although the issue has not been considered in a reported New Jersey case, other states that have addressed it are unanimous in concluding that an otherwise unemancipated teenager who is otherwise dependent on parental support is not disqualified from receiving it because she has become pregnant and elected to give birth to a child as an unmarried mother. Her own motherhood in these circumstances does not render her emancipated. See, e.g., In re Marriage of Clay, 670 P.2d 31, 32 (Colo. Ct. App. 1983); Doerrfeld v. Konz, 524 So. 2d 1115, 1116-1117 (Fla. Dist. Ct. App. 1988); Hicks v. Fulton County Dept. of Family and Children Services, 155 Ga. App. 1, 270 S.E.2d 254, 255 (Ga. Ct. App. 1980); French v. French, 599 S.W.2d 40, 41 (Mo. Ct. App. 1980); Wulff v. Wulff, 243 Neb. 616, 500 N.W.2d 845, 851 (Neb. 1993); Thompson v. Thompson, 94 Misc. 2d 911, 405 N.Y.S.2d 974, 975 (Fam. Ct. 1978), aff'd, 71 A.D.2d 753, 419 N.Y.S.2d 239 (N.Y. App. Div. 1979); Griffin v. Griffin, 384 Pa. Super. 188, 558 A.2d 75, 80 (Pa. Super. Ct. 1989), appeal denied, 571 A.2d 383 (Pa. 1989). As these cases make clear, the fact that a daughter in these circumstances is receiving some financial assistance, either public or from the father, for her child or is working part-time to contribute to her and the child's expenses while attending college is of no moment in the emancipation determination.

We are in full accord with the decisions of our sister states. There is no question that the daughter of this marriage would be unemancipated but for the birth of her child. Her responsibility for that child does not make her any less dependent as a college student living in her father's house. We therefore affirm the decision of the trial court declaring that ...


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