On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-640-02.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner,*fn1 Parrillo and Holston, Jr.
In this post-judgment matrimonial matter, plaintiff, Barbara M. Dolce, appeals from an order of the Family Part declaring the parties' son emancipated as of age eighteen and terminating the child support obligation of defendant, Vincent J. Dolce, Sr.
At the time of their divorce on October 18, 2001, the parties were parents of a son, Vincent, Jr., who was born on July 17, 1986. Prior to their divorce, the parties entered into a property settlement agreement (PSA) on September 18, 2001, that was eventually incorporated into the final judgment of divorce (FJD). For purposes here relevant, the parties agreed that plaintiff would be awarded primary residential custody of their son, and that defendant would pay child support of $200 per week until the son's emancipation, which would occur at the earliest of the following events:
A) Reaching the age of twenty-three (23) years or completion of four (4) academic years of college, whichever occurs first.
B) Marriage of the child, even though such marriage may be void or avoidable or annulled;
D) Entry of the child into the Armed Forces of the United States, whether voluntary or involuntary.
Although the parties proceeded without benefit of counsel, they acknowledged that the PSA was "fair, adequate and satisfactory to them."
Despite the emancipation provision of the PSA, defendant moved to declare his son emancipated shortly after Vincent, Jr. turned eighteen on July 17, 2004. By then, Vincent, Jr. had discontinued his formal high school education at the age of fifteen, was subsequently home schooled for a time, but had yet to successfully obtain his GED. In support of his motion, defendant relied exclusively on the fact that Vincent, Jr. had attained the age of majority. He did not allege, much less demonstrate, that his son was economically self-sufficient or otherwise met any of the emancipation events listed in the PSA, or that circumstances had substantially changed. The Family Part judge granted defendant's motion, declaring the son emancipated as of September 4, 2004, the date the motion was filed. Although the judge acknowledged that Vincent, Jr. suffered from "education problems for quite some time," -- a fact conceded by both parties -- he nevertheless found the son emancipated essentially "by operation of law":
There's one difference in this case, and that is he's emancipated by operation of law. I don't believe that you can contract to compel him to pay beyond what he's required to do legally. In other words, this boy is not a student. We know that. He's not a good student, but that's not the issue. Not being a good student has no bearing on it. He dropped out of school. He was home-schooled. He didn't pass the GED. He's been employed. I don't believe that you can compel the father to pay support beyond his emancipation, and I think he's emancipated by law. The ...