June 21, 2007
TIMOTHY CLAYTON, PLAINTIFF-RESPONDENT,
MERI ANN DETER, F/K/A MERI ANN CLAYTON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-56-04S.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 16, 2007
Before Judges C.S. Fisher and Messano.
Defendant Meri Ann Deter, formerly known as Meri Ann Clayton, appeals from that portion of the motion judge's October 20, 2006, order that granted her former husband, defendant Timothy Clayton's, motion to declare the couple's son, Stewart, emancipated. After careful consideration of the record and applicable legal standards, we affirm.
Plaintiff and defendant were married on November 7, 1976, and Stewart was born on May 30, 1987. The parties incorporated the property settlement agreement (PSA) they reached in their June 21, 2004, dual judgment of divorce. Pursuant to the PSA, plaintiff was to pay defendant $400 per week in permanent alimony and $153 per week in child support. With respect to Stewart's future college education, the PSA provided,
This issue is not ripe for determination. In the future, it shall be determined per Newburgh v. Arrigo, 88 N.J. Super. 529 .*fn1
In the fall of 2005, plaintiff moved to declare Stewart emancipated and to terminate his child support obligations since his son was now eighteen. That motion was denied, the judge finding that Stewart "intended to pursue a college education." However, the judge did order defendant to provide plaintiff with "any and all medical and education records" of their son within thirty days.
One year later, plaintiff renewed his motion and in support he certified that Stewart had attended Widener University during the 2005-06 school year but had accumulated only nine credits in the fall semester and three credits in the spring semester. An enrollment verification from the university's registrar corroborated plaintiff's assertions. In addition, the verification form indicated that Stewart was not enrolled for the fall 2006 semester.
Plaintiff's certification also described the unfortunate lack of any personal relationship between father and son. He asserted that he had not spoken to his son since before the judgment of divorce two years earlier, he was unable to communicate with defendant, and he never received any medical or educational records from defendant as required by the prior order. Because plaintiff could not verify Stewart's enrollment as a full-time student in college, he was unable to maintain coverage for his son through his employer's group medical insurance plan. In sum, plaintiff argued he was "now entitled to a presumption of emancipation and it was now the defendant's obligation to come forward to rebut that presumption."
Defendant filed no opposition to the motion herself; rather, Stewart filed a certification in opposition which, in large part, detailed the complete rupture of the father-son relationship and blamed plaintiff's "lunatic" behavior for the state of affairs. Stewart claimed he was "unable to concentrate properly on [his] studies" at Widener because of plaintiff's conduct and accused plaintiff of "trying to have [him] fail out of school." As of the date of the certification, September 27, 2006, Stewart contended he "[had] transferred to Ocean County Community College where [he was] continuing his studies, and [was] a full-time student enrolled and intend[ing] to matriculate."
Although plaintiff's motion requested oral argument, the judge considered the matter on the papers. Defendant does not assert she objected to that decision. The judge concluded that plaintiff ha[d] presented sufficient evidence . . . to find a prima facie showing that Stewart is now emancipated. Thus, the burden now shifts to the [d]efendant to rebut this prima facie showing . . . . [T]he [d]efendant has failed to meet this burden.
He continued by noting that defendant had not submitted "her own certification," nor presented any "physical evidence that Stewart is not emancipated." The judge found that except for Stewart's bald certification, defendant did not submit "any further evidence such as transcripts or an enrollment letter demonstrating that Stewart is attending [college] on a full time basis." The judge further found that plaintiff "has no way of determining if Stewart is enrolled in college," and that Stewart admitted he had "no contact with his father, and is no longer enrolled full time at Widener University." Lastly, the judge found that defendant had violated his prior order requiring her to provide plaintiff with all of Stewart's educational records and concluded that based upon all of these facts, defendant "failed to rebut the prima facie showing of emancipation demonstrated by [p]laintiff."
The judge ordered that Stewart be deemed emancipated as of the date plaintiff filed his motion, and terminated the support obligations as of that date. This appeal ensued.
Defendant's sole point on appeal is that the judge should have conducted a hearing on plaintiff's application so that the twelve factors outlined in Newburgh and those codified in N.J.S.A. 2A:34-23(a) could be properly considered. We disagree.
In Newburgh, the Supreme Court recognized a "prima facie, though not conclusive," presumption in favor of emancipation once a child reaches the age of eighteen. 88 N.J. at 543. The duty of the parent to support the child can continue, however, "where a child, after attaining majority, seeks contribution from a non-custodial parent for the cost of a college education." Ibid. In that circumstance, twelve factors should be considered to determine the existence and scope of the non-custodial parent's obligation to continue the support.
In evaluating the claim for contribution toward the cost of higher education, courts should consider all relevant factors, including (1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child, including assets owned individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants and loans; (11) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child. [Id. at 545.]
In adopting N.J.S.A. 2A:34-23(a), the Legislature "essentially approved those criteria." Gac v. Gac, 186 N.J. 535, 543 (2006).
Thus, a trial court should balance the statutory criteria of N.J.S.A. 2A:34-23(a) and the Newburgh factors, as well as any other relevant circumstances, to reach a fair and just decision whether and, if so, in what amount, a parent or parents must contribute to a child's educational expenses. [Ibid.]
The event that triggers the court's obligation to conduct a plenary hearing under Newburgh and its progeny, however, is the child's continued enrollment in school beyond the presumptive age of emancipation. Or, alternatively,
[A] parent or child seeking contribution towards the expenses of higher education will make the request before the educational expenses are incurred. As soon as practical, the parent or child should communicate with the other parent concerning the many issues inherent in selecting a college. At a minimum, a parent or child seeking contribution should initiate the application to the court before the expenses are incurred. The failure to do so will weigh heavily against the grant of a future application. [Id. at 546-47.]
Here, the judge found that defendant had not rebutted the presumption of emancipation because she supplied nothing in opposition to plaintiff's motion except Stewart's own, uncorroborated certification, which, we note, merely stated that he "intend[ed] to matriculate" at Ocean County Community College. Implicit in the judge's conclusion was his finding that defendant failed to raise a factual dispute regarding Stewart's continued enrollment as a full-time college student. We find no basis to disturb the judge's finding in this regard.
Furthermore, defendant failed to supply plaintiff with the rudimentary educational information the court previously required her to furnish. She never moved, nor cross-moved in opposition to plaintiff's motion, to compel plaintiff to pay for Stewart's educational costs after he admittedly left Widener University. Under Gac, this would have been the appropriate procedure by which to raise the issue. Having failed to do so, we cannot agree that defendant was entitled to a plenary hearing on the issue or that the judge needed to analyze plaintiff's request in accordance with Newburgh's twelve factors.