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Kilpatrick v. Kilpatrick

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 8, 2007

GAIL KILPATRICK, PLAINTIFF-RESPONDENT,
v.
JAMES KILPATRICK, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket Nos. FM-15447-88, FD-13-1699-95A.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 10, 2007

Before Judges R. B. Coleman and Sapp-Peterson.

Defendant, James Kilpatrick, appeals from a July 17, 2006, order denying reconsideration of a May 12, 2006, order denying his motion to have his son, Brian Kilpatrick, emancipated for purposes of child support. For the reasons that follow, we reverse and remand.

Brian Kilpatrick is the only child of the marriage between defendant and plaintiff, Gail Kilpatrick. Brian was born on January 8, 1983. Plaintiff obtained a default judgment of divorce on May 3, 1988. Defendant, who has been adjudicated by the Social Security Administration as disabled, was obligated to pay child support of $60 per week plus arrears payments of $20 per week. These monies are automatically deducted from defendant's monthly Social Security Disability payments, his sole source of income. Following these deductions, defendant is left with $840.50 per month or $195 per week to meet his expenses.

Brian, at the age of twenty-two, graduated from Florida State University on April 30, 2005. Defendant has certified that when he visited plaintiff, Brian, and plaintiff's mother in Spring 2005, Brian was then living with his girlfriend, apart from his mother. Defendant also certified that Brian continued to live with his girlfriend after graduation. Following graduation, Brian enrolled in a graduate program at Florida International University, where he is in the process of completing his studies for a Master's Degree in Business Administration. Based on this, defendant filed a motion on January 13, 2006, to have his son emancipated.

Plaintiff opposed the motion on the grounds that Brian is still a student and should therefore not be considered emancipated. Although defendant made numerous requests for oral argument on the motion, no oral arguments were held. Defendant's motion was denied by an order dated May 12, 2006. In the accompanying statement of reasons, the judge stated that Brian's status as a full-time graduate student precluded emancipation. The judge did, however, reduce defendant's weekly support obligation to $40 per week.

Defendant then filed a motion for reconsideration on June 1, 2006, on the grounds that (1) the original motion contained sufficient facts to justify emancipation; (2) additional facts discovered and/or verified by counsel following the original motion further supported a finding of emancipation; and (3) that the court had improperly denied counsel's request for oral argument. In support of this motion, defendant submitted documentation to support the following additional facts.

Brian and his girlfriend purchased a home in Tamarac, Florida, on February 17, 2006. On that same day, they mortgaged the home for $148,000 through J.P. Morgan Chase. They also secured a second mortgage on the property through a home equity line of credit, totaling $25,000, with National City Bank. The supporting documentation also lists an address for Brian's prior residence separate from that of plaintiff's residence.

Defendant again requested oral argument. The matter was originally scheduled to be heard on July 7, 2006, but due to statewide shutdown of governmental bodies, arguments were rescheduled for August 18, 2006. Defendant's motion for reconsideration was denied by an order filed July 17, 2006. In an attached statement of reasons, the court stated that it was denying the motion on the grounds that Brian's purchase of his own residence in February 2006 was "not new information which could not have been discovered with the exercise of due diligence prior to the May 12, 2006 motion date." Then, having learned on August 17, 2006, that plaintiff would not be attending oral arguments, the judge issued a letter on August 21, 2006, stating that arguments had been cancelled and affirming the July 17, 2006, order denying reconsideration. Defendant now appeals from that order.

"Emancipation -- the conclusion of the fundamental dependent relationship between parent and child -- is not a self-executing principle." Dolce v. Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006). "Although emancipation need not occur at any particular age, a rebuttable presumption against emancipation exists prior to attaining the age of majority, now 18." Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). "[R]eaching the age of majority establishes only 'prima facie, but not conclusive, proof of emancipation.'" Dolce, supra, 383 N.J. Super. at 17 (quoting Newburgh, supra, 88 N.J. at 543).

The determination of "[w]hether a child is emancipated at age 18, with the correlative termination of the right to parental support," is a fact sensitive inquiry. Newburgh, supra, 88 N.J. at 543. "[T]he 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.'" Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)). Such a determination involves "a critical evaluation of the prevailing circumstances including the child's need, interests, and independent resources, the family's reasonable expectations, and the parties' financial ability, among other things." Dolce, supra, 383 N.J. Super. at 18 (citing Newburgh, supra, 88 N.J. at 545).

Here, in denying defendant's motion for emancipation, the court relied on Limpert v. Limpert, 119 N.J. Super. 438 (App. Div. 1972) for the proposition that where a child has been continuing his or her education on a full-time status, there is an indication that the child is not emancipated. However, Limpert does not stand for the proposition that any child who is enrolled full time in school can not be declared emancipated. A court must still make the inquiries outlined above. Here, the court failed do so.

Moreover, in denying defendant's motion for reconsideration, the court disregarded the fact that Brian had purchased a home, on the grounds that defendant could have discovered that information prior to the initial motion. As another panel of this court noted, "[i]n a perfect world [defendant] could have gotten this information from his son, but absent that, such obligation falls on [plaintiff], as the custodial parent receiving child support, to provide the information." Tretola v. Tretola, 389 N.J. Super. 15, 20 (App. Div. 2006). In Tretola the court was faced with a father's desire to obtain information regarding the number of school credits his son was taking and documentation regarding his earnings. Such information was necessary to assess whether the son was still dependent on his family for support. Ibid.

This case presents a similar situation; ideally defendant would have been aware of Brian's home purchase prior to filing the motion, but this is not an ideal world. This is also the sort of information that likely would have been revealed through oral argument or an evidentiary hearing, neither of which occurred. The mere fact that Brian is enrolled as a full-time graduate student, by itself, is insufficient to preclude a determination of emancipation. To the extent plaintiff was aware of Brian's residential and financial circumstances, she had the obligation to inform defendant and the court in order that Brian's current status and plaintiff's role in supporting him could be fairly evaluated. Even if the information was discoverable at the time of the initial motion, a motion for "reconsideration is a matter within the sound discretion of the court, to be exercised in the interest of justice." Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). It is not to be exercised mechanically.

The record reveals, via unrebutted certifications and supporting documentation, that Brian was living separate and apart from his mother during college. The record also shows that Brian and his girlfriend, with whom he lives, have subsequently purchased a home and obtained two mortgages on the property. Brian's purchase of a home and establishment of a household separate from that of his custodial parent, strongly indicates that Brian has moved "beyond the sphere of influence and responsibility exercised by a parent and obtain[ed] an independent status of his . . . own." Bishop, supra, 287 N.J. Super. at 598. These circumstances, coupled with the fact that defendant is currently living below the poverty line, are sufficient to constitute changed circumstances warranting emancipation. Consequently, we need not address defendant's arguments regarding oral argument.

On the record established, we reverse and remand for entry of an order reflecting emancipation as of Brian's graduation from college, June 30, 2005, and directing that all payments since that date be credited towards arrears.

Reversed and remanded. We do not retain jurisdiction.

20070808

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