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Offner v. Lewis

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 27, 2008

JUDITH OFFNER PLAINTIFF-RESPONDENT,
v.
EDMOND LEWIS, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, FM-08-861-95.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 22, 2008

Before Judges Collester and C.L. Miniman.

Defendant Edmond Lewis appeals from an order of the Family Part denying his motion to emancipate and terminate child support for his son Gary; continuing his current child support obligation of $135 a week; and requiring him to contribute to Gary's college costs and books.

Edmond and his wife Judith were divorced on January 15, 1997. Under their property settlement agreement Judith had residential custody of their two children, Andrew, born March 14, 1987, and Gary, born October 31, 1988. Edmond was to pay $190 in child support, which was later increased to $234 per week. The agreement contained no provision as to emancipation or payment of college expenses.

Andrew turned eighteen on March 4, 2005, graduated from high school on June 15, 2005, and began attending Gloucester County College on December 30, 2005 when Edmond filed a motion for an order emancipating Andrew as of his high school graduation date and reducing child support with credit toward arrears of payments for Andrew after June 15, 2005. The Family Court judge ordered Andrew's emancipation as of December 30, 2005, the date Edmond filed his motion, and further ordered that Edmond and Judith were to share equally in Andrew's college expenses after all loans, grants and scholarships. Edmond's request to modify his child support obligation was denied without prejudice, and after a subsequent application for reduction, his child support was reduced for Gary to $135 a week with the effective date of December 30, 2005.

On June 29, 2007, Edmond filed a motion to emancipate Gary and to terminate child support. Gary turned eighteen on October 31, 2006, and he graduated from high school on June 20, 2007. In opposition Judith certified Gary planned to attend Gloucester County College in the fall as a full-time student and would continue living at home and, as a result, she would continue to bear the cost of his everyday expenses. Judith also filed a cross-motion to require Edmond to pay a proportionate share of college expenses which, under the child support guidelines, equaled forty-three percent of the total. Following oral argument on June 29, 2007, the Family Court judge declined to emancipate Gary, denied Edmond's motion to terminate child support, and directed that he pay forty-three percent of the college expenses as requested by Judith. Edmond appeals, arguing that the judge erred in denying the application to emancipate Gary and terminate his child support. He also contends that stare decisis and law of the case mandate the judge to declare Gary emancipated since another Family Court judge had emancipated Andrew under the same facts.

N.J.S.A. 9:17B-3 establishes the general rule that persons over the age of eighteen are legal adults. However, age alone is not dispositive of emancipation. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982); L.D. v. K.D., 315 N.J. Super. 71, 75 (Ch. Div. 1998). Attainment of age eighteen establishes prima facie but not conclusive proof of emancipation, and the issue is always fact-sensitive. Newburgh, supra, 88 N.J. at 543; Limpert v. Limpert, 119 N.J. Super. 438, 440 (App. Div. 1972). The judge must determine whether the child has moved "beyond the sphere of influence and responsibility exercised by a parent and [has obtained] an independent status of his or her own." Fillippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995). The record on appeal reveals a factual dispute between the parties on this critical issue, and proper factfinding requires a plenary hearing in the Family Court. Fusco v. Fusco, 186 N.J. Super. 312 (App. Div. 1982); Tancredi v. Tancredi, 101 N.J. Super. 259 (App. Div. 1968).

With regard to college costs and expenses, our Supreme Court has stated, Generally parents are not under a duty to support children after the age of majority, nevertheless, in appropriate circumstances, the privilege of parenthood carries with it the duty to assure a necessary education for children. Frequently, the issue of that duty arises in the context of a divorce or separation proceeding where a child, after attaining majority, seeks contribution from a non-custodial parent for the cost of a college education. In those cases, courts have treated "necessary education" as a flexible concept that can vary in different circumstances. [Newburgh v. Arrigo, supra, 88 N.J. at 529.]

Newburgh listed twelve relevant factors to be considered in evaluating a claim for court contribution for college or other higher education. Newburgh, supra, 88 N.J. at 529. Edmond argues that several of the factors weigh in his decision not to contribute to Gary's college costs. He argues that he had no influence in Gary's decision to attend college. He alleges Gary was a poor student and unsuitable for college. He also certifies that he told Gary he would not pay for college after Gary failed to obtain certain scholarships. He adds that he is estranged from Gary and that Gary had no expectation of a college contribution from him. Finally, he argues he cannot offer any contribution and that Judith has income sufficient to pay Gary's college without his help. Judith contests many of these factual contentions including Edmond's relationship with Gary, and she alleges facts to justify the order for Edmond to contribute under Newburgh. Therefore, the plenary hearing we have ordered must also address this issue.

Finally, there is no merit to Edmond's argument that the judge considering Gary's emancipation was bound by the earlier decision emancipating Andrew because of the law of the case and of stare decisis. Law of the case relates to legal rulings in the same case and is permissive in nature while stare decisis involves the authenticity of legal precedents. Both are clearly inapplicable in this case.

Therefore, we remand for a plenary hearing and factfinding on the disputed issues of fact regarding Gary's emancipation, continuation of Edmond's child support obligation, and requiring Edmond to contribute to Gary's college education.

Reversed and remanded.

20080227

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