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Cardona v. Firanzi


June 11, 2008


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FD-11-1452-88.

Per curiam.


Argued telephonically on May 28, 2008

Before Judges Graves and Alvarez.

Defendant John Firanzi appeals from an order dated June 29, 2007, denying his "Motion to Reduce Support/Emancipate Child," and awarding plaintiff counsel fees in the amount of "$2,1015.15." The parties have one child: A.C. (fictitiously Alice), born February 9, 1988. On appeal, defendant contends the trial court's decision, which denied his motion to emancipate his daughter without an evidentiary hearing, and awarded counsel fees to plaintiff, was "arbitrary and capricious." Because there is ample credible evidence in the record to support the motion judge's order, we affirm except for the technical error in the order, which awarded counsel fees to plaintiff in the amount of "$2,1015.15."

In Dolce v. Dolce, 383 N.J. Super. 11, 17-18 (App. Div. 2006) (alterations in original), we summarized the law regarding emancipation:

Emancipation----the conclusion of the fundamental dependent relationship between parent and child----is not a self-executing principle. It does not occur, as suggested by the motion judge, automatically, by operation of law, simply by reason of the dependent child reaching the age of majority, now eighteen. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). Indeed, "emancipation need not occur at any particular age. . . ." Ibid.; see also Limpert v. Limpert, 119 N.J. Super. 438, 440 (App. Div. 1972). In fact, a rebuttable presumption against emancipation exists prior to attaining the age of eighteen. Newburgh, supra, 88 N.J. at 543; see also N.J.S.A. 9:17B-3. Correspondingly, reaching the age of majority establishes only "prima facie, but not conclusive, proof of emancipation." Newburgh, supra, 88 N.J. at 543 (citing Alford v. Somerset County Welfare Bd., 158 N.J. Super. 302, 310 (App. Div. 1978); Limpert, supra, 119 N.J. Super. at 440)).

The issue of "[w]hether a child is emancipated at age eighteen, with the correlative termination of the right to parental support," is fact-sensitive. Ibid. "[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)). This 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. Newburgh, supra, 88 N.J. at 545.

In this case, the record contains a letter from Dr. Richard N. Carroll, a psychologist, dated May 22, 2007, stating he diagnosed Alice with obsessive-compulsive disorder with symptoms of attention deficit disorder and specific phobia for germs and contamination. During oral argument before the Family Part judge on June 29, 2007, defendant's attorney did not dispute "that this child has issues with this fear of germs." Nevertheless, defendant's attorney argued that Alice was "only in tenth grade and staying where she is . . . due to her missing school."

This was not the first time that Judge Blackburn considered whether Alice was emancipated. In a prior order dated November 3, 2006, Judge Blackburn ruled Alice was not emancipated because she had "not moved beyond the sphere of the parents' influence."

Thus, Judge Blackburn was thoroughly familiar with the circumstances of the case, and her reasons for denying defendant's most recent emancipation application included the following:

[I]n this matter, this child has several diagnoses, disabilities.

She's been diagnosed with obsessive compulsive disorder, attention deficit disorder and specific phobia for germs and contamination. These were the [diagnoses] the last time you were here in November of last year.

There has not been a substantial change in circumstances that has been indicated to this [c]court why this [c]court should make another determination. . . . [T]his is still the same school year. It was determined the last time that the parties were before this [c]court that she has an anticipated date of graduation of June of 2009. . . .

I'm further going to require in this matter, as this is the same motion . . . that was denied in November, that Mr. Felsenfeld's counsel fees be paid in this matter. I have considered the Rule 5:3-5c, the nine factors that are relevant in this matter and I am going to grant counsel fees in this matter. So they now total $2,015.50.

MR. CAPRIGLIONE [DEFENDANT'S ATTORNEY]: Your Honor, with all respect, in accordance with this rule, my client doesn't have the ability to pay counsel fees. He's on disability, he's on a limited income. . . .

THE COURT: Well neither can she.

THE COURT: And she did not bring this motion when it was denied less than six months ago.

Our ability to review the emancipation issue has been somewhat hampered because neither party has provided us with a copy of plaintiff's opposition papers or her cross-motion for counsel fees. See Pressler, Current N.J. Court Rules, comment 1 on R. 2:6-1 (2008) ("Clearly, filed documents in the action bearing on the issues on appeal are required to be included in the appendix."). Nonetheless, from Alice's school records and the information provided by Dr. Carroll, it is clear that Alice "is classified with the Child Study Team and has a current Individualized Education Program" because of emotional and academic difficulties. Accordingly, we are convinced defendant's conclusionary claims were insufficient to warrant a plenary hearing, and we affirm substantially for the reasons stated by Judge Blackburn. Similarly, defendant failed to establish a prima facie case of changed circumstances to warrant modification of his child support obligation.

Defendant also challenges the award of counsel fees to plaintiff in the amount of "$2,1015.15." An award of counsel fees in matrimonial matters is discretionary. R. 4:42-9(a)(1); R. 5:3-5(c); Williams v. Williams, 59 N.J. 229, 233 (1971). "In determining whether a counsel fee should be imposed, the court must look at the requesting party's need, the other party's ability to pay, and the good and bad faith of each party." Boardman v. Boardman, 314 N.J. Super. 340, 349 (App. Div. 1998).

That is what happened here, and we find no abuse of discretion or reversible error. However, because counsel fees were awarded to plaintiff in the amount of $2,015.50, and the order erroneously awarded counsel fees in the amount of "$2,1015.15," the order needs to be corrected.

We therefore affirm the order of June 29, 2007, but remand solely for entry of a corrected order.


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