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Mislavsky v. Mislavsky

August 14, 2008

EDWARD MISLAVSKY, PLAINTIFF-APPELLANT,
v.
DONNA MISLAVSKY, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1297-00C.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 28, 2008

Before Judges Stern, A. A. Rodríguez and C. S. Fisher.

Plaintiff Edward Mislavsky (father), moved post-divorce judgment to declare two of his children emancipated. Donna Mislavsky (mother) opposed the motion. The judge denied the motion. Father appealed to us. In an unpublished opinion, we affirmed the order, but remanded on four "discrete issues." No. A-2640-02T3 (App. Div. August 20, 2004).

On remand, the judge issued a written opinion denying father relief on these four issues. Father attempted to appeal this order out of time. We denied this request. No. AM-261-06T5 (App. Div. Jan. 16, 2007). Father then moved "to modify [his] support obligation[s] and enforce litigant's rights." Mother cross-moved for enforcement of litigant's rights and other relief. The remand judge addressed the motions and issues, which were decided in mother's favor. Father moved for reconsideration, which was similarly denied after a hearing.

Father appealed. Mother moved to strike portions of father's appendix. We reserved decision on the motion pending consideration of the merits of the appeal. We now affirm on the issues decided after remand and deny the motion to strike portions of father's appendix.*fn1

The pertinent facts can be summarized as follows. The parties were divorced in 2002 after twenty-two years of marriage. The parties have three children. The oldest daughter is now emancipated. The other children are: Susan, age twenty-four; and Robert, now age twenty-one. Father is now fifty-two years old and mother is fifty-four years old. Both parties have since remarried.

The trial judge ordered child support of $264 per week for Robert, $30 per week combined for the oldest daughter and Susan (who were in college at the time), and $51.50 per week to cover the cost of health insurance for all three children.

Father has had a very strained and virtually non-existent relationship with the children for many years. The hostilities apparently began when father secretly taped a phone conversation between mother and her paramour while the parties were still married. Father then played the tape for Robert and Susan. According to father, he met with Robert (then a senior in high school) and Susan (who was then in college) in May 2005 to try to re-establish a relationship. Both children told him that they did not wish to have any contact with him.

Susan's college career took many turns. She started at West Chester University, transferred to Brookdale Community College, then transferred to Towson University, and then returned to Brookdale before going to Georgian Court College. According to mother, Susan was expected to graduate in May 2007, one year after the date of this motion. At the time of the motion, Susan was living with mother and attending college full- time. She worked "a few hours a week" baby-sitting and doing bookkeeping while in school.

Susan did not consult with her father about any of her academic plans or goals. According to the divorce judgment, mother had the responsibility to "provid[e] [father] with written notice of relevant developments regarding the children's college costs and progress."

Robert has attended the University of Maryland since 2005. He did not consult with his father about his academic plans. Pursuant to the divorce judgment, mother was required to "keep [father] advised as to Robert's college application and selection process[,]" which she did. According to mother, Robert has excelled in college. He lives on campus during the school year, but comes home for vacations and holidays. He was not employed while attending school.

On appeal, father argues:

THE TRIAL COURT ABUSED ITS DISCRETION AND/OR OTHERWISE ERRED IN ITS RULINGS PERTAINING TO THE EMANCIPATION OF THE PARTIES' CHILDREN.

We disagree.

Pursuant to N.J.S.A. 9:2-4, and Grotsky v. Grotsky, 58 N.J. 354, 356 (1971), parents are equally charged with their children's care, nurture, education and welfare. The duty to support continues until the child is emancipated. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). Age alone is not dispositive of emancipation. Bishop v. Bishop, 287 N.J. Super. 593, 597 (Ch. Div. 1995).

According to Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997):

Emancipation of a child is reached when the fundamental dependent relationship between parent and child is concluded, the parent relinquishes the right to custody and is relieved of the burden of support, and the child is no longer entitled to support. Emancipation may occur by reason of the child's marriage, by court order, or by reaching an appropriate age, and although there is a presumption of emancipation at age eighteen, that presumption is rebuttable. In the end the issue is always fact-sensitive and the 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."

Bishop, supra, 287 N.J. Super. at 598.

The determination of whether the child has moved beyond the parental sphere of influence "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 v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006). The "educational exception" to emancipation has become "well-established." Monmouth County Div. of Social Servs. v. C.R., 316 N.J. Super. 600, 616 (Ch. Div. 1998).

"It is basic that a case should not be decided merely on the basis of conflicting affidavits or an inadequate record." Wilke v. Culp, 196 N.J. Super. 487, 501 (App. Div. 1984) (internal citations omitted), certif. denied, 99 N.J. 243 (1985). However, a party must clearly demonstrate the existence of a genuine issue as to a material ...


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