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Roder v. Roder

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 26, 2009

DONALD RODER, PLAINTIFF-APPELLANT,
v.
LINDA RODER, F/K/A LINDA TERRY, N/K/A ADRIAN MICHAEL ASHFORD, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-152-96C.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 5, 2009

Judges R. B. Coleman and Sabatino.

This unopposed appeal arises out of a dispute concerning the proper timing of the emancipation of a child. The pertinent facts and procedural history are as follows.

Appellant Donald Roder ("the father") and respondent Linda Roder ("the mother") were married in 1987. Shortly thereafter, the father adopted the mother's son from a previous marriage. The parties ultimately divorced in October 1997, entering by consent into a dual judgment. Among other things, the divorce judgment obligated the father to pay child support for the son through emancipation. Emancipation was specifically defined in the relevant provision of the judgment as:

the [later] of (i) the Child's reaching age [18] or (ii) the completion of [H]igh [S]chool; provided, however, that if the Child attends College on a full-time basis immediately following the completion of High School, then the Child's emancipation shall not be deemed to have occurred until the Child completes his or her full-time College study.

In July 2002, upon the son's graduation from high school, the father filed a motion to declare him emancipated. That motion was denied on August 26, 2002, evidently because the mother had submitted ex parte opposition to the judge, in which she represented that the son was going to be enrolled as a full-time college student for the fall 2002 semester. She filed her opposition on an ex parte basis because there is an active restraining order between her and the father.

The father continued to pay child support for the son through October 2003. At that point the father ceased making payments because he had received no proof that the son was actually attending college and had no contact with him.

Meanwhile, the Probation Department computed arrears for the father's non-payment, although the mother did not file any enforcement motions.

In March 2006, the father hired an attorney to subpoena records from Brookdale Community College, where the Probation Department, apparently based upon assertions by the mother, thought the son had been enrolled. The college responded to the subpoena by indicating that they had no record of the son ever being enrolled there, nor any student with the same Social Security number. The father also wrote Probation a letter requesting the identity of the college or institution that his son was supposedly attending. In a reply letter in August 2006, Probation advised the father that confidentiality concerns precluded it from releasing such personal information concerning his son. Probation suggested that the father's counsel attempt to ascertain the information from the mother.

Consequently, the father filed a new motion seeking to have the son emancipated, retroactive to the son's high school graduation in June 2002. The mother did not oppose that motion.

The Family Part consequently entered an order on December 15, 2006, declaring the son emancipated as of that date. This initially-chosen effective date was four years after the son had turned eighteen and also four years after the son presumably would have commenced any continuous four-year college program. The court did not reduce the arrears or award any retroactive relief to the father at that time. However, it did order the mother to "provide records and documentation" that the son had indeed "attended college on a full-time basis from fall 2002 through [s]pring 2006."

The mother failed to supply such documentation. As a result, the father once again moved for relief to adjust the son's emancipation date retroactively. This motion, which was again unopposed by the mother, was assigned to a different Family Part judge than the judge who had issued the order of December 15, 2006. The successor judge apparently was under the erroneous assumption that the father had never before moved to seek emancipation relief. The judge denied the father's motion on June 22, 2007.

The father renewed his efforts to obtain relief by filing a motion in March 2008, again seeking to have the son emancipated, effective June 30, 2002. As part of his motion, the father stressed that the mother had never provided the enrollment proofs required by the December 15, 2006 order. Once again the mother did not file opposition papers. The motion judge, the third successive judge in this matter, denied the father's application in an order dated April 25, 2008. The father now appeals that most recent order.*fn1 As we have already noted, the mother has not filed any opposition papers to the father's appeal.

N.J.S.A. 9:17B-3 provides that when a person reaches the age of eighteen, he or she is deemed an adult. A child's attainment of the age of eighteen creates a rebuttable presumption of his or her emancipation. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982); Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997). Parents ordinarily are not obligated to support their children after they have reached the age of majority. Weitzman v. Weitzman, 228 N.J. Super. 346, 356 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989). Generally, the question of emancipation hinges upon whether the children, once they have turned eighteen, are "beyond the sphere of influence" of their parents and have the ability and responsibility to support themselves as adults. Filippone, supra, 304 N.J. Super. at 308 (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)).

Here, at the time of their divorce the parties specifically negotiated a precise definition of "emancipation" within the terms of the divorce judgment. As we have already noted, that agreed-upon definition called for the son to be deemed emancipated upon his completion of high school, subject to a pertinent condition. That condition was "that if the child attends college on a full-time basis immediately following the completion of high school, then the child's emancipation shall not be deemed to have occurred until the child completes his or her full-time study." The court has been provided with no reason to alter the parties' agreement. See Lepis v. Lepis, 83 N.J. 139, 145-48 (1980) (noting that inter-spousal agreements are presumptively enforceable).

The record before us is bereft of any documentation that the son ever "attend[ed] college on a full-time basis immediately following the completion of high school," and, if so, whether he maintained such "full-time enrollment." We are satisfied that the father has undertaken reasonable diligence to ascertain, to no avail, whether his son ever attended college, including correspondence with Probation and a subpoena issued by his attorney. To date, the mother has apparently not complied with the court's specific directive in its December 15, 2006 order to produce such enrollment documentation.

Given these compelling circumstances, we find it appropriate to vacate the orders of June 22, 2007 and April 25, 2008, and to remand this matter for a plenary hearing on the discrete issue of whether the son attended college on a full-time basis after his high school graduation and, if so, the consistency and duration of that enrollment. If the mother fails to present at that hearing the documentation required to corroborate the son's enrollment, the Family Part shall issue an order declaring the son emancipated retroactively*fn2 as of June 30, 2002, with an appropriate adjustment of arrears. If, on the other hand, the mother produces enrollment documentation, then the trial court shall permit the father to contest that evidence, if he wishes to do so, at a hearing; thereafter, the court shall make appropriate factual findings and issue any further relief that may be warranted. The stay of the bench warrant shall remain in effect pending the remand hearing.

Vacated and remanded. We do not retain jurisdiction.


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