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Ward v. Ward

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 28, 2009

KATHLEEN WARD, PLAINTIFF-RESPONDENT,
v.
STEPHEN WARD, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, No. FM-13-634-93.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 18, 2008

Before Judges Wefing and Parker.

Defendant appeals from two post-judgment orders entered by the trial court. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The parties were divorced pursuant to a judgment of divorce entered on January 3, 1994. During their marriage, the parties had four daughters--Kara, Kristin, Jennifer and Stephanie. The parties' dispute revolves around the two younger girls, Jennifer and Stephanie, the older two having been emancipated for some period of time. At the time the parties returned to court in connection with this dispute, defendant was paying $1200 per month in child support for Jennifer and Stephanie, payable through probation.

On May 31, 2006, defendant filed a motion to emancipate both Jennifer and Stephanie. At the time defendant filed his motion, Jennifer was twenty-one years old. She was working part-time as a receptionist in a chiropractor's office and was not pursuing any further education. Stephanie was twenty years old and had completed course work in medical billing. Plaintiff opposed the application, contending that Jennifer had certain psychological disabilities which precluded her emancipation and that Stephanie wanted to continue with further schooling. Stephanie's efforts, however, at Brookdale Community College had not been notably successful.

The trial court conducted a hearing on January 17, 2007, at which plaintiff presented the testimony of Robert LoPresti, Ph.D., Jennifer's treating psychologist. He testified that Jennifer suffered from attention deficit disorder, anxiety, depression, insomnia and bereavement. This latter diagnosis was due to her having recently lost several friends in automobile accidents and the death of an uncle.

Plaintiff also testified at this hearing. She outlined the difficulties Stephanie had experienced at Brookdale. She had taken courses on a sporadic basis but had only a 2.2 grade point average. She also did some baby-sitting, but did not earn enough to support herself.

At the conclusion of the hearing defendant requested the opportunity to have both girls examined by his own expert, not with an eye to litigation but with the intent of providing assistance to them. Defendant's attorney made the following statement to the court.

I did speak with Mr. Ward. [I]f Your Honor would allow me, I would like to offer somewhat of a compromise to my client's motion. This is my client's motion. What my client, separating the daughters, with respect to Jennifer what my client would like to do is in the spirit of having to help Jennifer to the best of her ability what he would do, what he would like to do is withdraw that part of his application to emancipate Jennifer.

However, he would like to have that since he felt that listening to the testimony there has not been a complete record built as to maybe some of the causes to help Jennifer or with some of the causes of her problems, he'd like to hire a professional of his own and have her examined and see how he could jump in and help out with therapy, medication, whatever it is. Because it seems as if she needs help.

Following that hearing, the trial court entered an order on January 17, 2007, which noted that it was suspending its determination with respect to emancipation. It continued defendant's child support obligation for Jennifer, at the rate of $800 per month, and suspended child support for Stephanie.

The hearing resumed on August 1, 2007, and defendant presented Jeffrey Kargman, M.D., as a witness. Dr. Kargman is a psychiatrist, and he examined both young women. Dr. Kargman did not agree with the diagnoses that Dr. LoPresti had reached with respect to Jennifer. He found no signs of attention deficit disorder, anxiety, depression or insomnia. He did agree that she suffered from some bereavement as a result of the deaths of her friends and uncle. Dr. Kargman found no reason why either girl should not be emancipated.

By the time of this second hearing, Stephanie had returned to Brookdale and had enrolled in five more courses. She had failed one and withdrawn from another.

At the end of this hearing the trial court entered an order emancipating Jennifer, effective August 1, 2007. It also directed that probation would continue to collect child support for Stephanie, at the rate of $600 per month, but hold the funds in escrow to see if her academic performance in college improved. The court indicated that if her performance did not improve, the money held in escrow would be returned to defendant, but if it did, it would be released for Stephanie's continued support. The order of August 1, 2007, is the first order on appeal.

The parties returned to court in February 2008. By that time, Stephanie had relocated to California and was seeking to enroll in a two-year program to become a radiology technician. Defendant again sought her emancipation. The trial court entered an order on February 22, 2008, which denied defendant's application to emancipate Stephanie and to return to him the funds held in escrow by probation. It suspended the garnishment of defendant's salary and directed that all fees due as a result of her enrolling in the radiology technician program be paid. This is the second order on appeal.

A subsequent hearing was held in March 2008 at which the court set the amount of support to be paid by both parties, directly to Stephanie. This final order is not included in defendant's notice of appeal and is thus not before us.

On appeal, defendant raises the following arguments:

POINT ONE: STANDARD OF REVIEW AS TO MOTIONS TO EMANCIPATE

1) A trial court's decision to emancipate or not to emancipate a child is subject to an abuse of discretion standard of review.

2) The trial court's legal conclusions are not entitled to any deference.

POINT TWO: THE MOTION JUDGE ABUSED HIS DISCRETION WHEN HE PERMITTED RESPONDENT'S EXPERT TO TESTIFY SINCE THAT EXPERT FAILED TO PRODUCE AN EXPERT REPORT AND EVEN IF HE DID, WHEN HE TESTIFIED HE GROSSLY DEVIATED FROM THE REPORT THAT WAS GIVEN.

POINT THREE: THE MOTION JUDGE ABUSED HIS DISCRETION WHEN HE REFUSED TO FIX THE DATE EMANCIPATING JENNIFER WARD RETROACTIVE TO THE FILING OF THE MOTION TO EMANCIPATE, WHICH WAS FILED ON MAY 31, 2006.

POINT FOUR: EVEN IF THIS COURT FINDS THAT UNDER THE LAW CITED UNDER POINT HEADING THREE ABOVE THAT THE MOTION JUDGE DID NOT ABUSE HIS DISCRETION IN FIXING THE DATE OF JENNIFER WARD'S EMANCIPATION AS OF AUGUST 1, 2007, N.J.S.A. 2A:17-56.23A REQUIRED THE MOTION JUDGE TO HAVE AWARDED RELIEF RETROACTIVE TO THE DATE THAT APPELLANT FILED HIS MOTION WHICH WAS MAY 31, 2006.

POINT FIVE: THE TRIAL COURT ERRED WHEN IT FAILED TO FIND, ON TWO OCCASIONS, THAT STEPHANIE WARD WAS EMANCIPATED AND, IT IS SUBMITTED, THAT THE TRIAL COURT SHOULD HAVE SIMILARLY MADE SUCH A FINDING RETROACTIVE TO THE DATE APPELLANT FILED HIS ORIGINAL MOTION WHICH WAS MAY 31, 2006.

A) Stephanie should have been emancipated because she completed a technical school course for medical billing.

B) The motion judge abused his discretion by ignoring Stephanie's poor "scholastic aptitude" in considering whether or not to emancipate her.

C) The motion judge abused his discretion when he failed to emancipate Stephanie based on her Fall 2007 grades from Brookdale Community College.

D) Stephanie's relocation to California required that she be emancipated.

We reject defendant's arguments with respect to the date of emancipation of Jennifer. It overlooks the fact that during the initial hearing in January, defendant withdrew his request that Jennifer be emancipated after he heard Dr. LoPresti's testimony. Defendant cannot now take a different approach on appeal.

We also reject defendant's argument with respect to the testimony of Dr. LoPresti. Defendant did not express at the time of Dr. LoPresti's testimony that he considered himself hampered in his ability to cross-examine the witness. He sought the opportunity to retain his own expert, which the trial court granted. Plaintiff, moreover, contributed towards his expense of retaining Dr. Kargman.

Defendant contends that he was prejudiced by the continuation of this matter because it extended his child support obligation. This assertion, however, also overlooks the fact that defendant withdrew his request to emancipate Jennifer after hearing Dr. LoPresti's testimony. Defendant has not presented any basis which would justify reversing the order of August 1, 2007.

Similarly, we reject his contention that the trial court erred when it declined at several points to emancipate Stephanie. Defendant contends that the trial court abused its discretion when it did not declare her emancipated. He maintains that she should have been declared emancipated upon her completion of her course in medical billing and that permitting her to return to school created an "open-ended" burden on him. This argument disregards the clear language of the trial court, that defendant's obligation was contingent upon her performance in this second school and would extend no further than its two-year program.

He also argues that the trial court should have declared Stephanie emancipated based upon her past poor academic performance. We find this argument to be wholly inconsistent with defendant's statements to the trial court that he had assured Stephanie that he would pay her tuition for her training as a radiology technician.

He also contends that Stephanie should have been emancipated based upon her decision to relocate to California. That a child attends school out of state is not a legal basis for emancipation, however.

We are satisfied the trial court did not abuse its discretion. "The determination of emancipation is a fact-sensitive inquiry that '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.'"

Tretola v. Tretola, 389 N.J. Super. 15, 21 (App. Div. 2006) (quoting Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006)). Moreover, "given the inherent equitable powers of the Family Part, [child support] 'may be revised and altered by the court from time to time as circumstances may require[.]'"

Dolce, supra, 383 N.J. Super. at 18 (quoting N.J.S.A. 2A:34-23).

The orders under review are affirmed.

20090128

© 1992-2009 VersusLaw Inc.



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