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Sisto v. Sisto


February 8, 2010


On appeal from Superior Court of New Jersey, Camden County, Chancery Division, Family Part, Docket No. FM-04-836-03.

Per curiam.


Submitted December 1, 2009

Before Judges Fuentes and Simonelli.

Defendant Carolyn M. Sisto and plaintiff Frank T. Sisto married on November 28, 1981. They had five children; only one had been declared emancipated by the time this matter came before the court. On April 8, 2004, the Family Part issued a final judgment of divorce (JOD) dissolving the marriage.

This appeal originates from the adjudication of plaintiff's post-judgment motion seeking to enforce and modify certain provisions under the JOD relating to the emancipation of the parties' children, adjustment of the parties' child support obligations, and reimbursement for payments made for the children's dental care. After reviewing the record before us, we affirm in part and remand for the trial court to make the findings necessary to support the court's selection of a specific date of emancipation for two of the parties' children.


The JOD established the children's custodial arrangements and determined plaintiff's support obligation. Plaintiff was the primary residential parent for Tom,*fn1 born in March 1984, and defendant was the primary residential parent for Charlotte, born in August 1986, Charles, born in December 1987, and Carina, born in January 1990.*fn2 Because the oldest child was emancipated at the time of the divorce, he plays no role in this controversy.

The JOD fixed plaintiff's child support obligation at $210 per week, payable by wage execution through the Camden County Probation Department. This figure was later increased to $242 to reflect a cost of living adjustment. Plaintiff received a $59 credit for Tom's weekly expenses. Plaintiff also agreed to pay all college expenses for the boys, Tom and Charles, while defendant agreed to pay the same expenses for the two girls, Charlotte and Carina. The JOD additionally directed defendant to pay for one-half of the children's unreimbursed medical expenses in excess of $250 per year.

Tom graduated from Drexel University in September 2007 and obtained full-time employment in January 2008. Charlotte graduated from Rowan University in May 2008 and does not reside with either parent. Charles attends Rutgers University and lives on campus, returning to his mother's house during the holidays and summer breaks. Carina attends Rowan University and continues to reside at home with defendant. Both Charles and Carina work part-time; they earn approximately $2500 and $4000 per year respectively. Plaintiff earns approximately $80,000 per year; defendant's annual salary is approximately half of plaintiff's salary, or $40,000.

Against these facts, plaintiff moved before the Family Part to modify his support obligations by declaring Tom and Charlotte emancipated and to reduce his child support payments for Charles and Carina, both retroactive to the filing date of the motion.

Defendant cross-moved, seeking to have the court deem Tom emancipated as of his college graduation date, a recalculation of the support obligation triggered thereby, and a new determination of plaintiff's support obligations for Charles and Carina.

After considering counsel's arguments, the court granted plaintiff's motion and declared Tom emancipated as of January 1, 2008, entitling defendant to a $1829 child support credit. The court also declared Charlotte emancipated as of May 16, 2008, entitling plaintiff to a $1404 child support credit. Finally, the court directed plaintiff to reimburse defendant for certain dental care expenses for the children.


On the question of emancipation, the parties only dispute the operative dates of when the emancipations occurred. Defendant argues that the motion judge erred in declaring Tom emancipated as of January 1, 2008, instead of on his college graduation date. Plaintiff argues that the court correctly determined the date of Tom's emancipation based on the approximate date that he gained full-time employment.

The trial court made the following ruling on the return date of defendant's motion:

The Court [has] considered [the] argument[s], and I've certainly reviewed the submitt[ed] papers, the moving party's papers, as well as opposition. I'm certainly in-tune with both arguments that . . . [were] made by both sides.

The Court finds that the appropriate date for the emancipation of both parties would be the date of the filing of this motion.

The Court finds that, in essence, that Mrs. Sisto did somewhat sit on her rights. She's certainly aware of the date of the graduation, she attended the graduation.

Mrs. Sisto - based on what was presented to this Court, Mrs. Sisto was present for [Tom's] graduation, she [has] a relationship with her son. A motion could have been filed for emancipation back in September of '07 or October of '07 after the exit interview, and that was not filed.

The Court finds that based on that information, the Court is going to grant the motion for emancipation of [Tom] and [Charlotte], but it will be from the date of the actual filing of this motion.

[(Emphasis added.)]

Later in the course of the hearing, defense counsel brought to the court's attention that defendant had not, in fact, attended Tom's graduation. Despite this initial misunderstanding, the motion judge reaffirmed her earlier decision, stating:

The Court takes that under advisement and the Court still makes the finding as previously made. That certainly from December of '07 up until September of '08, that, certainly, Mrs. Sisto was on notice that her son graduated. She certainly had convinced this Court . . . [t]hat she has a relationship with her children, and that she knows what's happening in their lives. So for the reason stated before, the Court, again, is going to emancipate those two parties and it will be from the date of the filing of this motion.

Defendant thereafter moved for reconsideration. Based on the argument presented by counsel, the trial court modified its earlier decision as follows:*fn3

In fairness, this is what the Court is going to do. I'm going to make [the emancipation] retroactive from January of '08, but [plaintiff is] only going to be responsible for paying half of what he would owe up until the date of the file -- of -- of what would it be, up until September?

Because, as I stated numerous times, I'm --I'm very satisfied that [Mrs.] Sisto sat on her rights. That she was totally aware of the emancipation of [Tom] based on the language she used by her own attorney, but she did nothing to come into this court to seek that -- you know, for that relief.

What's being alleged -- and I'm actually being somewhat generous because, again, your client did nothing. And then they - - your client came before this Court seeking relief when there was evidence that she had knowledge that this child was emancipated.

So the Court is [going] to be fair to both parties and give some type of relief.

But what this Court is saying, Counsel, in all fairness, I think that there should be some credit, but the credit is not going to go for the entire time of the [year] 2008 - I don't know what the numbers are. I'm going to grant some credit to the defendant just out of -- on equity -- on equitable principles is why I'm going to do it.

It's not going to be for the entire time, and I'm basing my decision based on [Mahoney v. Pennell, 285 N.J. Super. 638 (App. Div. 1995)], which also cites the Thorson v. Thorson [241 N.J. Super. 10 (Ch. Div. 1989)] decision.

It appears to this Court that it's the intent to no longer require an obligation of support when that child becomes emancipated. And I do note I had this child emancipated -- young adult, rather at the -- as of the date of the filing of the motion. But on principles of fairness, this Court is going to grant a date where both parties will be made -- hold together. . . .

I certainly -- I certainly, ma'am, I'm changing my date of emancipation from the filing of the date of the motion for [Tom], back to the date of January the 1st of '08.

And, likewise, the date that [Charlotte] would have been emancipated would have been when she graduated from college.

I'm going to give a credit, also, to the plaintiff, in fairness to both sides.

The emancipation of a child does not automatically occur at any specific age, but rather, is a fact sensitive inquiry. Dolce v. Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006); Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995).

The essential question "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)). In making this determination a court must engage in "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, supra, 383 N.J. Super. at 18 (relying on Newburgh v. Arrigo, 88 N.J. 529, 545 (1982)).

The decision to emancipate a minor child from his or her parents necessarily involves a Family Court's inherent equitable powers. See Dolce, supra, 383 N.J. Super. at 18. As a result, the Appellate Division reviews a trial court's decision regarding the emancipation of a child under an abuse of discretion standard. See Sears Mortgage Corp. v. Rose, 134 N.J. 326, 354 (1993).

Further, judges must make findings of fact on motions decided by written order. R. 1:7-4. This requires judges to articulate "specific findings of fact and conclusions of law." Pressler, Current N.J. Court Rules, comment on R. 1:7-4 (2010). "Naked conclusions do not satisfy the purpose of R. 1:7-4[,]" instead clear factual findings must be made to support the legal conclusions reached. Kas Oriental Rugs, Inc. v. Ellman, 407 N.J. Super. 538, 561 (App. Div.), certif. denied, 200 N.J. 476 (2009); Curtis v. Finneran, 83 N.J. 563, 570 (1980). If sufficiently clear factual findings are absent from the record, an appellate court will remand to the trial court for additional findings. See Curtis, supra, 83 N.J. at 571.

We start our analysis by emphasizing that both sides agree that Tom and Charlotte should have been declared emancipated.

The only issue in dispute is the date that such emancipation occurred. In fixing January 1, 2008, as the date of Tom's emancipation, the court attempted to strike a balance between the date of Tom's graduation, as argued by defendant, and the approximate time he became self-sufficient, as argued by plaintiff. Although such an approach seems reasonable, the court's selection of January 1, 2008, must still be based upon some evidence in the record. Absent specific findings, we are left to speculate as to the reasons the court had for the particular selection or we are forced to conclude that the date was chosen arbitrarily. Neither option is acceptable.

In deciding a motion, the trial court should strive to recite its findings in a concise and readily identifiable manner. Random statements sprawled throughout a contentious hearing, with constant interruptions from counsel and the litigants, impedes our appellate review and makes the trial court's rulings needlessly opaque and seemingly incoherent. We thus remand the matter for the trial court to make specific findings supporting the date of Tom's emancipation. See R. 1:7- 4.


Defendant argues that the trial court did not properly consider all of the factors outlined in N.J.S.A. 2A:34-23(a) when it adjusted plaintiff's child support payments for Charles and Carina, the two children still residing with defendant. We disagree.

The trial court gave the following explanation for its decision to reduce the child support obligation for these two children:

The Court [has] considered [the] submissions made by both parties and I find that these submissions were - actually are not that off. When the Court looks at [Charles'] needs, and I certainly considered the statute [N.J.S.A.] 2A:34-23, it talked about the needs of the child, and that's why this Court wanted counsel to provide what the needs are on a monthly basis for [Charles].

The Court certainly considered all of the factors that [are] listed here. The Court also notes . . . the income of the parents, [that] I have inquired about.

The Court also considers the income, and assets, and earning ability of the child, the responsibility of the parents for any other court orders from which it was agreed upon that Mr. Sisto will provide for the education of [Charles] and that Mrs. Sisto would provide for the education of [Carina].

The Court makes the following findings: Looking at Mr. Sisto's submissions at [$]451 a month for what it would cost for -- I'm sorry.

I'm looking at [Mrs.] Sisto's -- for what it would cost for [Charles].*fn4 And the Court is actually being generous even considering the cost of you going up to school to visit him because that's a choice that you're making to go to visit your child and that's something that you should bear.

With that in mind, the Court is going to order that child support for [Charles], since he's away at school nine months out of the year, his summer expenses [are] $451, the Court [is] going to grant $25 a week for child support there.

As to [Carina] -- and the Court makes that finding based on [Charles] making [$]2,500 during the summer months.

The Court finds that [Charles] should contribute to the cost of his food, the cost of his clothing. He certainly should assist in the cost of his cell phone with the money that he makes during the summer. The Court's aware that Mrs. Sisto would like [him] to save his money so that he could purchase a vehicle, but the Court finds that a vehicle is not a necessity in this matter for the upkeep of [Charles]; and, pursuant to the statute, certainly he is earning his earning ability; what he is earning, his income, his assets, certainly is one of the factors to be considered.

As far as [Carina], the Court has certainly looked at, again, what [Mrs.] Sisto presents -- represents to the Court as far as what it costs yearly as well as what it costs monthly for her. And it's because she does live in that household with [Mrs.] Sisto.*fn5

The Court [has] considered the factors in [N.J.S.A.] 2A:34-23. The Court [has] considered her income of $4,000. Again, this Court finds that she should be made responsible to provide for part of her food, certainly her entertainment at [$]100 a month, certainly her hair care, and the other requirements for her upkeep. The Court is going to order $75 a week for the care of [Carina].

So the child support will be reduced to $100 a week, which will be for both parties, [Carina], as well as, [Charles].

We review these findings in light of the following legal standards. N.J.S.A. 2A:34-23(a) requires a court to consider the following factors in determining the amount of child support to be paid by the supporting parent:

(1) Needs of the child;

(2) Standard of living and economic circumstances of each parent;

(3) All sources of income and assets of each parent;

(4) Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment;

(5) Need and capacity of the child for education, including higher education;

(6) Age and health of the child and each parent;

(7) Income, assets and earning ability of the child;

(8) Responsibility of the parents for the court-ordered support of others;

(9) Reasonable debts and liabilities of each child and parent; and

(10) Any other factors the court may deem relevant.

We review the court's award of support under an abuse of discretion standard. We will thus not disturb a court's award of support unless it is "manifestly unreasonable, arbitrary, or clearly contrary to reason or to the evidence, or the result of whim or caprice." Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008); Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999).

Against this standard of review, we find no basis to overturn the court's award of $100 per week for the two children. In reaching her decision, the motion judge specifically considered several of the statutory factors in N.J.S.A. 2A:34-23(a). The Judge reviewed the monthly expenses of the children, the household maintenance expenses, both children's income from their part-time employment, and both parties' current income.


Under the JOD, plaintiff is required to pay one half of the children's outstanding dental bills over $250 which are not covered by insurance. In this context, we next consider defendant's argument challenging the court's ruling allocating dental expenses incurred by the children.

The dental bills at issue totaled approximately $1600; defendant claims that plaintiff is responsible for $672.50.

Plaintiff argues that the trial court properly ordered him to pay the outstanding bills pending proof that the insurance company will not cover the disputed expenses. Toward that end, the court directed the children to execute the appropriate releases and authorizations to permit plaintiff to communicate directly with the insurance company. According to plaintiff, releases, completed and signed by the children, have not been returned to him.

The trial court ordered plaintiff to pay $672.50 for the outstanding dental bills within thirty days of the hearing "if it is determined that the amount is not covered by insurance." The court modified the order at a later point to allow plaintiff access to the children's dental insurance records in order to determine what, if any, charges remained outstanding.

Based on these facts, we discern no basis to interfere with, or otherwise reverse, the trial court's ruling. See Dolce, supra, 383 N.J. Super. at 19 (recognizing the inherent equitable powers of the Family Part). Defendant has not shown an abuse of discretion by the trial court.


The remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). The judgment of the trial court fixing the dates of emancipation for the children identified here as Tom and Charlotte is remanded for the court to make the necessary findings consistent with its opinion. The balance of the court's judgment as discussed herein is affirmed. We do not retain jurisdiction.

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