May 4, 2010
JOHN R. COX AND PATRICIA M. COX, PLAINTIFFS-APPELLANTS,
VINCENZINA COX AND JOHN R. COX, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-1702-07-W.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 20, 2010
Before Judges Carchman and Lihotz.
Plaintiffs John R. Cox and Patricia M. Cox, the former parents-in-law of defendant Vincenzina Cox and the parents of her former husband, defendant, also named John R. Cox*fn1 , appeal from an order of the Family Part granting summary judgment to defendant and denying their cross-motion for the same relief. The dispute arose out of the termination provisions of an agreement between plaintiffs and defendant regarding the continued residence of the latter with her four children at a home owned by plaintiffs. Judge Millard concluded that the events causing termination of the agreement had not yet occurred, and defendant was entitled to remain on the premises. We agree with the judge's conclusion and affirm.
The material facts are not in significant dispute. Defendants resided in a home owned by plaintiffs. Appended to defendants' dual judgment of divorce was an agreement entered into between plaintiffs and defendants wherein Vincenzina was permitted to reside rent free with the four children born of the marriage. Three of the four children are now adults and only one of the four children is a minor, now aged 17.
The agreement states in relevant part:
. . . WHEREAS, [Plaintiffs] wish to provide a home for their grandchildren until the happening of any condition as set forth below . . . [Plaintiffs] . . . agree to allow [Defendant] to reside in the aforesaid premises with John, Maria, James and Casandra Cox, the minor grandchildren, . . . [until] the happening of any of the following events:
a) The remarriage of Vincenzina Cox.
b) Regular residence of Vincenzina Cox with any person other than the minor grandchildren.
c) The death of Vincenzina Cox.
d) A change in custody of more than two of the grandchildren.
e) The emancipation of all of the four minor grandchildren.
f) The death of both joint owners of the property.
Plaintiffs assert that since three of the children are now adults, subparagraph d) applies as there has been "a change in custody of more than two of the grandchildren" and the agreement is terminated. Defendant relies on subparagraph e) and claims that not all four of the children are yet emancipated so the agreement remains in effect until that event occurs.
Judge Millard concluded:
The pertinent portion of the agreement provided that Defendant shall reside in the marital home with the children until one of a number of enumerated events occurred including change in the custody of one or more than 2 of the children and/or emancipation of all four children. The Court is satisfied that there is no genuine issue of material fact to be addressed since custody of the children was not changed, and one child remains unemancipated.
Emancipation of children is not a change in custody. Clearly, that is why the agreement included separate provisions for termination of the living arrangement based on 1) change of custody, and 2) emancipation of all four children.
On appeal, plaintiffs concede that there is no issue of fact in dispute, that the agreement is unambiguous but urges that the judge erred in his interpretation of the agreement.
Both sides agree that the judge shall determine whether the agreement is unambiguous. Schor v. FMS Fin. Corp., 357 N.J. Super. 185, 191 (App. Div. 2002); Kaur v. Assured Lending Corp., 405 N.J. Super. 468, 474, (App. Div. 2009); Sealed Air Corp. v. Royal Indem. Co., 404 N.J. Super. 363, 375 (App. Div.), certif. denied, 196 N.J. 601 (2008); Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 190(App. Div.), certif. denied, 196 N.J. 85 (2008); Fastenberg v. Prudential Ins. Co. of Am., 309 N.J. Super. 415, 420 (App. Div. 1998).
Plaintiffs' argument is that emancipation and change in custody are synonymous. We disagree. Custody reflects the continuing control and authority over a child, N.J.S.A. 9:2-13, but a change in custody suggests that another custodian will assume this statutory responsibility. Emancipation reflects a circumstance wherein a parent is relieved of an obligation to maintain custodial responsibility for the child. Mahoney v. Pennell, 285 N.J. Super. 638,643 (App. Div. 1995) (finding a child is emancipated correlates with the termination of the right to parental support. Determining emancipation is a fact-sensitive issue and must be decided on a case by case basis); see also Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). Emancipation can occur upon the child's marriage, Leith v. Horgan, 24 N.J. Super. 516, 518 (App.Div.1953); emancipation can occur with induction into military service, Slep v. Slep, 43 N.J. Super. 538, 543 (Ch. Div. 1957); and upon child's attainment of an appropriate age, usually age eighteen establishes prima facie, but not conclusive, proof of emancipation, N.J. Div. of Youth & Family Serv. v. V, 154 N.J. Super. 531, 536-537 (J. & D.R.Ct.1977).
The language of the agreement in dispute recognized a difference between the two as subparagraph d) reflects the custodial adjustment while subparagraph e) reflects emancipation.
We are satisfied that Judge Millard's interpretation of the agreement reflected not only the clear and unambiguous language of the agreement but the intent of the parties at the time of execution of the agreement.