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Presper v. Presper

May 21, 2010

JULIA E. PRESPER, N/K/A BELLINO, PLAINTIFF-RESPONDENT,
v.
JOHN A. PRESPER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Middlesex County, Docket No. FM-12-1633-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: May 5, 2010

Before Judges Axelrad and Espinosa.

Defendant John Presper appeals from the Family Part's October l3, 2008 order denying his request to emancipate his then twenty-year-old daughter. We reverse and remand.

A dual judgment of divorce was entered on November 16, 2004, incorporating the terms of a property settlement agreement (PSA). The PSA provides for plaintiff to be the residential custodial parent of the parties' two daughters and for defendant to pay child support for the minor children until they are emancipated, defined by the parties, in pertinent part, as follows:*fn1

An emancipation event shall be deemed to occur upon the first happening of the following:

a) Completion of High School, if the child does not attend college within one (l) year; provided, however, the child has attained the age of eighteen years. In the event the child attends college, emancipation shall not occur until after the child has completed an undergraduate college education, so long as the child pursues college education on a full time matriculated basis continuously unless the child does not attend continuously due to injury or illness of the child.

b) Engaging by the child in full-time employment, except that engaging by the child in full time employment during school vacation and summer periods shall not be deemed an emancipation event.

c) Marriage of the child even though such marriage may be void or voidable and despite any annulment thereof.

On July 2, 2008, defendant filed a motion to emancipate his older daughter, born in l988. The parties provided certifications and, at the direction of the court following oral argument on August 29, 2008, one was provided by the parties' daughter.*fn2 Defendant certified that the parties' divorce was contentious and he "had absolutely no contact or communication of any kind" for the last two years with plaintiff or the children, despite correspondence to plaintiff in November 2007 requesting documentation regarding their daughter's school enrollment. Their daughter graduated high school in 2006 and attended Middlesex County Community College for the 2006-2007 school year. Plaintiff confirmed that their daughter became a full-time employee at Princeton Sports Club in the summer of 2007, and worked there through June l5, 2008. According to plaintiff, their daughter worked full-time during the day and attended evening classes at Raritan Valley Community College in the fall of 2007, but took a temporary leave for the spring 2008 semester. Plaintiff represented that their daughter would be returning to Middlesex County Community College in the fall of 2008, and taking classes during the day, and provided a copy of her registration. Plaintiff certified that their daughter "realized that working hindered her ability to study and she wants to diligently pursue a college education."

In reply certifications, defendant stated he ascertained that their daughter dropped a class and had only three classes (nine credits) for the fall 2007 semester, and was of the belief she became pregnant and had a child in early September, and her boyfriend, who was earning in excess of $40,000, was living with her at plaintiff's house. Their daughter acknowledged that although she enrolled as a full-time student at Raritan Valley Community College in the fall of 2007, she was dropped from one class due to "lack of participation," leaving her two night classes and one on-line class. She claimed she did not attend college for the spring 2008 semester because the college would not let her enroll for classes due to her inability to pay the final installment of $389.63 for the fall 2007 tuition, which she requested from defendant without success. She expressed a desire to continue to attend college. Neither plaintiff nor the parties' daughter responded to defendant's allegation respecting the pregnancy or employment and residential status of her boyfriend.

The court denied defendant's request to emancipate his daughter. The judge concluded she was enrolled as a full-time student for the fall 2007 semester, apparently because the college did not treat her dismissal from the Nutrition class as a failure for her GPA and still charged her for the course, even though she admitted she was dropped from the course "6 to 7 weeks into the Fall semester" for not attending. In addition, the judge appears to have blamed defendant, at least in part, for her withdrawal for the spring 2008 semester, even though defendant may have been under the impression he was not obligated to contribute towards Raritan Valley Community College tuition based on the February l6, 2007 order that absolved him from liability for the Middlesex County College tuition, apparently under the Newburgh v. Arrigo*fn3 rationale. The judge found that her re-enrollment for the fall 2008 semester "evidences her intent to continuously pursue her undergraduate education," and thus concluded she was not emancipated, which the judge determined under the parties' PSA to mean a year or more hiatus. The judge's analysis of emancipation under the parties' PSA is silent as to the daughter's continuous full-time employment, well beyond the incidental summer and school vacations carved out by the parties.

On appeal, defendant argues: (1) the court erroneously determined emancipation was not warranted by failing to properly consider that the parties' daughter was employed on a full-time basis, which was one of many conditions triggering emancipation under the PSA; (2) her enrollment status for the fall 2007 semester is still an issue of material fact that warrants further proof or a plenary hearing; and (3) emancipation is warranted as she moved beyond the "sphere of influence" of her parents by foregoing ...


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