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Schambach v. Schambach

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 1, 2010

BARBARA SCHAMBACH, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
RICHARD SCHAMBACH, DEFENDANT-RESPONDENT/CROSS-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-450-02C.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 9, 2010

Before Judges Carchman, Parrillo and Ashrafi.

Plaintiff Barbara Schambach appeals, and defendant Richard Schambach cross-appeals from a post-judgment order of the Family Part terminating defendant's obligation to make alimony payments but continuing his obligation to pay child support, including contributions to the parties' daughter's post-graduate education. We reverse and remand for a plenary hearing as to these issues.

These are the relevant facts. Plaintiff and defendant were married in July 1986, and have one child, Jessica Ann, born September 8, 1986. The complaint for divorce was filed in August 2001 when Jessica was still in high school. Prior to trial, the parties resolved a number of extant issues including the funding of Jessica's anticipated college and post-graduate education. They entered into a consent order of September 11, 2002, which provided that

[w]ith regard to college expenses, it is acknowledged that there is a college fund for Jessica in the amount of $100,000.00. The wife shall continue as trustee for Jessica and to administer and account for the funds upon consultation between the parties. Sixty five percent of the fund balance as of the date Jessica graduates from high school shall be applied to her undergraduate college expenses [].... Jessica will be obligated, upon expiration of the 65% of funds applicable to her colleges expenses, to apply for college related financial aid and she shall accept a maximum $5,000.00 per year student loan as her personal contribution towards the aforementioned college expenses. When the fund has reduced by 50%, the parties will, within thirty days, exchange formal Case Information Statements, prior two year taX returns and proof of year-to-date income and shall within sixty days thereafter, negotiate the issue of college contributions by the parties to Jessica's additional college expenses for undergraduate studies.

Any shortfall for college will be an obligation of the parties until Jessica obtains her undergraduate degree.

Contributions by the parties (beyond the 35% of the fund) are voluntary only. It is anticipated that 35% of the trust fund shall be applied to Jessica's post graduate expenses....

The order specifically reserved the issue of alimony for trial.

On December 11, 2002, the Family Part entered a final judgment of divorce, incorporating the parties' consent order. Concerning alimony and child support, the judgment ordered defendant to pay plaintiff $150 weekly in alimony and $162 weekly in child support. The judge arrived at this amount by concluding that defendant had the ability to earn $73,000 per year, and plaintiff $44,100 per year.

Jessica matriculated at Brandeis University in 2004 and by her graduation in 2008, had incurred a total of $124,711.52 in college expenses. Jessica had obtained $23,125.00 in student loans, leaving a balance of $101,586.52 to be born by the Fund and the parties. Plaintiff used the entire $100,000 in the Fund to pay for Jessica's undergraduate expenses, despite the contrary provision in the 2002 consent order. According to plaintiff, she obtained defendant's consent to use the entire Fund for that purpose.

Following graduation from Brandeis, Jessica matriculated at Brooklyn Law School in August 2008. The calculated total expenses for the six semesters required for graduation was $127,050 or $21,175 per semester. Jessica obtained student loans in the amount of $15,197.50 per semester, leaving her to defray the balance of $5,977.50 per semester.

In September 2008, defendant moved to terminate child support; the motion was denied without prejudice. That was followed by a second motion in November 2008 to vacate child support and alimony payments. Plaintiff filed a cross-motion seeking to compel defendant to repay his share of Jessica's college student loans and contribute to Jessica's law school tuition.

At argument on the motions, defendant asserted that Jessica is emancipated, that he never agreed to pay for law school and that plaintiff failed to account for distribution of the monies in the Fund. He further claimed that his obligation to pay for child support and to contribute to Jessica's law school expenses had terminated. On the issue of alimony, defendant argued that plaintiff now earns more money than defendant, constituting a sufficient change in circumstances warranting termination of his alimony obligation.

The judge entered a March 11, 2009 order, requiring defendant to reimburse plaintiff for forty-one percent of the $11,562.50 due on Jessica's college loan and contribute the same percentage for her law school tuition and related expenses. This was premised on the judge's determination that defendant had failed to "demonstrate[] changed circumstances that would warrant a termination in his child support obligation....

[D]efendant does have a legal duty to pay child support because he has not proven that his daughter is emancipated. It is the demonstrable needs of the child, not the age of the child, that is determinative of the duty to support." The judge was also persuaded that the parties contemplated, as early as 2002, that Jessica would attend post-graduate school. As plaintiff provided evidence that Jessica had exhausted all means of financing law school through loans, defendant and plaintiff were obligated to bear the balance. The judge used the child support guidelines to determine the ratio of contribution and determined, from the parties' recent paystubs, that plaintiff had a weekly net taxable income of $1248 and defendant $877, which obligated plaintiff to contribute fifty-nine percent of the total income and defendant forty-one percent. This calculation was used solely for the purpose of apportioning college and law school expenses and did not affect the ongoing child support amount which was set to continue as originally calculated in 2002.

On the issue of alimony, the judge determined that the 2002 calculations were premised on defendant's then yearly income of $73,000 and plaintiff's of $44,100. The judge found that while defendant's income had not substantially changed since 2002, plaintiff's income had been enhanced with income received from bonds she inherited from her mother, yielding $79,289 in aggregate yearly income. The judge concluded that defendant had demonstrated that plaintiff was now earning more than defendant, plaintiff's 2007 income of $79,289 compared to his 2007 income of $71,322, thereby eliminating plaintiff's entitlement to alimony, and granted this portion of defendant's motion.

Included in the analysis was a reference to $17,642 in interest income received by plaintiff, which increased her income to $76,530. According to plaintiff, the interest income reflects interest from inherited bonds that were cashed in and is not an annual income source. Plaintiff inherited an apartment in New York City that was valued, without any significant substantiation, at $500,000 and was apparently utilized by Jessica while attending law school.

No counsel fees were awarded.

On appeal, plaintiff asserts that the judge erred by failing to conduct a plenary hearing or make the requisite findings to establish a change of circumstances so as to warrant termination of alimony. In addition, plaintiff claims that the loan repayment was inaccurate and challenges the apportionment, and finally, that the judge erred in denying counsel fees.

On his cross-appeal, defendant challenges that portion of the order obligating him to contribute to Jessica's law school tuition and expenses.

Alimony and child support orders are subject to modification upon a showing of "changed circumstances." Lepis v. Lepis, 83 N.J. 139, 152 (1980). A party seeking modification of a support order bears the burden of demonstrating changed circumstances. Dorfman v. Dorfman, 315 N.J. Super. 511, 515 (App. Div. 1998) (citing Lepis, supra, 83 N.J. at 157-59). See also Isaacson v. Isaacson, 348 N.J. Super. 560, 579 (App. Div.), certif. denied, 174 N.J. 364 (2002). We will not modify a support award where the changed circumstances are merely temporary. Lepis, supra, 83 N.J. at 151; Bonanno v. Bonanno, 4 N.J. 268, 275 (1950).

Where there are significant issues in dispute, an application to modify support and other relief requires a plenary hearing. See Dorfman, supra, 315 N.J. Super. at 515 ("A plenary hearing may be necessary to adjudicate the matter if there are genuine issues of material fact."); Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. 1968); Mackowski v. Mackowski, 317 N.J. Super. 8, 11 (1998). As we note in our opinion, there were substantial factual disputes that require further inquiry and cannot be resolved on the motion papers.

While plaintiff argues that the judge failed to properly assess and consider plaintiff's personal expenses, see Crews v. Crews, 164 N.J. 11, 25 (2000), we consider a more basic flaw in the analysis warranting further inquiry.

In concluding that plaintiff's income equaled or exceeded defendant's income, the judge included both earned and unearned income. That standing alone is not error, except plaintiff claimed that her unearned income was not recurrent and resulted from bonds that she inherited and then cashed. This was not fully explored at the proceedings below and in fact, defendant questioned why the bonds were cashed. If in fact, the interest income was non-recurrent, its utility as an income source warranting termination of alimony is questionable. See Heller-Loren v. Apuzzio, 371 N.J. Super. 518, 527 (2004) (stating that gross income for the purposes of alimony calculation includes only that income which is recurring or will increase the income available to the recipient over an extended period of time).

In addition, in assessing the expenses of the parties and measuring these expenses against the standard of living of the parties, see Crews, supra, 164 N.J. at 25, as well as in considering any increase in plaintiff's income, the judge failed to engage in the analysis mandated by Glass v. Glass, 366 N.J. Super. 357, 370 (App. Div.), certif. denied, 180 N.J. 354 (2004). In Glass, we recognized that increases in income by the recipient of alimony will not, standing alone, warrant termination or reduction of alimony. We said:

[T]he standard of living experienced during the marriage... serves as the touchstone for the initial alimony award and for adjudicating later motions for modification of the alimony award when 'changed circumstances' are asserted. The standard of living during the marriage is the way the couple actually lived, whether they resorted to borrowing and parental support, or if they limited themselves to their earned income.

... where the marital standard has not been established, a judge addressing a modification application must make such determination....

Lastly, we have recognized that the modification of agreements based on changed circumstances applies not only to a significant diminution of resources of the supporting spouse that impairs that spouse's ability to meet his or her support obligations, but to "a significant change for the better in the circumstances of the dependent spouse," that may obviate the need for continued support. This is the framework within which we consider the propriety of the trial judge's decision to terminate alimony.

In his assessment of the evidence before him, the judge determined that the parties lived a "frugal" if, nevertheless, "middle class" lifestyle. He determined that plaintiff was able to support her lifestyle from her earnings and was able to allocate a portion of her earnings combined with her support to create a "safety net," or savings component, unlike during the marriage. In tallying defendant's modest expenses and comparing it with her total earned and support income, the judge, with some accounting justification, concluded that in essence the "numbers" did not support a finding of need and terminated support.

The "numbers" inquiry and analysis was too narrow and limited. Here, related principles become relevant.... [T]he marital standard of living is the "touchstone" of a change of circumstances application, but other considerations are similarly compelling. The agreement between the parties--the contract upon dissolution--is entitled to significant consideration. "[T]there is a strong public policy favoring stability of consensual arrangements for support in matrimonial matters...." A judge's determination must be based not only on numbers, but also on "'what, in light of all the facts presented to it, is equitable and fair, giving due weight to the strong public policy favoring stability of arrangements.'" [Id. at 370-72. (internal citations and quotation marks omitted). ]

Here, if it is found that the unearned income is non-recurrent, plaintiff's increases in income may be offset by similar appropriate increases in expenses warranting the continuation of alimony. We offer no definitive view of the issue except to note that this, too, requires a hearing to fully explore and determine the relevant facts related to this issue.

Similarly, we conclude that the issue of plaintiff's inherited apartment requires further discussion. A figure of $500,000 was suggested without any meaningful inquiry, and additionally, it was suggested that the apartment could be rented and generate income. Moreover, according to plaintiff, Jessica is residing in the apartment while attending law school. The issues attendant to the apartment should also be explored at the plenary hearing.

The hearing must also address the issue of defendant's responsibility for contributing to Jessica's law school expenses. In this regard, we need not explore or decide whether a child is entitled to pursue graduate school and whether the parents are obligated to provide a contributing share absent a parent's consent. See Ross v. Ross, 167 N.J. Super. 441, 445-46 (Ch. Div. 1979). We note that the parties entered into a consent order regarding the issue of college and graduate school expenses. At the hearing, the judge must determine whether the agreement setting forth both the allocation for college expenses and then graduate expenses was an agreement by the parties that Jessica would attend graduate school and that the parties would contribute to the cost of that education. So, too, in considering this question, the judge may assess the intention and contemplation of the parties in regard to the allocation and the subsequent application of the entire fund to Jessica's undergraduate education. If such obligation exists, the judge must determine the relative obligations of the parties and may consider among other things, whether the use of the apartment by Jessica represents a contribution in kind by plaintiff to the cost of law school. Of course, if such a finding is made, then the rental value of the apartment must be allocated to plaintiff's income. Again, we simply raise the issues involved and leave to the hearing, the issue of whether an obligation exists and the implications of such a finding.

We add one additional comment regarding the hearing on remand. At the hearing, the judge must consider whether Jessica is emancipated. As we have noted in Filippone v. Lee, 304 N.J. Super. 301 (App. Div. 1997),

"[e]mancipation of a child is reached when the fundamental dependent relationship between parent and child is concluded, the parent relinquishes the right to custody and is relieved of the burden of support, and the child is no longer entitled to support.

Emancipation may occur by reason of the child's marriage, by court order, or by reaching an appropriate age, and although there is a presumption of emancipation at age eighteen, that presumption is rebuttable. In the end the issue is always fact-sensitive and the essential inquiry 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." [Id. at 308 (emphasis added and citations omitted).]

We disagree with our colleague that the issues of emancipation or child support are resolved on this record. We are not satisfied that the record before us provides sufficient information or findings to support the conclusion that Jessica is or is not emancipated and whether the presumption of emancipation has been rebutted. So, too, the issue of child support, an integrated issue with emancipation, and for that matter, alimony, must be determined, not on the record created by competing certifications, but after a full hearing to identify and determine the facts relevant to resolving the issues in dispute. We leave the resolution of these issues to the trial judge on remand.

Finally, we find no error in the judge's denial of counsel fees on the motion. This will not preclude further applications as a result of the hearing, but any determination as to the merits of such an application must abide the hearing.

Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

ASHRAFI, J.A.D., concurring and dissenting.

I write separately to address the issue of child support and a divorced parent's obligation to pay tuition and related expenses for law school. The record before us leads me to conclude that the trial court erred in ruling that Jessica Schambach is not emancipated and ordering defendant Richard Schambach to pay child support to plaintiff Barbara Schambach for a twenty-two year-old daughter who does not live with her.*fn1

I dissent from that part of the majority opinion that permits the trial court on remand to order payment of child support.

The trial court included the following decretal provisions in its post-judgment order of March 11, 2009, all of which have been appealed by Richard:

1. Defendant's request to terminate child support is DENIED. Jessica is not emancipated.

....

4. Defendant shall re-pay 41% of the $11,562.50 student loan.

5. Defendant shall contribute 41% towards the $325 for Jessica's initial law school deposit; 41% towards the $600 for Jessica's tuition payment; and 41% towards the $3,400 for Jessica's Bar Bri bar review course. Payment shall be made within ten (10) days.

6. Defendant shall contribute 41% towards Jessica's post-graduate law school tuition, costs, room and board. Defendant's 41% contribution obligation shall occur after all financial aid has been exhausted.

On this record, it is difficult to view Jessica as an unemancipated child that the law can compel her parents to support. At the time of the court's order, Jessica was attending Brooklyn Law School full time. She had previously performed well in school and graduated in four years from Brandeis University in the spring of 2008. As an undergraduate, she had spent a semester of study in Australia. She did not live with either parent in New Jersey but in an apartment in New York City, which had been inherited by Barbara and which Jessica was permitted to use while attending law school. The record does not reveal how Jessica was meeting her other living expenses or how much time she spent at either parent's home. Jessica had no physical or psychological disability that might have extended her dependency on her parents into adulthood. See Grotsky v. Grotsky, 58 N.J. 354, 356-57 (1971). It seems clear from the record that, other than the need for financial assistance from her parents to attend law school, Jessica was a young adult living on her own and capable of supporting herself.

It is even more difficult to view Jessica as an unemancipated child, without "an independent status of... her own," Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997), when one considers that, within months of the termination of child support as ordered by the court, she will be expected to serve clients as their lawyer. One would think that law schools are not typically enrolling children who are still fundamentally dependent on their parents, see ibid., but young adults capable of living independently and supporting themselves.

Neither I nor the trial court, however, decide the issue of emancipation as a matter of first impression.

The Legislature has chosen not to set a fixed event that terminates a parent's child support obligation. See N.J.S.A. 2A:34-23(a). We have previously stated that emancipation does not occur at a fixed age but is a fact-sensitive question. Dolce v. Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006); Patetta v. Patetta, 358 N.J. Super. 90, 93 (App. Div. 2003); Filippone, supra, 304 N.J. Super. at 308.

In Newburgh v. Arrigo, 88 N.J. 529 (1982), a case that did not decide an issue of ongoing child support, the Court recounted treatment of the emancipation issue in prior case law.*fn2

Id. at 543-44. The Court noted that a child's reaching the age of majority, which is eighteen in this State, N.J.S.A. 9:17B-3, establishes "prima facie, but not conclusive, proof of emancipation." Newburgh, supra, 88 N.J. at 543. It also stated: "Generally parents are not under a duty to support children after the age of majority." Ibid. But the Court also held that the continuing education of a young adult may result in a judicial determination that he or she is not emancipated and is entitled to continued support from parents. See id. at 543-44.

The Legislature's subsequent 1988 amendment of the child support statute, L. 1988, c. 153, § 3, confirmed that child support may be awarded for a child more than eighteen years old and continuing post-secondary education. The statute made specific reference to the "[n]eed and capacity of the child for education, including higher education" as one of the several factors for judicial determination of the amount and duration of child support. N.J.S.A. 2A:34-23(a)(5).

Later in Filippone, supra, 304 N.J. Super. 301, we focused on the question of emancipation for children that had reached the age of majority. We concluded: "Emancipation of a child is reached when the fundamental dependent relationship between parent and child is concluded, the parent relinquishes the right to custody and is relieved of the burden of support, and the child is no longer entitled to support." Id. at 308. We also stated: "In the end the issue is always fact-sensitive and the essential inquiry 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.'" Ibid. (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995).

With two exceptions, every published opinion in this State addressing the issue of a parent's obligation either to pay ongoing child support or expenses of college education has been made in the context of the child pursuing an undergraduate degree. See, e.g., Gac v. Gac, 186 N.J. 535, 539-40 (2006); Kiken v. Kiken, 149 N.J. 441, 445-46 (1997); Khalaf v. Khalaf, 58 N.J. 63, 71-72 (1971); Gotlib v. Gotlib, 399 N.J. Super. 295, 307-11 (App. Div. 2008); Patetta, supra, 358 N.J. Super. at 93; Filippone, supra, 304 N.J. Super. at 308; Moss v. Nedas, 289 N.J. Super. 352 (App. Div. 1996); Limpert v. Limpert, 119 N.J. Super. 438, 441-42 (App. Div. 1972); Jonitz v. Jonitz, 25 N.J. Super. 544, 556-57 (App. Div. 1953); Schumm v. Schumm, 122 N.J. Super. 146, 148-50 (Ch. Div. 1973).

Only in Ross v. Ross, 167 N.J. Super. 441 (Ch. Div. 1979), a trial court opinion, has a court in a published decision ordered that child support be continued for a son or daughter attending graduate school. There, the parties' twenty-three year-old daughter, their only child, was attending law school. At the time of divorce, the daughter was about Jessica's age and in high school. The father had been ordered to pay $17.50 per week in child support. Id. at 443. He continued to pay that amount until she graduated from college, and then he stopped paying. The mother moved to compel payment of the child support amount until their daughter completed her education in law school. Ibid. The court was not required to address payment for law school tuition or other educational expenses; the mother and daughter together were paying those expenses and had not sought the father's contribution.

The trial judge found that the daughter was commuting to Seton Hall Law School while living at her mother's home. He found that the daughter had planned to become a lawyer from the beginning of her college education, and the father was kept apprised of those plans and approved them. He noted the daughter's success as a student, her personal efforts to fund her education, and the mother's undertaking to pay the law school expenses without contribution from the father. Taking those and other factors into consideration, including the father's gross income of $16,000 per year compared to the mother's income of $12,000, the judge held that the daughter was not emancipated despite her graduation from college. He concluded that the father's continuing obligation to pay $17.50 per week in child support was fair and just under all those circumstances. Id. at 446-48.

In Newburgh, supra, 88 N.J. at 544, the Supreme Court cited Ross in listing relevant decisions on emancipation. Although the citation by itself should not be viewed as elevating the trial court decision to binding authority, the Court in Newburgh also stated: "In appropriate circumstances, parental responsibility includes the duty to assure children of a college and even a postgraduate education such as law school." Ibid. In fact, the issue in Newburgh was the son's entitlement to wrongful death benefits to pay for his undergraduate and law school education. Id. at 534. The decision set forth twelve non-exclusive factors for a trial court to consider in determining the child's entitlement to continuing support, id. at 545, but it did not analyze with detail a parent's obligation to support a child continuing post-graduate study.

In deciding an issue of emancipation upon a child's graduation from college, we must not neglect the statements in Newburgh that a child's reaching the age of majority establishes prima facie but not conclusive proof of emancipation and that parents are "[g]enerally... not under a duty to support children after the age of majority." Id. at 543. Newburgh and the other cases cited establish a procedural framework for determining whether a divorced parent is obligated to pay child support for a child over eighteen attending college, or full-time post-graduate study. When the child reaches the age of majority and is no longer in high school, the child is presumed to be emancipated. The party seeking support has the burden of proving that the child is not in fact emancipated, and that party should present evidence in line with the factors listed in Newburgh, supra, 88 N.J. at 545, and any other factors relevant to determining whether the child has moved "beyond the sphere of influence and responsibility exercised by a parent" and has obtained "an independent status of his or her own." Filippone, supra, 304 N.J. Super. at 308.

An agreement of the parties may be an important factor in determining the parents' obligations, but the court must also be cognizant that child support is an entitlement of the child that cannot be waived by the parent. See Dolce, supra, 383 N.J. Super. at 18-19; Patetta, supra, 358 N.J. Super. at 94.

Applying the statute and case law to the record on this appeal, I conclude that the trial court erred in analyzing and deciding the child support issue. At the time of the divorce in 2002, Richard and Barbara had reached agreement on many issues and had entered into a consent order setting forth their agreements. The consent order was subsequently incorporated into the Final Judgment of Divorce. The parties agreed that child support would be fixed in accordance with child support guidelines, which were determined to require Richard to pay Barbara $162 per week for support of Jessica. Richard made those payments and only moved to terminate his child support obligation in 2008 after Jessica graduated with an undergraduate degree.

The consent order of September 11, 2002, included a detailed provision for expenses for college and graduate education. It stated in its paragraph eighteen:

With regard to college expenses, it is acknowledged that there is a college fund for Jessica in the amount of $100,000.00. The wife shall continue as trustee for Jessica and to administer and account for the funds upon consultation between the parties. Sixty five percent of the fund balance as of the date Jessica graduates from high school shall be applied to her undergraduate college expenses which shall be defined as tuition, room and board, books and fees.... Jessica will be obligated, upon expiration of the 65% of funds applicable to her college expenses, to apply for college related financial aid and she shall accept a maximum $5,000.00 per year student loan as her personal contribution towards the aforementioned college expenses. When the fund has reduced by 50%, the parties will, within thirty days, exchange formal Case Information Statements, prior two year tax returns and proof of year-to-date income and shall within sixty days thereafter, negotiate the issue of college contributions by the parties to Jessica's additional college expenses for undergraduate studies. Any shortfall for college will be an obligation of the parties until Jessica obtains her undergraduate degree. Contributions by the parties (beyond the 35% of the fund) are voluntary only. It is anticipated that 35% of the trust fund shall be applied to Jessica's post graduate expenses or if Jessica does not attend college post graduate, this sum shall be paid to her at the age of twenty-five. In the event Jessica fails to graduate from college, it is expressly agreed that any loans incurred by either party for her college expenses shall be reimbursed to that party from the trust account before the distribution of the thirty five percent balance to Jessica. [(Emphasis added.)]

Thus, the agreement seems clear that the parents were obligated to fund Jessica's undergraduate schooling, with the exception of $5,000 per year in loans that would be Jessica's contribution after the expenditure of 65% of the fund, but that the parents' contributions to post-graduate education would be voluntary beyond the $35,000 of the fund set aside for that purpose.

In ruling on the continuation of child support, reimbursement of Jessica's student loans, and tuition and related expenses at Booklyn Law School, the trial judge cited Lepis v. Lepis, 83 N.J. 139 (1980), as the controlling law. The court stated:

The emancipation of a child may qualify as a changed circumstance for child support review. See Appendix IX(a) subparagraph 23, to the Child Support Guidelines.

I'm satisfied here that the defendant, Richard Schambach, has not demonstrated changed circumstances that would warrant a termination in his child support obligation. He acknowledges that there is no substantial change in his income since the entry of the original child support order.

Defendant argues that since Jessica is emancipated he should not pay child support because there is no legal duty for him to do so. But on the other hand, defendant does have a legal duty to pay child support because he has not proven that his daughter is emancipated. It is the demonstrable needs of the child, not the age of the child, that is determinative of the duty to support.

While the age of 18 establishes prima facie proof of emancipation, it is by no means conclusive. Our courts have held that a child's full time enrollment in school would require continued support.

The judgment of divorce does not have a provision as it relates to emancipation.

But plaintiff's argument that the parties contemplated that Jessica would attend post graduate school is valid. A careful examination of paragraph 18 of the consent order reads, "It is anticipated that 35 percent of the trust fund shall be applied to Jessica's post graduate expenses."

Jessica is currently enrolled full time as a first year student at Brooklyn Law School. She's in a post graduate setting. And by the very language of the consent order, she should not be emancipated. And I will not deem her emancipated.

I... I go on to point out in addition, courts have required or extended support to children who are enrolled in graduate programs. See by way of example, Ross versus Ross 167 New Jersey Superior 441 (Chancery Division, 1979), which extended support to a 23 year old daughter who showed an early interest in law school. Graduated magna cum laude from college, and then enrolled in law school.

I'm satisfied given the circumstances here, that the defendant, Richard Schambach, is to continue his support obligation to his daughter Jessica. His motion to emancipate her and then as a consequence to end his support obligation to the child, both of those prayers for relief are denied. [(Emphasis added; citation omitted.)]

The trial court's ruling was erroneous for several reasons:

(1) it misapplied the burden of proof on the issue of Jessica's emancipation, (2) it presumed that a child continuing post-secondary education is entitled to her parents' support under the law, and it was too-narrowly based on "the demonstrable needs of the child" rather than all the factors listed in Newburgh, and (3) it misconstrued the parties' agreement with respect to their intentions after Jessica graduated from college, neglecting the provision of the agreement that any payments beyond the $35,000 funded for post-graduate education would be voluntary.

To prove changed circumstances pertaining to child support, it was sufficient for Richard to show, without dispute, that Jessica was more than eighteen years old and had graduated from college. Those were changed circumstances. The trial court reversed the presumptions that apply upon such a showing by concluding that Richard was obligated to prove additional changed circumstances in accordance with Lepis, supra, 83 N.J. 139. In fact, by stating "[o]ur courts have held that a child's full time enrollment in school would require continued support[,]" the trial court presumed that a child continuing her education is entitled to child support. Because of the presumptions acknowledged in Newburgh, supra, 88 N.J. at 543, Barbara should have borne the burden of proving that Jessica is not emancipated despite the changes in her status that were demonstrated by Richard. I note that in Newburgh, supra, 88 N.J. at 546, the Court placed the burden of proof squarely on the adult son to prove his entitlement to his deceased father's financial support for college and law school.

In my view, the facts recited at the beginning of this opinion demonstrate that Barbara did not carry her burden of proving that Jessica was not emancipated. The mere fact that Jessica is continuing her education beyond a college degree, and needs her parents' financial support to do so, is not proof that she is still within the sphere of influence of her parents and entitled to their support. See Filippone, supra, 304 N.J. Super. at 308. Jessica was twenty-two years old and expected to remain in law school to the age of twenty-four. She was living away from her parents' homes. She had displayed an independence from her parents in attending an out-of-state university and studying in a far-away continent. Other than her inability to fund her law school education alone, there is simply no evidence of her dependency on her parents.

Many parents, whether together or separately, would be proud to provide financial support to a daughter like Jessica as she continues her education. But the issue is not whether the parents should in good conscience provide support but whether the law compels them to do so.

If the child's financial need by itself were sufficient to prove that she is not emancipated, a parent's support obligation could last indefinitely and far into adulthood. Adult children often need their parents' financial help in many ways besides for continuing education. Some would benefit from help in getting started in a business or craft, or in establishing a home and a family. Some adult children are in need of financial assistance to pay rent so that they can move out of their parents' "sphere of influence" and become independent. Some are financially dependent while they navigate the turbulence of young adult errors and missteps. Cf. id. at 308-12 (relative treatment for purposes of support obligation of son who dropped out of school and daughter who remained in school despite a pregnancy). Many parents voluntarily assist their adult children by providing services rather than cash, such as child care so that their adult children can work and earn a living. Yet our courts have not considered declaring such adult children unemancipated. Graduate school should not be elevated above other kinds of financial dependency of adult children without substantial proofs in addition to their financial need.

While the desire of parents to help their adult children financially is commendable and should be encouraged, the courts should not be involved far into adulthood to order child support simply because the parents are divorced. The power of government, which includes the power of the judiciary, should be exercised only when the government has a legitimate interest. As the child reaches adulthood and becomes self-sufficient and independent in significant ways, the government's interest in protecting the child's welfare diminishes. Consequently, in evaluating the factors listed in Newburgh, supra, 88 N.J. at 545, the weight of the child's financial needs should diminish as well. This adjustment in the law's role is important because of the inability of the parent to waive the child's right to support. Cf. Johnson v. Bradbury, 233 N.J. Super. 129, 131, 136 (App. Div. 1989) (permitting eighteen-year-old to sue parents to defray costs of college education).

In a similar vein, undue emphasis may be misplaced on the parents' intentions at an earlier time. See Gac, supra, 186 N.J. at 544. In Ross, supra, 167 N.J. Super. at 445, the court stated accurately that whether the parents would have financed the child's post-graduate schooling if the marriage had remained intact is not dispositive in determining whether a parent should be ordered to do so after a divorce. The good intentions of parents while they were married may be disrupted by the changed financial circumstances after a divorce. Most divorced parents face additional expenses that they would not have had if the marriage had survived, including legal debts, maintaining a second household, and often supporting a new family. The inability or disinclination to pay what the parent earlier intended to pay does not make the parent less loving or worthy.*fn3

An important consideration recognized in Newburgh, supra, 88 N.J. at 545, is the ability of the parent to pay the costs of continuing education for an adult daughter or son.

Our law of child support does not presume that a parent is obligated to pay child support until a child who has reached the age of majority stops pursuing post-secondary education, and the trial court erred in concluding that it did.

The trial court also mistakenly construed the parties' consent order of September 11, 2002, as indicating an intent that Jessica would remain unemancipated through graduate school. The parties' agreement cannot fairly be read to prove that intent.

The consent order establishes that Richard and Barbara agreed to fund $35,000 (presumably with accumulated interest) for Jessica's post-graduate studies, or alternatively, to be paid directly to Jessica at the age of twenty-five. The trial court failed to note the provision of the agreement stating that any contributions beyond the $35,000 already funded would be voluntary. Contrary to the trial court's conclusion, that provision implies that the parents did not agree to accept any obligation beyond the fund set aside for graduate education, and therefore, they intended that Jessica be emancipated after completion of her undergraduate studies.

Neglecting the terms of the parties' agreement in post-judgment proceedings can hinder the ability of counsel and the parties to resolve issues at the time of the divorce. Especially because potential post-graduate obligations are likely to be remote in time and fraught with uncertainty when child support is being ordered, some level of predictability and stability is useful in fostering agreement and, consequently, resolution of more immediate issues.

For all these reasons, on the record presented, I would hold that Jessica was emancipated and that Richard's obligation to pay child support ended upon her graduation from college.

The open factual question that the record before us does not resolve is what the parties agreed to do during the time that Jessica was attending Brandeis University with respect to the $35,000 set aside for post-graduate education. Barbara contends that Richard agreed to use the money for Jessica's undergraduate expenses. Richard claims that he was not consulted and Barbara never accounted for expenditure of the college fund.

As we said in Dolce, supra, 383 N.J. Super. at 20-21, divorcing parents may agree voluntarily to support children beyond their emancipation, and their agreements are enforceable if fair and just. I do not read Richard's appeal as suggesting that the agreement in 2002 to use $35,000 for Jessica's postgraduate studies was unfair or unjust. On the other hand, Barbara has not presented any evidence that a fund of $35,000 for post-graduate study is unfair and unjust because it is not sufficient.

The trial court should develop an evidentiary record concerning the circumstances of premature expenditure of the $35,000 to determine whether the parties should be obligated to replenish it for purposes of funding Jessica's law school expenses. Beyond that amount, any obligation of either parent to fund further post-graduate study should be ordered only upon a demonstration that the parties' agreement was unfair or unjust, and taking into consideration all the factors listed in Newburgh when the court compels a parent to pay for college or post-graduate education.

Finally, on the issue of reimbursement for undergraduate loans taken by Jessica, the trial court divided the total loan of $23,125.00 in half, that is, $11,562.50, and ordered Richard to pay 41% of that amount. Barbara challenges that ruling, arguing both that the 41% share was inadequate for Richard and that the entire $23,125.00 should have been reimbursed. While each parent's share should be recalculated, it is also incorrect that the parents' obligation is to repay the whole amount of the loans. Paragraph eighteen of the consent order required that Jessica contribute up to $5,000 per year through loans once the 65% share of the fund for her undergraduate education was exhausted. Although we do not have precise information on when that percentage of the fund was spent, it appears that it must have been after her second year at Brandeis. Therefore, Jessica was obligated to incur as her personal contribution indebtedness of $10,000 for the next two years. The amount of loans to be reimbursed by the parents appears to be $13,125, divided proportionally as to be recalculated. The parties may address these figures further on remand.

I agree with my colleagues that the issue of Richard's obligation to contribute toward Jessica's law school expenses requires an evidentiary hearing, but only because Richard agreed to contribute jointly with Barbara $35,000 for that purpose. Whether that agreement was modified, and the potential obligation of each party to replenish the post-graduate fund, must be determined through further proceedings, including an evidentiary hearing if the issue remains in dispute.

Because the trial court erred in its rulings, the matter must be remanded for an evidentiary hearing on the issues discussed in our opinions. I would hold, however, that Richard's obligation to pay child support ended when Jessica graduated from college.


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