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William Sundburg v. Kari Kuczynski

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 7, 2011

WILLIAM SUNDBURG, PLAINTIFF-APPELLANT,
v.
KARI KUCZYNSKI, F/K/A KARI SUNDBURG, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-240-94. Scott J.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 29, 2010 - Decided Before Judges Fuentes, Gilroy and Ashrafi.

Plaintiff William Sundburg appeals from those parts of the November 9, 2009 Family Part order that denied his motion seeking to have the parties' nineteen-year-old daughter emancipated, or in the alternative, to transfer venue to the State of Pennsylvania.

Pursuant to a judgment of divorce (JOD) entered in Hunterdon County, following a seven-year marriage, plaintiff and defendant Kari Kuczynski, f/k/a Kari Sundburg, were divorced on October 6, 1994. One child, a daughter, was born of the marriage in September 1990. The JOD incorporated the parties' July 29, 1994 property settlement agreement (PSA). The PSA provides for joint legal custody of their daughter; designates defendant as the parent of primary residence with defendant having defined parenting time; and fixes defendant's child support obligation at $125 per week payable through the Hunterdon County Probation Department. The PSA also addresses the child's emancipation and the parties' responsibilities to share in the payment of her college education.

Paragraph 7.1 of the PSA provides that the parties would consult with each other concerning their daughter's education. In furtherance of the parties' desire that their daughter enjoy the advantages of a college education, paragraph 9.1 of the PSA provides that after allowing for "any grants, scholarships, state or federal loans for which [she] is eligible, gifts or inheritances which [she] might have accumulated for the purpose of deferring college expenses," to the extent the parties are financially able, they will pay for all of the child's college education.

Paragraphs 8.3 and 8.4 of the PSA addresses emancipation. Paragraph 8.3 provides that plaintiff's obligation to pay child support would terminate upon his death, the death of the daughter, or upon her emancipation, whichever occurs first. Paragraph 8.4 of the PSA provides that, "[e]xcept for [the] child attending full-time college immediately following high school and summer vacation, emancipation shall be defined as the occurrence of the earliest of the following events:" -- the child: 1) obtaining the age of eighteen; 2) graduating from high school, college, or vocational school; 3) voluntarily withdrawing or being permanently expelled from college or vocational school; 4) gaining full-time employment, or the ability to engage in full-time employment; 5) entering military service; or 6) marrying. Lastly, the parties agreed that the PSA "shall be construed and interpreted under and in accordance with the laws of the State of New Jersey."

In 1996, defendant moved to Reading, Pennsylvania, and has continued to maintain residency there. In November of that year, plaintiff filed a motion seeking, among other things, an order confirming his consent to defendant having removed the parties' daughter to Pennsylvania, conditioned upon defendant residing within one and one-half hours of driving distance from Flemington, New Jersey; plaintiff also sought an order determining that jurisdiction remains in New Jersey, "for any and all future issues requiring judicial intervention," as long as he maintains his New Jersey residency. On December 13, 1996, the court entered an order granting those two requests.

In July 2009, asserting that the parties' then eighteen-year-old daughter had graduated high school but had not matriculated in college, plaintiff filed a motion seeking an order declaring the child emancipated, and alternatively, transferring "venue" to Pennsylvania. Defendant filed a cross-motion seeking to compel plaintiff to pay his share of their daughter's college costs, contending that not only had the child graduated high school in June 2009, but had also matriculated as a fulltime student at the California University of Pennsylvania, a member of the Pennsylvania State System of Higher Education.*fn1

Defendant asserted that their daughter intended to begin her education at the university in the fall of 2009. In support of her cross-motion, defendant provided the court with their daughter's certificate of admission from the university, her housing contract for the upcoming school year, and an invoice from the university reflecting the tuition, and the room and board fees for the 2009 fall semester. Defendant also sought an award of counsel fees and costs in opposing plaintiff's motion and in prosecuting her cross-motion to enforce the terms of the PSA.

On November 9, 2009, Judge Bartlett, without conducting an evidentiary hearing, entered an order, with reasons stated pursuant to Rule 1:6-2(f), denying plaintiff's motion seeking an order declaring the parties' daughter emancipated and directing plaintiff to continue to pay his weekly child support pending further order of court; and denying plaintiff's request to transfer venue to Pennsylvania. The same order also denied without prejudice defendant's motion seeking to compel plaintiff to pay his pro-rata share of the daughter's college education expenses. The order directed the parties to exchange updated case information statements in an attempt to resolve each party's proportionate share of the child's college expenses, and granted leave for either party to file a subsequent motion if settlement of the issue was not reached. Lastly, the order denied defendant's request for counsel fees and costs. It is from this order that plaintiff appeals.

On appeal, plaintiff argues that the trial court erred in denying his motion seeking to have the parties' daughter declared emancipated because defendant breached her obligations under the terms of the PSA by failing to "inform[] him as to the college and educational costs of the child" before the child matriculated at the university. Alternatively, plaintiff contends that the court erred in denying his request for a change of "jurisdiction" to Pennsylvania because the parties' daughter has maintained residency in that state for more than fourteen years.

We have considered plaintiff's arguments in light of the record and applicable law. We are satisfied that neither argument is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Bartlett in the November 9, 2009 order. Nevertheless, we add the following comments.

Plaintiff argues that the trial court erred in denying his motion seeking to have the parties' daughter declared emancipated. Plaintiff asserts that he is entitled to that relief because defendant failed to consult with him concerning the child's enrollment and attendance at the California University of Pennsylvania. Not so.

Generally, "emancipation is the act by which a parent relinquishes the right to custody and is relieved of the duty to support a child." Newburgh v. Arrigo, 88 N.J. 529, 543 (1982).

In New Jersey, there is no fixed age upon which emancipation occurs. Gac v. Gac, 186 N.J. 535, 542 (2006). While a rebuttable presumption against emancipation occurs prior to reaching the age of majority, N.J.S.A. 9:17B-3, attainment of age eighteen establishes prima facie, but not conclusive, proof of emancipation. Newburgh, supra, 88 N.J. at 543; Patetta v. Patetta, 358 N.J. Super. 90, 93 (App. Div. 2003). For example, emancipation may occur upon a child's marriage, upon induction into military service, by court order based on a child's best interests, or by attainment of an appropriate age. Newburgh, supra, 88 N.J. at 543. The issue is fact sensitive. Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997).

"[T]he 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)). This determination requires "a critical evaluation of the prevailing circumstances including the child's need[s], interests, and independent resources, the family's reasonable expectations, and the parties' financial abilit[ies], among other things." Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006).

Here, the court denied plaintiff's motion seeking emancipation of the parties' daughter relying on defendant's uncontested evidence that the child had matriculated in a university for the 2009 fall semester. We conclude that the trial court did not abuse its discretion in denying plaintiff's motion seeking emancipation of his daughter. See Patetta, supra, 358 N.J. Super. at 94 (holding that "while parents are not generally required to support a child over eighteen, his or her enrollment in a full-time educational program has been held to require continued support"). Such determination is in accord with the parties' PSA where, in defining emancipation, they specifically exempted their daughter's enrollment into college following graduation from high school. Because we conclude that the trial court's determination is "supported by adequate, substantial, credible evidence" in the record, Cesare v. Cesare, 154 N.J. 394, 411-12 (1998), we reject plaintiff's argument.

Moreover, plaintiff's argument that he should not have to pay for his daughter's college educational expenses because of defendant's failure to consult him regarding the child's choice of college is not a valid reason to declare the child emancipated. Rather, it is a factor upon which plaintiff may raise in opposing any future motion that defendant may file seeking to enforce the terms of the PSA concerning college educational expenses. Gac, supra, 186 N.J. at 546-47; Newburgh, supra, 88 N.J. at 545.

We also determine that the trial court correctly denied defendant's alternate motion originally filed as a motion seeking transfer of "venue" to Pennsylvania, but now phrased on appeal as a motion for a transfer of "jurisdiction" to Pennsylvania. We conclude that no matter how phrased, the trial court correctly denied the request.

Rule 4:3-3 governs transfers of venue. The rule by its plain language is only applicable to a change of venue from one county in this State to another county in the State. Nor, contrary to plaintiff's assertion, was he entitled to a transfer of venue pursuant to Rule 5:2-1. The second paragraph of that rule "prescribes venue rules in custody cases in which either party or the child does not reside in this State" and "accords with the Uniform Child Custody Jurisdiction [and Enforcement] Act.[*fn2 ]" Pressler & Verniero, Current N.J. Court Rules, History and Analysis of Rule Amendments to Rule 5:2-1 (2011) (Gann online). Because plaintiff's motion for emancipation did not present a custody issue, this paragraph is, likewise, not implicated. See N.J.S.A. 2A:34-54 (defining "child custody proceeding" to exclude "contractual emancipation" proceedings).

We further determine that plaintiff's argument that the trial court improperly denied a transfer of jurisdiction to Pennsylvania is also without merit.*fn3 The parties agreed in the PSA that it would "be construed and interpreted under and in accordance with the laws of the State of New Jersey." Two years after executing the PSA, defendant relocated to Pennsylvania with the parties' daughter. On plaintiff's motion, the court entered an order confirming plaintiff's consent to that relocation and directed that jurisdiction would remain in New Jersey, "for any and all future issues requiring judicial intervention" as long as plaintiff maintained residence in New Jersey. Now, fourteen years later, plaintiff seeks to undo the order that he invited the court to enter. With defendant objecting, we find no good cause to alter the December 13, 1996 order.*fn4

Affirmed.


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