January 11, 2011
VICTORIA FREEMAN, PLAINTIFF-RESPONDENT,
SCOTT FREEMAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-360-97.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2010 - Decided Before Judges Baxter and Koblitz.
Defendant Scott Freeman appeals from a March 1, 2010 Family Part order that denied his motion to terminate his child support obligation for his twenty-year-old daughter, Susan,*fn1 thereby rejecting his claim that she was emancipated. Defendant likewise appeals from portions of the same order that denied his request to: terminate his obligation to provide health insurance for Susan and to contribute to her uninsured healthcare expenses; and to eliminate his obligation to provide life insurance naming Susan as a beneficiary. We reverse.
Defendant was divorced from plaintiff Victoria Freeman on April 15,
1998. Because Susan was only eight years old at the time,*fn2
and her brother was only five, the judgment of divorce (JOD)
did not allocate the responsibility for the children's college
tuition. Instead, the agreement merely provided that it was the
parties' intention to afford their children a college education and at
the appropriate time, the parties would consult with one another and
reach agreement as to each party's financial responsibility.
Susan graduated from high school in June 2007 and enrolled at Gloucester Community College in the fall of that year. Based upon an agreement he had reached with plaintiff, defendant paid his share of Susan's tuition and books. However, he refused to make any further contribution toward Susan's college tuition until he received her grades for the fall 2007 semester. Plaintiff responded by moving for an order compelling defendant to contribute to Susan's college tuition for the spring semester; however, she refused to provide him with any of the information he had requested concerning Susan's grades.
Defendant filed a cross-motion seeking information concerning the status of the college fund the parties had established during the marriage and an explanation of why the college fund was not being used to pay for Susan's education. He also sought an order requiring plaintiff to provide him with Susan's grades from the fall 2007 semester.
The court set the matter down for a plenary hearing. In anticipation of that hearing, defendant served a subpoena on Gloucester Community College to obtain Susan's transcript. In response to that subpoena, defendant learned that Susan had taken the exact same courses for both semesters, and had failed all of them.
The plenary hearing was scheduled for June 30, 2008; however, before the hearing began, the parties entered into a consent order concerning Susan's college tuition.*fn3 In the course of negotiating the consent order, plaintiff advised defendant that although Susan had failed all of her courses at Gloucester Community College, she had enrolled in a summer remedial course at Atlantic Cape Community College for the summer of 2008. Based upon those representations, defendant agreed to pay seventy percent of: the outstanding bill at Gloucester Community College, the summer course at Atlantic Cape Community College, and the cost of books for the summer course, as well as seventy percent of any future tuition and book expenses for Susan, provided Susan was taking a minimum of twelve credits per semester. The consent order also obligated Susan to execute a release authorizing the college to provide her father with copies of her college transcript and grades. During the negotiations on the morning of the plenary hearing, plaintiff finally told defendant what happened to the college fund the parties had established during the marriage: Susan had used the college fund to purchase a car.
In the fall semester of 2008, rather than return to Gloucester Community College to complete her studies, Susan enrolled at the Prism Career Institute in Cherry Hill, ultimately graduating on June 6, 2009 with a certification as a medical assistant. Neither plaintiff nor Susan ever advised defendant that Susan was no longer enrolled in college.
In August 2009, defendant received notice from his health insurance provider that Susan's health insurance coverage would be terminated unless he established that she was currently enrolled as a full-time student. Defendant forwarded a copy of that letter to plaintiff's then-attorney, advising plaintiff that unless proof of Susan's status as a full-time student was provided to the insurance company by September 30, 2009, her health insurance would be canceled retroactively to September 1, 2009.
On November 10, 2009, having received no response from plaintiff to his inquiry concerning Susan's college enrollment, defendant filed the instant motion to declare Susan emancipated. He requested that Susan be emancipated retroactive to June 6, 2009. In keeping with his claim that Susan was already emancipated, defendant sought to terminate his obligation to provide her with health insurance and to terminate his obligation to provide $100,000 of life insurance naming Susan as a beneficiary.
Moreover, defendant maintained that the calculation of his reduced child support obligation should no longer be based on an annual income of $176,537, because he anticipated that his income would decline by approximately $16,000 to $160,534. Plaintiff cross-moved for an order compelling defendant to contribute to Susan's expenses in connection with her attendance at the Prism Career Institute.
By order of December 23, 2009, the judge denied defendant's motion to declare Susan emancipated. In light of the finding that Susan was not emancipated, the judge denied defendant's additional requests for relief. The judge also denied plaintiff's cross-motion, which would have required defendant to pay a significant portion of Susan's tuition at Prism Career Institute. As to the latter, the judge reasoned that plaintiff did not comply with the terms of the September 2008 consent order because she never notified defendant that Susan was not attending community college, and only told defendant that Susan had enrolled at Prism Career Institute after the fact.
On the issue of emancipation, the judge's reasoning was as follows:
In general, emancipation is the act by which a parent relinquishes the right to custody and is relieved of the duty to support a child. Emancipation occurs when a child is, or is expected to be, self-supporting. Although emancipation exists prior to attaining the age of majority, attainment of the age of 18 establishes the prima facie, but not conclusive, proof of emancipation. Moreover, it is not unusual for a parent to support a child over the age of 18 in order for all avenues of education to be explored. New Jersey courts have consistently held that emancipation does not occur until the child's education has been completed. In the end, the issue 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.
[Susan] is over 18 and has completed her education. However, she still lives at home and only makes $120 per week. It does not appear that she is self-supporting, or that she has moved beyond the sphere of influence and responsibility exercised by a parent and obtained an independent status of her own. Accordingly, defendant's motion for emancipation is denied. [(Internal quotation marks and citations omitted).]
On February 2, 2010, defendant moved for reconsideration of the December 23, 2009 order and specifically requested oral argument. The judge decided defendant's motion for reconsideration based only upon the parties' written submissions. No oral argument was conducted. In a brief written decision and order dated March 1, 2010, the judge denied defendant's motion for reconsideration, reasoning that defendant had not met his burden of establishing that the court's refusal to declare Susan emancipated was based upon a palpably incorrect or irrational basis, or that the court did not consider, or failed to appreciate, the significance of the evidence presented.
On appeal, defendant argues the court erred in not declaring Susan emancipated and in refusing to grant his additional requests for relief. He maintains that Susan is well over the age of eighteen, is no longer enrolled in school, and is working. Those facts, he argues, required the judge to declare Susan emancipated. Defendant also contends that because he requested oral argument on the reconsideration motion, the judge lacked authority to dispense with oral argument.
Plaintiff, in contrast, maintains that Susan is not emancipated. She points out that emancipation, even when the child concludes his or her schooling, "is not a self-executing principle." She maintains that the inquiry is "fact-sensitive," and although Susan has graduated from a career institute, she has not moved beyond the sphere of her parents' influence or obtained her own independent status. According to plaintiff, Susan has not yet found gainful full-time employment, let alone employment in her chosen field and has instead had to settle for a part-time waitress and hostess job earning only $120 per week. Last, plaintiff points out that defendant earned $160,534 in 2009 and is well-able to contribute to his daughter's support.
The issue of "[w]hether a child is emancipated at age 18, with the correlative termination of the right to parental support" is fact-sensitive. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). "[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.'" 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)). This determination involves a critical evaluation of the prevailing circumstances, including the child's needs, interests, independent resources, the family's reasonable expectations, and the parties' financial ability, among other things. Newburgh, supra, 88 N.J. at 545. The moving party bears the burden of establishing the circumstances that warrant a change in support. Zazzo v. Zazzo, 245 N.J. Super. 124, 132 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991).
We turn first to defendant's argument that because he requested oral argument in connection with his motion for reconsideration, the court should not have dispensed with oral argument by deciding the reconsideration motion on the papers. We need not address that issue, as we are satisfied that the uncontroverted facts presented to the trial court in connection with the November 2009 motion entitled defendant to an order granting his motion for reconsideration. The undisputed facts established that Susan was over the age of eighteen, had successfully completed the program at the Prism Career Institute, and had obtained her certification as a Medical Assistant. Defendant's proofs also demonstrated, without any dispute from plaintiff, that Susan's education was complete and she had no intention of obtaining any further schooling or training. Moreover, she was working, and earning, according to her mother, $120 per week as a waitress.
We agree with defendant's argument that the judge's narrow, indeed exclusive, focus on Susan's income as being insufficient to live independently was error. The judge's conclusion that Susan remains under her mother's influence and control, and is therefore not emancipated, was based on nothing other than Susan earning only $120 per week.
Filippone establishes a rebuttable presumption that a child is emancipated once he or she reaches the age of eighteen. Filipone, supra, 304 N.J. Super. at 308. Susan satisfies none of the exceptions established by the caselaw, as she is no longer in school, see Newburgh, supra, 88 N.J. at 543, and is not disabled, see Filippone, supra, 304 N.J. Super. at 311. On the facts presented, the judge was obliged to declare Susan emancipated, as she had "moved beyond the sphere of influence of her parents or [had] obtained an independent status of her own." Id. at 308. The mother's financial support of her emancipated daughter is voluntary. While such parental support may be laudatory and is certainly common in hard financial times, it does not render an adult child, who has completed her education, and who is without disabilities, unemancipated.
In light of our conclusion that Susan is emancipated and that the judge erred when he held to the contrary, we reverse and remand for the entry of an order so providing. On remand, the judge shall: recalculate child support with such support being applied only to the parties' son; terminate defendant's obligation to provide life insurance and health insurance on Susan's behalf; and relieve defendant of his obligation to contribute to Susan's unreimbursed medical expenses.