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Gayle Nelson v. Michael A. Nelson

May 9, 2011

GAYLE NELSON, PLAINTIFF-RESPONDENT,
v.
MICHAEL A. NELSON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-588-97 J.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 29, 2011

Before Judges Skillman and Roe.

In this post judgment motion, defendant, Michael A. Nelson, appeals from a denial of his motion for reconsideration of a June 11, 2010 order of the Family Part denying emancipation of his two daughters. We affirm.

The parties were divorced in 1997. Two children were born of their marriage, Lauren Ann, born in 1988, and Gabriella Alexis, born in 1991. The judgment of divorce incorporated a property settlement agreement wherein the mother was deemed the primary custodial parent of the two children. The father, as the non-custodial parent, agreed to pay child support. Lauren is now a senior at Philadelphia University and Gabriella is a sophomore at Drexel University.

On May 6, 2009, defendant filed a motion to terminate his child support obligation and to emancipate both children. On June 23, 2009, the court denied defendant's application without prejudice, pending proof that both children were enrolled in post-secondary education on a full time basis to be provided by plaintiff within thirty days. Plaintiff provided the trial court with the proof sought. As a result, the court denied defendant's motion to terminate his child support stating the children were not emancipated based upon the proofs provided.

On September 17, 2009, defendant filed another motion requesting the court to transfer his child support obligation from Somerset County to Middlesex County and to modify his child support obligation due to a substantial change in financial circumstances. An order dated October 23, 2009 granted the application to transfer the probation account from Somerset to Middlesex County. Defendant's application to modify his child support obligation was denied without prejudice based on the court's determination that defendant had failed to prove a change of circumstance warranting reduction or termination pursuant to Lepis v. Lepis, 83 N.J. 139 (1980). The court reasoned that defendant's temporary loss of employment failed to demonstrate changed circumstance under Bonanno v. Bonanno, 4 N.J. 268 (1950). Additionally, defendant had not filed a current and updated case information statement pursuant to Rule 5:5-4(a).

On May 5, 2010, defendant filed a new motion to terminate child support, requiring plaintiff to present proof of current and future enrollment of Gabriella and to modify child support. On May 25, 2010, plaintiff provided proof of both children's full time enrollment in post-secondary education and responded to the child emancipation request for information form. On June 11, 2010, the court denied defendant's request to emancipate Lauren, as plaintiff had "provided the court with sufficient documentation to show that Lauren is still a full time post-secondary student at Philadelphia University with an anticipated degree date of May 2011." Defendant was directed to file a complete case information statement pursuant to Rule 5:5-4(a) in support of any future motions, or the court would not consider those motions going forward. Defendant's request that plaintiff be required to provide the Middlesex County probation division with proof of current and future enrollment of Gabriella was granted. Plaintiff was ordered to provide proof of current or future enrollment for both children directly to defendant within fifteen days of the culmination of each semester going forward, until such time as the children were no longer enrolled. Plaintiff's cross-motion to enforce defendant's arrearage payments and to compel timely payment of child support was granted.

Defendant filed a motion seeking reconsideration of the June 11, 2010 order denying his motion to emancipate Lauren and terminate child support for Gabriella until plaintiff provided proof of her current and future enrollment. On September 16, 2010, the court, on the papers, denied defendant's motion for reconsideration of the order dated June 11, 2010, finding defendant had not met his burden under Rule 4:49-2 to establish the court's decision was based on plainly incorrect reasoning or failed to consider evidence. The court stated plaintiff had provided sufficient documentation to determine that neither daughter was emancipated due to their enrollment in undergraduate studies. As both Lauren and Gabriella were enrolled in full time undergraduate programs of study, the court granted plaintiff's application for defendant's child support obligation to continue.

On appeal, defendant presents the following arguments for our consideration: the trial court erred in denying his request for oral argument and by failing to consider the factors in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982); and his due process rights were violated because plaintiff failed to serve him by first class mail.

The scope of our review is limited. "[F]indings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding."

Id. at 413. "Trial court findings are ordinarily not disturbed unless 'they are so wholly unsupportable as to result in a denial of justice[.]'" Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)).

Emancipation is "[a] conclusion of the fundamental dependent relationship between parent and child[.]" Dolce v. Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006). The examination of whether a child is emancipated 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 ...


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