On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FD-21-465-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Yannotti and Roe.
Plaintiffs Ronald and Judith Numon, husband and wife, appeal from a September 16, 2010 order of the Family Part dismissing their verified complaint seeking to emancipate their twenty-one-year-old son, defendant Michael Numon, who consented to the relief sought. For the following reasons, we reverse and remand.
According to plaintiffs' June 4, 2010 verified complaint for emancipation, their son was born in April, 1989 and presently attends Colorado State University. He resides, is registered to vote, and is licensed to operate a motor vehicle in Colorado. Michael pays for his own automobile insurance and his parents do not claim him as a deduction for income tax purposes. Apparently, Michael wishes to apply for financial aid as an in-state resident of Colorado and the State of Colorado supposedly requires a court order of emancipation to process the application. Compare N.J.A.C. 9A:5-1.1(f) (establishing a presumption that dependent students with parents domiciled outside of the State are non-domiciliaries for tuition purposes). To that end, in support of their emancipation complaint, plaintiffs attached a proposed consent order, signed by Michael and notarized, agreeing to the relief sought, for the court's execution. Nearly four months later, on September 16, 2010, the Family Part judge summarily denied the request and dismissed plaintiffs' complaint. In an accompanying statement of reasons, the judge concluded:
A custodial parent does not have a right to waive child support because said support duty runs to the supported child - not to the custodial parent. Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993). "Even an explicit waiver agreement cannot vitiate a child's right to support." Gotlib v. Gotlib, 399 N.J. Super. 295, 305 (App. Div. 2008). . . . Here, plaintiffs are still married to each other and there is no pending complaint for divorce. Irrespective of the marital status, both parents share the obligation to support the child. Pascale v. Pascale, 140 N.J. 583, 591 (1995). Furthermore, plaintiffs fail to show that defendant meets the requirements for emancipation.
. . . This Court finds that a motor vehicle license, proof that defendant is registered to vote, or that he pays his own automobile insurance does not meet the burden of showing that the child has moved beyond the sphere of influence of his parents. Plaintiffs fail to show that the child has moved beyond the sphere of influence of his parents. For example, plaintiffs do not show how long defendant has lived apart from his parents, whether he is employed, how he is paying for his college tuition, whether he owns or rents a home, and how he pays for same.
On appeal, plaintiffs argue that the court erred in summarily denying the relief. We agree.
Although the Family Part judge correctly noted that the right to child support belongs to the child and may not be waived by a custodial parent, Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993) (holding that the parents' agreement in a consent order that support would end when their daughter turned eighteen did not waive the daughter's right to support beyond her eighteenth birthday), we discern no principle of law precluding parents and their child over the age of majority from consensually agreeing to the latter's emancipation. The issue arises in this case because the parties, in addition, seek judicial sanction of their agreement. Yet given the force and effect of a judicial decree of emancipation - in this instance, extraterritorial in nature - a court is not bound by the mutual arrangement struck simply because all parties are united in their determination to declare a child emancipated.
Somewhat analogously, "a court cannot hear a case as to which it lacks subject matter jurisdiction even though all parties thereto desire an adjudication on the merits." Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 65 (1978). Nor will a court issue an advisory opinion where there is no genuine adversity or dispute between the parties, N.J. Ass'n for Retarded Citizens, Inc. v. N.J. Dep't of Human Servs., 89 N.J. 234, 241 (1982), or where the controversy has become moot. Bd. of Educ. of Sea Isle City v. Kennedy, 196 N.J. 1, 18 (2008). Moreover, an order consented to by the parties is not appealable. Winberry v. Salisbury, 5 N.J. 240, 255 (1950).
Although jurisdiction is not here in issue and the matter appears ripe for resolution, we are of the view that the court was under no obligation to execute the proposed consent order merely because all the parties mutually agreed to it. Indeed, the court's withholding of approval was all the more appropriate in this instance given its expressed reservation over the sufficiency of proof of the son's emancipation. On this score, by way of example, the court detailed additional information, not contained within the four corners of plaintiffs' verified complaint, that would be necessary in determining whether the son has, in fact, moved beyond his parents' sphere of influence, including, most significantly, his financial circumstances. Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (noting that the essential inquiry of emancipation is whether the child has moved "beyond the sphere of influence and responsibility exercised by a parent and obtains independent status of his or her own"). After all, a court being asked to, in effect, adjudicate one's legal status as emancipated, has a duty to satisfy itself that a factual basis for such a determination exists, independent of the parties' agreement.
That said, given the perceived deficiencies of proof, the preferred judicial course would have been to afford plaintiffs the opportunity to prove their allegations rather than summarily dismiss their complaint without a hearing. This procedure was especially warranted in light of plaintiffs' affirmative offer to present testimony and other proof in support of their emancipation application, including the voluntariness of Michael's consent. While the verified complaint in this instance may not have sufficed, in and of itself, to establish the twenty-one-year-old son's emancipation, it nevertheless met the requisites for notice pleading under our court rules to have allowed the parties the opportunity to be fully heard prior to a final disposition of the matter. ...