May 31, 2011
LAURENCE S. NEWMAN, PLAINTIFF-APPELLANT,
LYNDA NEWMAN, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-4568-92.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 8, 2010
Before Judges Grall and LeWinn.
Plaintiff appeals from the September 10, 2009 order denying reconsideration of two orders entered on January 16, 2009, which
(1) denied his motion to declare the parties' daughter emancipated; (2) ordered him to pay defendant $3,336.29 for the daughter's unreimbursed medical expenses; and (3) required him to provide health insurance and life insurance for the daughter's benefit. Although he has appealed only from the order denying reconsideration, we deem it appropriate to consider the merits of the issues generated by the earlier orders, "particularly where, [as here,] those issues are raised in the C[ase] I[nformation] S[tatement]." Fusco v. Bd. of Educ., 349 N.J. Super 455, 461 (App. Div.), certif. denied, 174 N.J. 544 (2002). Plaintiff's "motion for reconsideration . . . implicate[d] the substantive issues in the case." Ibid.
The parties were married in 1985 and divorced in 1994; they have one daughter, Emily*fn1 , born in 1989. They executed a property settlement agreement (PSA) that was incorporated into their judgment of divorce.
The PSA addresses emancipation as follows:
The term "emancipation" shall be defined for purposes of this Agreement as . . . the following:
(i) The child's reaching the age of eighteen (18) years, graduation from high school or graduation from a post-secondary school, including four years of college where the child has attended on a continuous, uninterrupted basis (except for normal school breaks) after graduation from high school, whichever shall last occur;
(iv) The child's obtainment of full-time employment, but excluding full-time employment during normal school breaks while the child is pursuing a regular course of academic study.
The PSA also obligated plaintiff to "provide health insurance coverage for the benefit of the . . . unemancipated child . . . in the same manner and form as existed during the parties' marriage." The parties agreed to "share equally the payment of any uncovered, unreimbursed health-related expenses incurred on behalf of the unemancipated child" as long as defendant continued to receive alimony payments (up to two years after the divorce). Once the alimony payments terminated, the parties agreed that plaintiff would be responsible for 75% and defendant would be responsible for 25% of such expenses.
Plaintiff was also required "to maintain a policy(ies) of life insurance in the sum of at least . . . $250,000 . . . naming the child as irrevocable beneficiary and [defendant] trustee thereof." This obligation was to "abate upon the child's emancipation."
In September 2005, a judge entered an order awarding defendant sole custody of Emily, requiring plaintiff to comply with the health and life insurance requirements in the PSA, and ordering him to reimburse defendant $3,336.29 within seven days; this amount represented plaintiff's share of Emily's then-current outstanding unreimbursed medical expenses.
Emily graduated from high school in June 2007 and enrolled as a freshman at Kutztown University for the 2007 fall semester. She subsequently left Kutztown University and enrolled at the County College of Morris.
In November 2008, plaintiff filed a motion to have Emily declared emancipated as of January 2008 and to eliminate all child support arrears that had accrued as of that date. He certified that Emily had advised him she left Kutztown University due to "her academic failure."
In December 2008, defendant filed a motion to "enforce all previous orders," asserting that plaintiff had failed to comply with the provisions in the September 2005 order. In opposition to plaintiff's emancipation request, defendant certified that Emily did not return to Kutztown University for the 2008 spring semester "due to the fact that she has serious medical ... problems and was unable to handle a full-time college experience." Defendant also contended that because plaintiff "has not met his child support obligations[,]" she was "unable to afford the tuition and fees, due to the fact that [Emily] was not eligible for financial aid until she completed a certain amount of credits." Defendant added that Emily was working "on average . . . [fifteen] hours a week" at a pizzeria, but "her hours ha[d] been cut back further due to the economic climate."
In a reply certification, plaintiff claimed that he was unable to pay the $3,336.29 because of his financial circumstances, stating that he only had his "present employment and nothing else." He asserted that, because of his "past drug addiction" he is unable to obtain life insurance; he did not address the issue of health insurance.
The judge heard oral argument on January 16, 2009, and rendered a decision from the bench. The judge interpreted section 2.3 of the parties' PSA as not requiring that Emily "be a full-time student. It sets forth four years of college, and we're still within that . . . time frame." Even though Emily had left Kutztown University, she had "taken up study" at the County College of Morris, "which she is pursuing." Acknowledging that Emily worked part-time, the judge noted that she still lives with defendant "who supports her." The judge concluded that Emily had not "moved beyond the economic sphere and influence of her parents, which is the general definition of emancipation . . . , nor . . . does her situation meet the definition of emancipation set forth in the agreement, because she is a student, she is going to college, she's not employed full-time."
The judge added the $3,336.29 in unreimbursed medical expenses to plaintiff's child support arrears, to be paid by wage garnishment. The judge granted defendant's requests regarding health and life insurance. He did not address plaintiff's assertion that he was uninsurable. The judge entered two orders reflecting his rulings on that same date.
Plaintiff filed a motion for reconsideration; in a supporting memorandum of law, he claimed that the judge had failed to make "findings of fact or conclusions of law as to . . . [his] ability to comply with either past or present orders." He stated that he had recently been arrested for "drunken driving and driving on the revoked list," and he would "surely be sentenced to a custodial sentence." The legal argument in that memorandum, however, addressed only the issue of emancipation.*fn2
On September 10, 2009, the judge entered an order denying reconsideration. He appended a statement of reasons in which he reiterated his finding that the PSA "does not require that [Emily] be a full-time student[,]" and concluded that "plaintiff fail[ed] to show that the court erred or did not consider relevant evidence. He merely seeks to reargue issues that have been previously raised and decided."
On appeal, plaintiff contends (1) the judge erred in denying his request to emancipate Emily; and (2) there "was absolutely no supporting documentation to sustain defendant's claim for medical reimbursement under the PSA, or that plaintiff was anything but insurable [sic]." Having considered these contentions in light of the record, we conclude they "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(1)(E).
We affirm the judge's denial of emancipation substantially for the reasons set forth in his decision rendered from the bench on January 16, 2009; we are satisfied that those reasons "are based on findings of fact which are adequately supported by [the] evidence." R. 2:11-3(e)(1)(A).
With respect to the unreimbursed medical expenses, plaintiff was ordered to pay the amount of $3,336.29 in September 2005; defendant's December 2008 motion was strictly for enforcement of that order. Presumably, "supporting documentation" was submitted in support of the earlier order. Plaintiff never appealed from the 2005 order.
Finally, plaintiff provided no documentation to support his claimed inability to obtain health insurance coverage for Emily (not for himself), or life insurance for his daughter's benefit. He asserted certain medical/mental health issues, but submitted no proof that he had been rejected for the required insurance coverages as a result of those issues.