On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-339-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Koblitz.
Defendant Stephen T. Tafaro appeals from the July 22, 2011 order denying his application to emancipate his estranged twenty-two-year-old son, who has completed four years of college without graduating. The motion judge denied defendant's application without prejudice and ordered the son to take the maximum credit load allowed by Rutgers University to facilitate his graduation as soon as possible. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for the motion judge to conduct a plenary hearing if the issue of emancipation remains in contention.*fn1
Following a seventeen-year marriage, the parties divorced in 2004. They have two children. Their eldest child, a son, was born in 1989. Their final judgment of divorce incorporates the parties' property settlement agreement (PSA). Defendant has been ordered to pay 75% of the educational costs of his children and agreed in the PSA to pay $485 per week in child support for both children. PSA ¶ 4.
The PSA has two provisions that relate to emancipation. Paragraph 14 states:
The [d]efendant will continue to pay child support so long as the children remain enrolled as full-time students for a period not to exceed four years after graduation from high school. The child support and education costs will be reviewed and adjusted as may be necessary at the time the child's enrollment in college, based on the case of Newburgh v. Arrigo*fn2 and law at the time.
Paragraph 17 states in pertinent part:
The minor children shall be deemed emancipated upon the earliest happening of the following: a) Attaining the age of eighteen years or the completion of four academic years of continuous college education, whichever event last occurs. It being understood that the interruption of a child's education as the result of a substance abuse problem shall not postpone his or her emancipation, notwithstanding the recognition above of substance abuse as a valid medical condition;
The son began college at Rutgers University in September 2007. Due to his poor academic progress, he transferred to Raritan Valley Community College in January 2009. In January 2010, he returned to Rutgers, transferring some, but not all, of the credits he earned while at community college. As of May 15, 2011, the date on which the parties anticipated he would graduate after four continuous years of college attendance, the son remained forty-eight credits shy of graduation.
In his Spring 2011 semester at Rutgers, he earned three C's and a D. The motion judge found the son's "efforts to pursue a college degree to be in good faith despite not graduating in four years because he continued to pursue his education in a cost-effective and, for him, a slightly less competitive environment given his mediocre grades at Rutgers." He also found that the son continued to live with his mother and depended on her for support.
Defendant raises the following issues on appeal:
POINT I: [THE JUDGE] FAILED TO CONSIDER THE PARTIES' PSA, FAILED TO CONSIDER ANY CASE LAW REGARDING THIS DOCUMENT'S WEIGHT AND FAILED TO ACKNOWLEDGE ANY OF THE DEFENDANT'S INFORMATION AND ARGUMENTS ...