July 11, 2012
MARIA L. GUARDIOLA, PLAINTIFF-RESPONDENT,
KENNETH J. ELLIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Cape May County, Docket No. FD-05-452-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2011
Before Judges Payne and Hayden.
In this post-judgment matrimonial matter, defendant, Kenneth J. Ellis, appeals from a February 2, 2011 Family Part order denying his motion to emancipate his youngest son and terminate child support. He also appeals from the denial of his request to eliminate certain educational expenses. Defendant argues that because the parties were divorced in New York, the issues of child support and emancipation are controlled by that state's law, where a parent's obligation to pay child support ends when the child reaches twenty-one years of age. We agree and reverse. Because we do not find that the trial judge abused his discretion by including the cost of applying to graduate school as a college expense, we affirm that part of the order.
We discern the following facts from a rather sparse record. In 1997 the parties were divorced in St. Lawrence County, New York. The Judgment of Divorce (JOD) required defendant to pay $100 per week in child support for his four children. It also required him to contribute to the future college education expenses of the children.
Plaintiff and the children have lived in Pennsylvania since 1996 and defendant has resided in New Jersey since 2005. Plaintiff registered the JOD support order in New Jersey in 2006. In an April 27, 2007 order, a New Jersey Family Part judge declared that the three older children were emancipated and ordered defendant to contribute to the college expenses of the youngest child, then eighteen years old. Defendant subsequently made three motions to reduce child support, which were denied without prejudice to defendant submitting adequate proof of changed circumstances.
On January 5, 2011, plaintiff filed a motion to enforce litigant's rights, which requested an order requiring defendant to pay additional arrears for unreimbursed medical and educational expenses. Defendant filed a cross-motion to terminate child support as of his son's twenty-first birthday in November 2010 and to remove from the educational expense arrears the cost of applications to graduate school. The trial judge, relying on New Jersey law, ruled that, as the son was still attending college, he was not emancipated, and defendant must continue to pay support. The judge also ruled that the expenses involved in applying to graduate school could be considered a college expense under the JOD. This appeal followed.
Because the trial judge decided the emancipation issue as a matter of law without a plenary hearing, appellate review is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Thus, the trial court's legal conclusions are not "entitled to any special deference." Ibid.
On appeal, defendant contends that the judge should have ended child support payments because under New York law a child is automatically emancipated at the age of twenty-one. Plaintiff argues that since the JOD required defendant to pay a portion of the children's college education expenses, child support should continue until the son completed college, which was anticipated to occur in June 2011.
This case involves the Uniform Interstate Family Support Act (UIFSA), N.J.S.A. 2A:4-30.65 to -30.123. UIFSA is a model act adopted by the National Conference of Commissioners on Uniform State Laws at the behest of Congress in 1992 and revised in 1996. Marshak v. Weser, 390 N.J. Super. 387, 390 (App. Div. 2007). Congress subsequently required all states to enact UIFSA as a condition for receiving certain federal funds. 42 U.S.C.A. § 666(f) (2012). The purpose of the mandate of uniformity is to establish means to enforce a child support order when a party moves from the issuing state and to establish consistent ground rules for modifying such orders to avoid conflicting orders from different states. Philipp v. Stahl, 344 N.J. Super. 262, 277-78 (App. Div. 2001) (Wecker, J., dissenting), rev'd on dissent, 172 N.J. 293 (2002).
Under New Jersey law, while there is a rebuttable presumption that a child is emancipated when he reaches the age of eighteen, N.J.S.A. 9:17B-3, there is no fixed age when emancipation occurs. Gac v. Gac, 186 N.J. 535, 542 (2006). "[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)). If a child is dependant on his parents because he is attending college, a judge may decline to emancipate him or her. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). Thus, if this case were controlled by New Jersey law, the trial judge would have been correct that the son was not automatically emancipated when he reached the age of eighteen.
In contrast, New York law provides a fixed age for the emancipation of children. Winokur v. Winokur, 819 N.Y.S.2d 282, 284 (App. Div. 2006). Parents must support a child not otherwise emancipated up to the age of twenty one. N.Y. Fam. Ct. Act § 413.1a (2012). Once a child has reached twenty one, a parent is no longer liable for support unless there has been an express prior agreement between the parents to provide support past this age. Winokur, supra, 819 N.Y.S.2d at 284; Poli v. Poli, 730 N.Y.S.2d 168, 170-71 (App. Div. 2001); Cohen v. Cohen, 687 N.Y.S.2d 726, 727 (App. Div. 1999); N.Y. Fam. Ct. Act § 413.1(h). The fact that a child is attending college does not affect the termination of the parent's support obligation when the child reaches the age of twenty one. Poli, supra, 730 N.Y.S.2d at 170 ("a parent is not liable for the support or college expenses of a child who has reached the age of 21 unless there is an express agreement to pay such support").
Under the UIFSA, the duration of child support for a particular child is controlled by the law of the first state to address his or her support. N.J.S.A. 2A:4-30.107a reads in pertinent part: "The law of the issuing state governs the nature, extent, amount, and duration of current payments and other obligations of support and the payment of arrearages under the order." A registered order may be modified under certain conditions, including, as is the case here, where none of the parties or children live in the issuing state, the petitioner is a non-resident, and the respondent lives in New Jersey. N.J.S.A. 2A:4-30.114a. However, even when a modification is permitted, "[a] tribunal of this State may not modify any aspect of a child support order that may not be modified under the law of the issuing state." N.J.S.A. 2A:4-30.114c. Accordingly, a court in this State cannot require a child support order to exist for a longer duration than is permissible in the issuing state. Marshak, supra, 390 N.J. Super. at 392 (where Pennsylvania law terminates child support obligation at eighteen, New Jersey court cannot modify support order to require father to continue to support eighteen-year-old attending college).
Here, based upon the JOD's provision for defendant to pay weekly $100 child support, there can be no dispute that New York was the first state to issue a support order. Thus, in conformity with the UIFSA, New Jersey cannot modify any aspect of child support not modifiable in New York. As in New York, absent an express agreement by the parties, a child is emancipated on his twenty-first birthday, this State may not modify that limitation. See Marshak, supra, 390 N.J. Super. at 392-93. We find, as we must, that the child support and emancipation issues were governed by New York law and defendant's motion should have been granted. Accordingly, we reverse the trial court's order denying defendant's request to emancipate his son and terminate child support as of his son's twenty-first birthday.
Defendant's remaining arguments are not sufficiently meritorious to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009). We find that the trial judge did not abuse his broad discretion in determining to include the cost of applying to graduate school as part of the educational expenses subject to reimbursement by defendant. Accordingly, we affirm that part of the order.
Affirmed in part and reversed in part. Remanded to the trial court for the entry of an order in conformity with this opinion. We do not retain jurisdiction.
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