August 13, 2012
JAMES ANDREW BRIDGE, PLAINTIFF-APPELLANT,
SHELDA ELISABETH MAIER, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-45744-92.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 24, 2012
Before Judges Lihotz and Baxter.
In these appeals calendared back to back and combined for purposes of this opinion, plaintiff James Bridge appeals from various Family Part orders requiring him to pay child support and college expenses. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
Plaintiff's briefs are rambling and confusing as they do not comply with the procedural rules governing appellate practice. See R. 2:6-1; R. 2:6-2 (setting forth with specificity the requirements of appellate briefs and appendices). Defendant Shelda Maier responds only to A-4766-10. In her brief, she does not specifically address plaintiff's challenges to the March 4, 2011 order from which the appeal is filed. Instead, she asserts procedural bars preclude relief and maintains the motion judge reasonably exercised his discretion when entering the order under review
The parties were married and have two children, who were born in 1988 and 1990. A final judgment of divorce dissolved the marriage on March 28, 1995, and provided for the support of the children. At some point, the parties agreed to contribute to the older child's college expenses, 37% by plaintiff and 63% by defendant.
In 2007, the parties also agreed to emancipate their older child, who was then nineteen. Other orders were entered fixing child support for the younger child, who was in the process of matriculating in college. At that time, the older child reentered college and defendant requested the Family Part unemancipate the older child and calculate the appropriate amount of plaintiff's financial support. She also sought an order fixing plaintiff's contribution toward the college expenses of the younger daughter.
On February 9, 2010, the Family Part judge granted defendant's motion, declaring the older child unemancipated. The judge ordered plaintiff to pay child support of $53 per week for the two children, as of November 18, 2009, and to pay 37% of each child's "college expenses." Plaintiff moved for reconsideration, which was denied on September 15, 2010.*fn1 An order dated September 24, 2010 determined plaintiff's outstanding college expense obligation totaled $16,157.68, which was ordered collected by Probation Services at the rate of $150 per week.
On appeal (A-0989-10), filed October 25, 2010, plaintiff challenges the Family Part orders dated February 9, and September 15 and 24, 2010. He argues the motion judge erred (1) in declaring the older child unemancipated at age twenty-one, while enrolled in Navy ROTC; (2) in failing to consider plaintiff's change in financial circumstances when fixing child support and his share of college expense contributions; (3) in not enforcing post-divorce agreements requiring defendant to communicate with him prior to selecting the younger child's college and to communicate prior to incurring any other debt for which he will be responsible; and (4) requiring the college expenses to be collected by Probation Services, which resulted in an income tax intercept that violates his current wife's right to receive her share of their joint income tax refund.
Our review of these issues is thwarted by an incomplete record. Plaintiff does not include the motion papers and his appendix comprises various documents, the origin of which is unclear. Also, no transcript of the motions exists as the court entered its findings and conclusions without oral argument.
Clear standards guide our limited review. We "'do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). See also Cesare v. Cesare, 154 N.J. 394, 413 (1998) (stating that family court factfinding warrants deference because family courts have "special jurisdiction and expertise in family matters"). However, we confer no deference to a trial court's interpretation of the law, which we review de novo to determine whether the judge correctly adhered to applicable legal standards. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").
A determination of emancipation is a legal concept, imposed when the fundamental dependent relationship between parent and child ends. It is not automatic and emancipation "need not occur at any particular age . . ." Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). Once a child reaches the age of majority, now eighteen, N.J.S.A. 9:17B-3, a parent has established a "prima facie, but not conclusive, proof of emancipation." Newburgh, supra, 88 N.J. at 543 (citing Alford v. Somerset Cnty. Welfare Bd., 158 N.J. Super. 302, 310 (App. Div. 1978)). See also Limpert v. Limpert, 119 N.J. Super. 438, 440 (App. Div. 1972). Nevertheless, "in appropriate circumstances, the privilege of parenthood carries with it the duty to assure a necessary education for children." Newburgh, supra, 88 N.J. at 543.
Deciding whether a child is emancipated requires a fact-sensitive analysis. Ibid. "[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)).
When examining parental support obligations, the possibility of declaring a child unemancipated, even after a period of emancipation is also fact sensitive. The presumption of emancipation may be overcome by evidence that a dependent relationship with the parents continues due to the needs of the child. Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006). Often times following secondary school, a child may delay commencing higher education pursuits requiring a court to examine the hiatus, the reason for delay after his graduation from high school, and the reasonableness of imposing a parental obligation to pay support for a previously emancipated child. See Sakovits v. Sakovits, 178 N.J. Super. 623, 631-32 (Ch. Div. 1981).
In this matter, aside from plaintiff's argument that the older child was financially self-sufficient, the record contains nothing to suggest the motion judge's contrary finding was error. In his written statement of reasons accompanying the February 9, 2010 order, the motion judge found the older child "has been a full-time student and continues to return [to defendant's] home during school recesses. Further defendant claims to continue to provide [the child] with clothing and food, both when . . . home and . . . at school."
It is significant that the motion judge entered his determination without prejudice to plaintiff's right to file a motion accompanied by proof of the older child's emancipation. Plaintiff's February 16, 2010 letter to the judge states he included an email authored by the older child, who expressed surprise and disputed defendant's claims, declaring "I am a 21 year[-]old fully emancipated adult who can support [my]self financially." This submission would not result in relief as it fails to comply with the rules governing procedures in several respects. First, it is not a motion. R. 1:6-2(a); R. 1:6-3(a). Second, and more important, in does not include notice to defendant or her counsel. R. 1:6-3(a), (c). Finally, the email, representing the substance of plaintiff's assertions, is not certified as required by R. 1:6-6, making it inadmissible hearsay. N.J.R.E. 802.
Although there is no mention of what occurred following plaintiff's letter submission, we conclude the motion judge was free to disregard it, as permitted by R. 1:2-4(b). This rule provides: "For failure to comply with the requirements of R. 1:6-3 . . . for filing motion papers . . . the court may dismiss . . . or take such other action as it deems appropriate."
In a round of motions filed in September 2010, the judge again addressed the question of whether the older child was emancipated. The motion judge considered plaintiff's claim the older child had enrolled in the armed forces and his challenge to defendant's demonstration of financial need on behalf of the child. Defendant countered these assertions, explaining the child was a full-time college student, in his senior year, participating in the university ROTC program. She attached evidence that she paid for his cell phone and car insurance premiums, and opened her home when the child returned to New Jersey. The motion judge rejected plaintiff's request for emancipation because of the child's full-time college student status. The judge determined participation in ROTC was not the equivalent of being enrolled in the military.
On appeal, plaintiff renews the positions presented before the motion judge, suggesting there is no legal reason to find the older child was unemancipated. He also suggests the older child's civil rights have been violated by the court's declaration absent the child's opportunity to participate in the proceedings. Finally, plaintiff suggests defendant did not request child support for the older child. We reject these arguments as lacking merit. R. 2:11-3(e)(1)(E). We offer these brief comments.
The child's full-time college student status, defendant's proof of payment of claimed expenses on behalf of the older child, and that the child had stayed with defendant during a prior school break were unrefuted. See Ross v. Ross, 167 N.J. Super. 441, 448 (Ch. Div. 1979) (continuing child's support because she was not "considered emancipated until such time as her law school training ends"). Further, the motion judge accurately concluded ROTC enrollment was not equivalent to a full-time armed services commitment. See Bishop, supra, 287 N.J. Super. at 604 (stating a person on active duty with the military or enrolled in one of the service academies is effectively emancipated from their parents for purposes of child support and college expenses). As to whether the request for child support was waived by defendant, we conclude plaintiff has not attached the documents he relies upon; nevertheless the argument is legally insufficient and rejected. Even an explicit waiver agreement cannot vitiate a child's right to support. See L.V. v. R.S., 347 N.J. Super. 33, 41 (App. Div. 2002). Following our review, we find the motion judge's factual determinations were supported by sufficient evidence in the record and the legal conclusions drawn therefrom are sound. Plaintiff's challenge to the order declaring the older child unemancipated is rejected.
Next, plaintiff argues the allocation of college expenses for the younger child must be set aside because he was "wrongfully excluded . . . from the financial decision-making process[.]" He explains the university chosen by the younger child offered no financial aid and no one told him whether loans were sought. Intertwined with these claims is the assertion plaintiff suffered a change in financial circumstances, requiring a reduction in the amount of child support of college contributions he was ordered to pay. We are not persuaded.
Regarding the latter issue, whether a support obligation should be modified based upon a claim of changed circumstances rests within a Family Part judge's sound discretion. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). Accordingly, each and every motion to modify support obligations rests upon its own particular footing and we give due recognition to the wide discretion rightly afforded to the trial judges who deal with such matters. Rolnick v. Rolnick, 262 N.J. Super. 343, 359 (App. Div. 1993).
The record on appeal does not support plaintiff's suggestion he suffered a $6000 diminishment of annual income. Plaintiff attached a 2009 W-2 reflecting annual gross wages of $48,230, and a letter from his employer stating his 2010-2011 school year wages would be $49,570. Although plaintiff's current wife may have suffered unemployment, her diminished income is not considered when determining the support of plaintiff's children. See Hudson v. Hudson, 315 N.J. Super. 577, 582 (App. Div. 1998) (stating a parties' new spouse has no duty to support her spouse's children from a prior marriage).
Finally, plaintiff's suggestion that defendant's financial security does not require his contribution for college expenses or child support is unfounded and contrary to the law. The law imposes an obligation upon parents to support their children, N.J.S.A. 9:17-39, and that child support belongs to the children and not the custodial parent, Pascale v. Pascale, 140 N.J. 583, 591 (1995). Moreover, contrary to plaintiff's assertion, the custodial parent is not required to show hardship to receive an award of child support. Ibid.
We also reject as unfounded plaintiff's argument he had no obligation for college expenses for the younger child because he was not properly consulted regarding the school chosen and the expenses assumed. This issue was addressed in the motion judge's statement of reasons that we understand accompanied the September 15, 2010 order. The judge recited facts including plaintiff's admission he escorted the younger child to several out-of-state colleges and agreed to contribute to the cost of the chosen university, but remarked he could not afford to bear 37% as previously ordered for the older child. After finding defendant's income was more than he earned when the percentage obligation was fixed for the older child, the motion judge ordered plaintiff to pay 37% for the younger child's out of state college costs.
Following our review, we agree the motion judge's factual analysis of fixing plaintiff's percentage share of the younger child's college expenses failed to fully analyze plaintiff's ability to bear 37% of the college costs. Consequently, we vacate the provisions of the September 15 and 28, 2010 orders providing plaintiff's percentage responsibility for college expenses incurred by the younger child and the order for collection of these sums through Probation Services. We remand for further consideration on this issue.
Among the financial considerations to be reviewed when evaluating a parent's obligation to contribute to a child's college expenses are: the amount sought by the child, the ability of the parent to pay that cost, the relationship of the requested contribution to the kind of school or course of study sought by the child, the financial resources of both parents, the financial resources of the child, including assets owned individually or held in custodianship or trust, the ability of the child to earn income during the school year or on vacation, and the availability of financial aid in the form of college grants and loans. Newburgh, supra, 88 N.J. at 545.
Applicable to this matter, the court must examine the amount of the college expense sought; plaintiff's available income and assets; plaintiff's expenses, including child support for both children, and the college costs paid for the older child; plaintiff's household costs, including the need to maintain necessary expenses, such as housing costs, that were shared by plaintiff's wife but which now must be borne significantly by him as a result of his wife's unemployment; the expense, if applicable, for plaintiff's master's program; and defendant's income, assets and expenses. An analysis of the "applicable parental financial flexibility or constraints, allows a court to assess all facets of the child support picture" when considering the Newburgh factors when setting college expenses. Jacoby v. Jacoby, ____ N.J. Super ____ (App. Div. 2012) (slip op. at 13).
We do note the motion judge adequately considered the non-financial factors outlined in Newburgh and specifically rejected plaintiff's contention the child's estrangement relieves him of his obligation. Plaintiff's argument misconstrues the Court's holding in Gac v. Gac, 186 N.J. 535, 546-47 (2006), which emphasized the benefit of communication "before the educational expenses are incurred" but did not suggest disagreement obviates a parent's responsibility for contribution to college costs.
Here, plaintiff was consulted and worked with the child when considering colleges. Plaintiff was not excluded from the process. Plaintiff's objection is the weight of his allocated financial burden. As noted, financial responsibility of plaintiff is remanded for further factual review and determination by the Family Part.
Plaintiff's second appeal (A-4766-10) is from the Family Part's March 4, 2011 order, which relates to the ongoing expense of the younger child's out-of-state college attendance. The matter was presented to the court on defendant's enforcement motion seeking an additional amount, representing plaintiff's share of the most recent academic year's expenses. Plaintiff again challenged his ability to pay the sum, explaining he had borrowed money to satisfy the prior year's $16,157.68 expense and lacked the wherewithal to continue to go deeper in debt. Also, he maintained defendant's superior income and wealth, along with her unilateral decision to allow the child to attend such a costly school, requires her to bear a more substantial burden of these costs. Plaintiff also sought input on decision-making, insisting he is entitled to learn why the child chose to attend the college she chose, even though the determination had been made.
The motion judge ordered plaintiff to pay an additional $5,028.55 for the younger child's college cost. He granted plaintiff's request for copies of the university invoices, but denied his claim for consultation and written communication regarding the younger child's decision-making process and the costs defendant incurred for the older child's expenses when he stays in her home. The judge also denied plaintiff's request for consultation prior to incurring additional expenses, including educational costs.
The arguments presented on appeal are similar to those advanced in A-0989-10. Plaintiff emphasizes the motion judge's failure to consider his inability to pay the ordered college cost. Defendant counters, arguing the motion judge's
determinations fell within the court's reasoned discretion.
We refer to our discussion in this opinion outlining a trial court's obligation when fixing parental obligations for college expenses. The provision in the March 4, 2011 order addressing this issue is also reversed. However, the remaining claims of error, specifically in denying plaintiff's requests for an explanation of how the younger child made her college choice or the expenses incurred for the older child while in defendant's home are rejected as unfounded.
When a Family Part judge makes a decision involving the exercise of discretion, we are obliged to affirm the judge's decision unless the judge's findings are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare, supra, 154 N.J. at 412 (internal quotation marks omitted). "'Judicial discretion connotes conscientious judgment, not arbitrary action; it takes into account the law and the particular circumstances of the case before the court.'" Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007) (quoting Higgins v. Polk, 14 N.J. 490, 493 (1954)). An appellate court should not interfere in the discretion exercised by the judge absent a clear showing by the appellant that the "action of the trial court is plainly erroneous and manifestly a misuse of its discretion." Smith v. Smith, 17 N.J. Super. 128, 133 (App. Div. 1951), certif. denied, 9 N.J. 178 (1952).
Guided by this standard, the denial of plaintiff's requests for "written communication" regarding the thought processes in making the college choice and other expenses was a reasoned exercise of judicial discretion that we will not set aside. We also reject the claim that the income tax intercept violated plaintiff's wife's due process rights. Plaintiff fails to prove plaintiff's spouse, who was unemployed, suffered adversely from the tax intercept. The remaining arguments raised by plaintiff's appeals, but not specifically discussed, are rejected as lacking sufficient merit to warrant discussion in our written opinion. R. 2:11-3(e)(1)(E).
In summary, we affirm the February 9, 2010 order determining the parties' older child was unemancipated and fixing plaintiff's support obligations for that child. We also affirm the discretionary determinations set forth in the March 4, 2011 order denying defendant's requests for certain disclosures. Finally, we reverse the provisions in the September 15, September 28, 2010, and March 4, 2011 orders fixing the percentage of college expense obligations for the parties' younger child allocated to plaintiff. We remand this issue to the Family Part for additional factual findings and consideration of all relevant financial circumstances affecting the college obligation imposed on plaintiff, in accordance with the provisions of this opinion.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.