On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1181-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Ostrer.
Plaintiff appeals from the trial court's order denying his motion to emancipate his son, and the subsequent order denying his motion for reconsideration. We reverse and remand for a plenary hearing.
The parties were divorced in September 2005 after over nineteen years of marriage. Their son was born in 1990. He graduated from high school in June 2010, at the age of nineteen-and-a-half. He began attending Brookdale Community College in the Fall 2010. Plaintiff paid child support of $271 a week as of January 2009, and $277 effective February 2, 2011, based on cost-of-living adjustments to the child support amount set in the parties' property settlement agreement (PSA).
In September 2010, defendant filed a motion seeking plaintiff's payment of 100 percent of their son's college expenses, although the PSA called for plaintiff to bear sixty percent if their son were enrolled full-time and maintained a "C" average. Plaintiff cross-moved for emancipation effective June 2010, asserting that his son was not attending school full-time. In November 2010, the court denied plaintiff's request for emancipation, finding the child was enrolled full-time. The court also denied the motion to modify the allocation of college expenses and ordered plaintiff to bear his proportional share of those expenses after accounting for scholarships and grants, which apparently covered most or all of the child's expenses. Neither party appealed.
Plaintiff again sought his son's emancipation effective on June 2, 2011, the day he filed his motion. Although he had received his son's schedule of Spring courses, plaintiff asserted that defendant had failed to provide him with the child's Spring grades, as the PSA required, to demonstrate he maintained full-time status with a "C" average. According to his son's Fall 2010 transcript, his son withdrew from his algebra course, and earned only eight credits. The transcript also indicated "erratic attendance and/or excessive absences" for multiple monitoring periods during the semester.*fn1 Plaintiff argued his son therefore was not likely a full-time student.
I can only assume that the Defendant's continued failure to provide me with proof of [our son's] academic progress is a tacit admission that [he] is neither attending school on a full time basis nor maintaining a "C" or better grade point average as required by the clear terms of our Property Settlement Agreement.
He also noted that for the upcoming Fall 2012 semester his son was registered for three of the same classes he had been registered for in the Spring. Plaintiff therefore questioned whether his son completed a full-time course-load in the Spring.
Defendant opposed the motion and cross-moved for other relief, including an order compelling plaintiff to pay his share of their son's medical expenses. She stated in her pro se response that the child suffered from kidney stones and was hospitalized in February 2011 for "a procedure on his kidney that required general anesthesia." Although the PSA conditioned continued support after age eighteen on attendance at college on a full-time basis for four uninterrupted years after high school, it allowed an exception "if such interruption is caused by medical reasons, whichever last occurs."
Defendant also submitted a May 22, 2011 letter from Brookdale Community College to the child stating that his student aid was approved and his "Probation/Appeal has been granted with the stipulation that [he] must earn credit for 100% of courses attempted (No W, F, or NC grades) and earn at least a
The child submitted an unsworn letter to the court,
opposing his father's motion. He stated he withdrew from algebra in the Fall 2010 "from fear of damage to my GPA." He stated his Spring 2011 semester grades "had declined somewhat due to my health, and adjusting to the workload." He asserted that his medical issues continued to present an issue. He also stated that if child support were terminated, he would be forced to work full-time to contribute to his needs. He admitted that he struggled during his second semester, and expressed his regret that his father did not support his efforts, stating, "If he truly were searching to find ...