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Wesley v. Noor

Superior Court of New Jersey, Appellate Division

June 19, 2013

MONTINA WESLEY, Plaintiff-Appellant,
SIDI Y. NOOR, Defendant-Respondent.


Submitted December 17, 2012.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FM-06-0230-06.

Montina Wesley, appellant pro se.

Underwood & Micklin, LLC, attorneys for respondent (John A. Underwood, on the brief).

Before Judges Sabatino and Maven.


Plaintiff Montina Wesley appeals from an order of September 16, 2011, which denied her motion to vacate the April 15, 2011 order that emancipated the parties' son. We affirm.

The relevant facts, as adduced from the record, are as follows. The parties were divorced in South Carolina in December 1998. Their son, T.W.N., born in 1990, was twenty years old at the time of the motion on appeal.

There have been several post-judgment orders addressing custody, child support, college contribution, health and life insurance, and the sharing of other expenses. Following the son's return to plaintiff's New Jersey home from defendant's home and upon plaintiff's motion, the court ordered in November 2008, among other things, the reinstatement of defendant's child support obligation at $333 per week. The Child Support Sole-Parenting guidelines calculation was based upon the 2007 W-2 wages of $34, 651 for plaintiff and $179, 583 for defendant. The percentage share of income, twenty-five percent for plaintiff and seventy-five percent for defendant, was applied to defendant's contribution towards the child's unreimbursed medical expenses, as well as the child's tuition and expenses incurred at Cumberland County College. Plaintiff was required to provide defendant with "all information regarding the child's schooling, including but not limited to grades, course selection, and tuition bills and expenses within a reasonable time."

In July 2009, the court granted defendant's motion for a reduction in child support due a reduction in his income. Defendant asserted that in April 2009, he was laid off from his medical position but became reemployed in a part-time position earning $71, 136 per year. Despite plaintiff's assertions of defendant's failure to substantiate the circumstance regarding the alleged lay-off and failure to establish an inability to earn his full salary, the court granted the reduction finding a significant change of circumstance pursuant to Lepis v. Lepis, 83 N.J. 139 (1980). The court continued defendant's obligation to contribute towards unreimbursed health and college costs at the rate of seventy-five percent in light of defendant's assurances that the reduced income was only temporary.

Next, in December 2010, defendant sought another child support reduction due to changed financial circumstances, this time due to the suspension of his medical license, effective January 2010, for "inappropriately prescribed controlled substances." The court granted the motion against plaintiff by default, noting that "both [defendant's] counsel and the [c]ourt have attempted to serve and give notice to [plaintiff] to no avail. Due to the failure of [plaintiff] to keep in contact with the [c]ourt, the child support obligation will be reduced by fifty percent." The court also reduced defendant's share of contribution towards college expenses to fifty percent.

In March 2011, defendant filed a motion for emancipation and termination of child support based on his belief that the child had not been enrolled as a full-time student since at least December 20, 2010. Defendant asserted that plaintiff refused to provide proof of enrollment, transcripts or full-time status. Upon a determination that proper notice was provided to plaintiff, the unopposed motion was granted, in part. In his statement of reasons dated April 15, 2011, the judge set forth the general rule of law that emancipation does not occur automatically upon a child reaching the age of eighteen. The judge then ruled that

even if said child has reached the age of [eighteen], if he or she decides to attend college[, ] he or she may still be entitled to support from his or her parents. The [c]ourt finds that [T.W.N.] is [twenty] years old and no longer attending college. Therefore, [T.W.N.] shall be adjudged emancipated, effective the date of this application . . . . As always, the court reserves the right to modify this determination if the [mother] of the child appears and disputes the statements and claims of the [father].

Plaintiff filed a motion to vacate the April 15, 2011 order and to reinstate (1) child support to the amount in effect as of March 2011, (2) defendant's seventy-five percent obligation towards college expenses, and (3) to enforce payments on the child's unreimbursed medical expenses and proof of life insurance. Plaintiff first argued that proper notice of the prior motion was not served on her. She claimed that defendant was aware that she did not receive mail at the street address used by counsel and the court for this motion and previous correspondence. She also claimed to have no memory of signing a green card showing proof for certified mail. Next, plaintiff argued that the child, while working part-time, had been attending Cumberland County College since the Fall semester of 2008, missing only the Spring 2010 semester, and was making shaky, yet steady progress towards graduating in Spring 2012. Lastly, plaintiff stressed that defendant lost his medical license due to his intentional and willful misconduct, and child support should not have been modified on that basis. Defendant filed an opposition to this motion.

At the hearing, the judge considered the parties' arguments but maintained that plaintiff had not established that vacating the prior order was warranted. The judge stressed that the decision to emancipate was not based on defendant's income, but rather on the child's lack of progress. Noting that the child was in his seventh semester in a two-year school, the judge stated

the [c]ourt is not going to make the Dad continue to pay child support for a child who is, on the [c]ourt's perception, not making progress at an appropriate rate of speed to justify me requiring Dad to continue to pay child support as though the child were still in high school . . . .
I recognize that I [emancipated the child] under the circumstances as they exist, but if the child makes reasonable progress in school that does not mean that another application cannot be made . . . .

In the written order, the judge stated:

Here, with all due respect, this child's progress in school is not at what might be called a "normal course." I[f] he is attending Cumberland County College in the Fall of 2011 – it is his fourth Fall semester in a normally two-year school. He has taken at least one semester (Spring of 2010) off. The court cannot in good conscience require DAD to keep paying support for going on four additional years while the child takes twice as long to complete a program than normal.

The judge also denied plaintiff's requests to reinstate child support, require defendant to continue providing health and life insurance, or pay towards the unreimbursed expenses. Plaintiff and child were ordered to keep defendant informed of the child's continued progress in school. This appeal followed.

Plaintiff's sole contention on appeal is that the court erred in granting emancipation and terminating child support when the child was attending community college on a full-time basis and making satisfactory progress.

"The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact[-]finding." Id. at 413. "[I]n reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the trial court's credibility determination[s] and the judge's feel of the case based upon his or her opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J.Super. 81, 88 (App. Div. 2006) (citing Cesare, supra, 154 N.J. 394, 411-13 (1998)), certif. denied, 190 N.J. 257 (2007) (internal quotation marks omitted); see also N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). The trial court's "'feel of the case' . . . can never be realized by a review of the cold record." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).

We have thoroughly reviewed the record in light of the arguments advanced by the parties. We are satisfied that the judge did not abuse his discretion by denying plaintiff's motion. We affirm substantially for the reasons stated by the trial judge in his written decision dated September 16, 2011. We add the following brief comments.

The presumption of emancipation at age eighteen is a rebuttable one. Filippone v. Lee, 304 N.J.Super. 301, 308 (App. Div. 1997). A critical review of the facts and circumstances of the child must be made. See N.J.S.A. 9:17B-3. To determine emancipation, the court must analyze all facts to determine 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.'" Lee, supra, N.J.Super. at 308 (quoting Bishop v. Bishop, 287 N.J.Super. 593, 598 (Ch. Div. 1995)). The court finds emancipation is reached "when the fundamental dependent relationship between parent and child is concluded, the parent relinquishes the right to custody and is relieved of the burden of support, and the child is no longer entitled to support." Ibid.

Although parents generally do not have a duty to support their children beyond the age of majority, certain exceptions are well established, such as contribution to college costs, the exception at issue in this case. Weitzman v. Weitzman, 228 N.J.Super. 346, 356-57 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989).

Here, the judge, who had presided over these post-judgment motions since 2010, had a particularized knowledge of the parties and the attendant facts in this case. It is clear from the record that the judge reviewed the documents provided by plaintiff and patiently heard her argument at the hearing. Although plaintiff explained that her son was hoping to graduate in Spring 2012, the judge determined that the child had taken too long to complete a two-year program. Ultimately, the judge found that the information provided was insufficient to establish the critical showing that their son was making sufficient progress in Cumberland County College to warrant the continued contribution toward college expenses and the payment of child support. However, the judge advised plaintiff that she or her son could seek support in the future if the son's performance markedly improved. We see no abuse of discretion and therefore will not disturb his findings.

Plaintiff next contends that defendant is obligated to pay child support and contribute to their son's health insurance coverage. It is well settled, however, that a child's emancipation terminates a parent's child support obligation. Lee, supra, 304 N.J.Super. at 308. Because the parties' son has been emancipated, defendant is no longer obligated to pay child support, including insurance coverage. Having reviewed the record, and given the judge's "feel of the case, " we affirm.

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