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Seligman v. Pellen

Superior Court of New Jersey, Appellate Division

September 30, 2013

STACEY SELIGMAN, f/k/a/ STACEY PELLEN, Plaintiff-Appellant/ Cross-Respondent,
JAMES S. PELLEN, Defendant-Respondent/ Cross-Appellant


Argued September 17, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-479-97.

David S. Rochman argued the cause for appellant/cross-respondent.

Jennifer Weisberg Millner argued the cause for respondent/cross-appellant (Fox Rothschild LLP, attorneys; Ms. Millner, of counsel and on the brief; Eliana T. Baer, on the brief).

Before Judges Sabatino and Hayden.


In this post-judgment matrimonial dispute, defendant James Pellen ("the father") and plaintiff Stacey Seligman ("the mother") each appeal certain decisions rendered by the Family Part concerning child support, emancipation, and counsel fees. For the reasons we explain, infra, we remand this matter for a plenary hearing concerning the issue of emancipation of the parties' older son and also for a reexamination of child support and counsel fees.


The parties were married in 1986. They have four children together: an older son born in October 1988, an older daughter born in February 1990, a younger daughter born in July 1993, and a younger son born in December 1995.

The parties, both of whom were then represented by counsel, entered into a consensual Final Judgment of Divorce ("FJOD") on August 31, 1998. As part of the FJOD, the mother continued to have residential custody of the four children, with parenting time provided for the father. Both parties waived alimony.

At the time of the divorce, the father was employed with an accounting firm in New York City and the mother was employed in New Jersey with a financial services firm. For purposes of the child support calculation at that time, the father's gross annual earnings were agreed to be $120, 000 and the mother's earnings were agreed to be $25, 000.

The parties agreed in the FJOD that the father's child support obligation for the four marital children would be $3, 800 per month. This support amount was divided into two distinct components. The first $2, 150 component of the total monthly amount was referred to as the "basic portion" of the father's support obligation, and was calculated using the New Jersey Child Support Guidelines ("the Guidelines"). See Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A and IX-B to R. 5:6A at 2579, 2603 (2014). The other $1, 650 component of the total monthly amount was referred to as the "additional portion" of the father's total support obligation. As set forth in the FJOD, the father agreed to pay that additional portion because the parties "recognize[d it] as necessary in order that the [mother] may pay for work-related child care for the children and also in order that she may continue to maintain for the children their current lifestyle."

The FJOD addressed the instances in which modification of the father's child support obligation might be appropriate. Specifically, the FJOD stated that the father's basic portion of his child support payment could be modified in the "event of a change in circumstance" such as "the emancipation of any child as that term is defined under New Jersey law." The additional portion of the father's support obligation would be subject to modification only "upon the emancipation or entry into college of any child, whichever occurs first." Upon the occurrence of one of these two conditions, the father's child support obligation was to decrease by $412.50 per month, per child.[1]

The FJOD further addressed college costs for the four marital children. Subject to a cap at amounts equal to the costs of comparable items for an undergraduate degree at Rutgers University, the father agreed to be responsible for all payments relating to tuition, housing, and book expenses that the children accrued in the course of pursuing undergraduate college degrees. However, the father's responsibility under the FJOD for these post-secondary education expenses was conditioned upon the child entering college within one year of graduating from high school; if the child entered college directly from high school, he or she was permitted to take up to one year off. When a child returned to school after such a one-year hiatus, the father's obligation to pay the associated educational costs would resume. In sum, the FJOD provided that "the [father's] obligation to pay for college education [was not to] continue more than five years after the child's graduation from high school, unless the child's education was interrupted by the military draft."

The post-judgment motion practice in the Family Part that prompted the mother's appeal and the father's cross-appeal arose out of circumstances stemming from several events, including a dramatic and sustained rise in the father's income and, as a separate development, the college educations of the three oldest children. As of the time of the motion practice in 2012, the father's monthly child support obligation had increased from $3, 800 to $3, 978, as the result of cost of living adjustments.

In June 2012, the father moved to reduce his court-ordered child support obligation due to several alleged changes in circumstances. Among other things, the father asserted that both the older daughter and the older son should be emancipated and thus removed from the support calculation. The older daughter had completed college in 2012, and thereafter began working full-time, facts which the mother does not dispute. The older son had discontinued his former full-time studies at Rutgers University. According to the father, the older son had started a full-time job while enrolling for an unspecified number of credits in a culinary program in Philadelphia, and the father was paying the $15, 000 annual tuition to that culinary school. The father also certified that he was paying $37, 800 in tuition for the younger daughter to attend George Mason University. The younger son, meanwhile, was still in high school.

The father acknowledged that his annual gross income with his firm had risen to approximately $788, 000, or about $575, 000 after taxes. However, he certified that he had shared his good fortune with his children by paying for various additional items, including a leased car for the older son, a new car for the older daughter, a used car for the younger daughter, automobile insurance, cell phone expenses, credit card purchases, furnishings for the older daughter's apartment, and other items. The father stated that such separate payments to, or on behalf of, the four children, apart from the child support he was paying the mother, totaled $130, 754 in 2010; $149, 669 in 2011; and $81, 429 for the first five months of 2012. In essence, the father contended that, as a result of these voluntary payments, he was paying duplicative sums for expenses that typically would be within the child support budget for a custodial spouse.

The mother cross-moved for an increase in the child support payable to her, mainly because of the father's substantial increase in his earnings and his enhanced ability to pay. In her own certification, she acknowledged that the older daughter should be emancipated. However, she opposed emancipation of the older son, attesting in her certification that the child was enrolled at the Art Institute of Philadelphia "as a full-time student and liv[ing] at home."

The mother conceded that the father had been voluntarily making direct payments to the children, or payments on their behalf, for various items such as tuition, vehicle costs, healthcare, clothing, travel, and the like. More specifically, she acknowledged in her certification:

For the record, the children have grown accustom[ed] to their father's income and the benefits derived there from. Most particularly and in no particular order, we reside in a home in an excellent school district, as a result of that which we were receiving from that of the [father]. He has excellent medical care which provided the children(s) well/sick visits, dental visits/orthodontic visits, Rx and copays, mental health access, driving lessons, clothing, shoes, salon visits, manicures, pedicures, summer overnight camp, school supplies, tutors, health club memberships, tennis lessons, senior class trips, proms, dress, tuxedo, flowers, limo, prom activity, yearbooks, trips to Israel, travel abroad, college expenses, care packages, social activities, glasses, contacts, involvement in youth group, Synagogue memberships, and birthday parties. All of which, were and have been afforded to that of the children as a result of the [father's] extraordinary income.

Nonetheless, the mother contended in her cross-motion that despite the additional expenses that the father was voluntarily undertaking in support of his children, his monthly court- ordered child support payment should be increased from $3, 978 to approximately $9, 000 monthly, due to the large increase in salary he had received since the time that the parties originally entered into the FJOD in 1998. However, the mother did not identify specific needs of her children that were not being met under the extant arrangement, nor did she provide any documentation substantiating such needs.

After considering the parties' written submissions, the motion judge issued a tentative written decision that proposed to emancipate the older daughter by agreement and also reduce the father's child support payable to the mother by twenty-five percent to reflect that child's emancipated status. The tentative decision did not call for any other decrease (as the father had requested), nor any increase (as the mother had requested) in the monthly support level payable to the mother. Instead, the judge proposed that the father "continue to pay all expenses he [c]ertifies to currently pay directly to the children, [u]niversities, or companies regarding the children's expenses." The judge's tentative decision also declined to emancipate the older son.

The mother objected to the court's tentative decision, insofar as it proposed to deny her claim for increased child support. The father, in turn, objected to the proposed ruling to deny emancipation of the older son.

After hearing oral argument from both counsel, without any sworn testimony, the motion judge adopted his tentative decision in all respects. The court issued a related order on September 24, 2012, which implemented the oral decision and, in particular, lowered the monthly child support from $3, 978 a month to $2, 983.50 for the three unemancipated children. The order contained a discussion explaining why the court had denied emancipation of the older son. The court also denied each side's request for counsel fees. The court amplified its analysis in a corresponding letter opinion on November 1, 2012, which tracked the tentative ruling on child support. Among other things, the opinion noted that the mother's request for increased child support represented a "thinly veiled attempt to receive alimony disguised as child support" because the mother "was unable to articulate any need of the children that has not been met by [the father]."

On appeal, the mother contends that the motion judge erred in denying her request to increase the child support payable to her for each of the three unemancipated children. She asserts that the judge did not fairly consider her proposed monthly budget and, in essence, has improperly allowed the father to make unilateral decisions about what additional lifestyle benefits the children will receive as a result of his dramatic increase in earnings. She also appeals the denial of her counsel fee request. The father cross-appeals, arguing that the court erred in declining to emancipate the older son. The father has not cross-appealed the denial of his request to decrease child support beyond the twenty-five percent reduction associated with the older daughter's emancipation. Nor has the father appealed the counsel fee ruling.


The general principles that guide our analysis are well-established. A party seeking modification of a child support obligation "has the burden of demonstrating a change in circumstances warranting an adjustment." Jacoby v. Jacoby, 427 N.J.Super. 109, 116 (App. Div. 2012) (citing Lepis v. Lepis, 83 N.J. 139, 157 (1980)). One such example of a change in circumstances that has been found to warrant modification is an "increase or decrease in the supporting spouse's income." Lepis, supra, 83 N.J. at 151 (citing Martindell v. Martindell, 21 N.J. 341, 353 (1956)). Additionally, "the custodial parent bears the burden of establishing the reasonableness" of the requested expenses. Accardi v. Accardi, 369 N.J.Super. 75, 88 (App. Div. 2004) (citing Isaacson v. Isaacson, 348 N.J.Super. 560, 579 (App. Div.), certif. denied, 174 N.J. 364 (2002)).

Our scope of review of such child support determinations is limited. A trial court's decision granting or denying an application to modify child support generally will be examined under an abuse of discretion standard. Larbig v. Larbig, 384 N.J.Super. 17, 23 (App. Div. 2006). "'The trial court has substantial discretion in making a child support award. If consistent with the law, such an award will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence or the result of whim or caprice.'" Jacoby, supra, 427 N.J.Super. at 116 (quoting Foust v. Glaser, 340 N.J.Super. 312, 315-16 (App. Div. 2001)).

The principles that govern emancipation of a child are also well-settled. A child's attainment of the age of eighteen creates a rebuttable presumption of his emancipation. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982); Filippone v. Lee, 304 N.J.Super. 301, 308 (App. Div. 1997). The main inquiry in an emancipation case is whether the child in question has moved "beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own." Dolce v. Dolce, 383 N.J.Super. 11, 17-18 (App. Div. 2006) (citations omitted). This determination is ordinarily fact- specific, and "involves a critical evaluation of the prevailing circumstances including the child's need, interests, and independent resources, the family's reasonable expectations, and the parties' financial ability, among other things." Id. at 18 (citing Newburgh, supra, 88 N.J. at 545).

Bearing in mind these principles, it is readily apparent that this matter must be remanded for further consideration by the Family Part, particularly for a plenary hearing to resolve the disputed factual issues relating to the father's request to emancipate the older son. In addition, regardless of how that emancipation issue is resolved after the plenary hearing, there are aspects of the child support calculus that warrant closer examination.

The father contends that the older son should be legally emancipated because he was twenty-three years old at the time of the motion (and will soon turn twenty-five in October 2013); works full-time as a culinary employee with an alleged annual salary of approximately $23, 000; supposedly attends school only part-time; and supposedly does not live at the mother's residence most of the week because of his work commitments. Further, the father asserts that the older son's employer provides meals at work, and that the son uses his earnings from his job for "personal food, clothing and social needs." The mother's certification largely disputes these contentions, asserting that the older son is enrolled in the Philadelphia school full-time, not on a part-time basis, and that he principally resides at her home.

Neither party supports his or her assertions concerning the older son's status with any documentation, such as tuition bills and registration materials for the culinary school, cancelled checks, or pay stubs. Nor is there a certification from the older son himself attesting to his actual status as a full-time or part-time student, or full-time or part-time employee, where he primarily resides, and how often he stays in his mother's home. Given this dearth of supporting documentation, and the gaps in the record, it was inappropriate for the motion judge to decide the emancipation issue based on the parties' conflicting certifications without a plenary hearing. Conforti v. Guliadis, 128 N.J. 318, 322 (1992); Eaton v. Grau, 368 N.J.Super. 215, 222 (App. Div. 2004).

The actual level of enrollment and attendance that the older son is committing to his post-secondary studies is a legally significant factor in deciding whether he is, in fact, still sufficiently within the "sphere of influence" of his mother as the designated custodial parent. Dolce, supra, 383 N.J.Super. at 17-18. In Patetta v. Patetta, 358 N.J.Super. 90, 94 (App. Div. 2003), we observed that "while parents are not generally required to support a child over eighteen, his or her enrollment in a full-time educational program has been held to require continued support." (citing Newburgh, supra, 88 N.J. at 543) (emphasis added). It is true that a child need not necessarily maintain a full-time course load in order to forestall an emancipation request. See Keegan v. Keegan, 326 N.J.Super. 289, 295 (App. Div. 1999) (holding that a child's hiatus from college during which she maintained full-time employment did not require emancipation); Sakovits v. Sakovits, 178 N.J.Super. 623, 631-32 (Ch. Div. 1981) (finding that emancipation should not follow a "brief hiatus" between high school and college). Here, in fact, the parties planned for such a hiatus of up to one year in the FJOD.

However, in any request for emancipation based upon a child's post-secondary educational status, the trial court must still conduct the relevant fact-specific analysis above in order to determine whether the child is outside of his parent's sphere of influence. See, e.g., Patetta, supra, 358 N.J.Super. at 93-94 (finding that the demonstrable needs of the child are determinative of a parent's duty to support). In Patetta, the court declined a father's request to emancipate his eighteen-year-old son, despite the language of the parents' property settlement agreement, because the undisputed facts showed that the son was "living at home and dependent on his parents for his basic needs and proper support while attending college on a full-time basis." Id. at 95-96. Here, the older son is allegedly earning $23, 000 annually from his employment, and also allegedly receiving meals and other benefits from his employer, which may be some indicia of independence. On the other hand, the son appears to be receiving substantial direct and indirect financial support from the father for automobile and other expenses, which may be suggestive that he has not yet achieved sufficient independence to be considered outside the sphere of his parents' influence.

The motion judge resolved these questions in the September 24, 2012 order by factually concluding that the older son "is attending school and working full time." The judge made no explicit finding concerning whether the son's enrollment at school is full-time or part-time, and it is unclear from the sentence quoted from the order whether the modifier "full time" was intended to cover only the term "working, " or instead the combined phrase "attending school and working." The order also recites that the older son "continues to reside with [the mother]" and does not address the father's competing claim that the son actually resides primarily in Philadelphia, and only stays overnight occasionally at his mother's house.

At oral argument on the appeal, the mother's counsel acknowledged that a plenary hearing is appropriate to resolve the factual disputes underlying the emancipation issue. The father's appellate brief likewise acknowledges that the emancipation issue should not have been resolved on the basis of conflicting written submissions. We consequently remand this matter for such a plenary hearing, if the issue is not amicably resolved by the parties in the meantime.

Because the status of the older son's emancipation remains uncertain, the appropriate child support level consequently cannot be finalized at this time. That said, we do have some concerns about the motion judge's support analysis that should be examined anew on remand.

In his letter opinion, the motion judge observed that "it was in the best interest of the children to maintain the status quo . . . it [was] unreasonable to change a situation that from the best interest of the children's perspective, was working." The judge explained that this case was "not a [G]uidelines case" because the father's income far exceeded $187, 200. The judge applied the Guidelines up to the ceiling for the two children apparently living at home, i.e., the two sons, while the younger daughter mainly resides at her out-of-state college. In addition, the judge determined a supplemental award by endeavoring to apply the factors outlined in N.J.S.A. 2A:34-23a. Upon completing this analysis, the court determined that the father would be required to:

continue to pay a child support obligation to [the mother] reduced due to [the older daughter's] emancipation, and [the younger daughter's] status as a college student living at school and . . . would be required to continue to pay for the children's expenses that he voluntarily assumed and certified that he would continue to pay.

Although we appreciate the motion judge's effort to avoid disrupting an arrangement that provides the children with substantial direct and indirect benefits from their father, we have concerns that converting those payments into court-ordered obligations does not adequately take into account the mother's role as the primary custodial parent. The mother equitably should have some voice in what court-ordered supplemental activities and benefits are being subsidized for the unemancipated children. In addition, the mother provides the primary residence for the unemancipated children. It is unclear whether the amount she receives through what is substantially Guidelines-based child support is still appropriate, in light of the father's six-fold spike in income and the children's right to share appropriately in the benefits of such enhanced family resources without spoiling them See Issacson supra 348 N.J.Super. at 584

We wholeheartedly concur with the motion judge that the mother should not be awarded in disguised form alimony which was clearly waived mutually in the FJOD Even so in keeping with Isaacson and related case law the children should be allowed in a fair and appropriate manner to "share in the other parent's financial gain" See Walton v Visgil, 248 N.J.Super. 642 650 (App Div 1991) We suggest that be accomplished not only through the father's decisions and largesse to provide the children with such enhancements but also perhaps through a larger per-capita child support level that would afford the mother a modicum of greater discretion in improving the children's lifestyles herself

We further observe that the judge's decision to decrease child support by twenty-five percent of the full support amount because of the older daughter's agreed-upon emancipation does not seem to comport with the formula prescribed by the FJOD which called only for a twenty-five percent reduction in the "additional support" component and not the "basic portion" This apparent discrepancy also should be reexamined on remand

The matter is therefore remanded for further proceedings consistent with this opinion In the meantime the terms of the September 24, 2012 order shall continue to be enforced, subject to the ultimate outcome of the remand. Any request for counsel fees incurred at the trial level, on both the original motion practice and on remand, as well as the fees incurred on the present appeal, shall abide the outcome of the remand. See R. 2:11-4. The counsel fee issue shall be decided in the first instance by the motion judge. The judge shall have the discretion to revisit his prior ruling as to fees, and to order whatever supplemental discovery or briefing on any issues he or she may deem appropriate. We do not retain jurisdiction.

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