JOHN H. CONWAY v. JUDY M. CONWAY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0075-05T10075-05T1

JOHN H. CONWAY,

Plaintiff-Respondent,

v.

JUDY M. CONWAY,

Defendant-Appellant.

____________________________________________________________

 

Submitted May 2, 2006 - Decided August 23, 2006

Before Judges R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, FM-08-249-03.

Stacy L. Spinosi, attorney for appellant.

Adinolfi and Spevak, attorneys for respondent (Rachel B. Costello, on the brief).

PER CURIAM

Defendant, Judy M. Conway, appeals from an August 19, 2005, order of the Family Part, Gloucester County, resolving certain financial disputes between her and plaintiff, John H. Conway. Specifically, defendant appeals from (1) a determination that their daughter was emancipated; (2) a downward modification of plaintiff's support obligation; (3) the court's failure to impose sanctions upon plaintiff; and (4) an order to pay certain of plaintiff's counsel fees and costs. We reverse in part, reverse and remand in part and affirm in part.

The parties were married on March 17, 1979, and their marriage was dissolved by an uncontested divorce on May 21, 2004. They reached agreement on all issues, and the resulting final judgment of divorce provided that plaintiff would pay defendant $318 per week in net unallocated support. The support would continue as agreed until there was a change of circumstance and, in such event, either party could apply for modification.

The parties have two children, Christopher, born December 11, 1980, who is emancipated, and Jennifer, born August 1, 1984, who is currently a full-time college student. After her parents separated, Jennifer transferred from Orange County Community College in California to a community college in New Jersey. In September 2004, Jennifer enrolled at Drexel University as a full-time student, after an approximate one-year hiatus from college.

In January 2004, plaintiff was notified that if he did not find another job within IBM by February 6, 2004, he would be laid off as of that date. He had worked at IBM for over twenty-five years. On February 4, 2004, plaintiff was, indeed, laid off. As part of his severance package, plaintiff was paid his full salary for six months and was given the option of receiving his defined benefit plan early, which he accepted. His pension income is $1,500 per month.

After he was laid off, plaintiff moved to Florida. He took real estate courses there and obtained his license to sell real estate. In November 2004, he began to work as an independent contractor through a real estate firm in Florida.

Without filing a motion, plaintiff stopped satisfying his full support obligation in August 2004, and a few months later stopped making payments altogether. In March 2005, plaintiff terminated the medical insurance he had carried for Jennifer's benefit. On June 28, 2005, defendant filed a motion seeking, among other things, that plaintiff be held in contempt for failing to comply with the child support provisions in the final judgment of divorce and for failing to contribute to Jennifer's college tuition and expenses. On August 4, 2005, plaintiff filed a cross-motion to reduce or terminate alimony because he had moved to Florida and changed jobs. On August 19, 2005, the court reduced plaintiff's support obligation from $318 per week to $159 per week, denied defendant's request to sanction plaintiff for failure to pay child support, emancipated Jennifer and ordered defendant to pay plaintiff's counsel fees for a July 29, 2005 court appearance.

First, defendant asserts that the court incorrectly emancipated Jennifer. Emancipation of a child occurs "when the fundamental dependent relationship between parent and child is terminated. When a child moves beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status on his or her own, generally he or she will be deemed emancipated." Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995) (emphasis in original). New Jersey law does not fix an age at which emancipation occurs. Youssefi v. Youssefi, 328 N.J. Super. 12, 23 (App. Div. 2000); Wanner v. Litvak, 179 N.J. Super. 607, 612 (App. Div. 1981). N.J.S.A. 9:17B-3 establishes as a presumption that emancipation will occur when a child reaches majority at the age of eighteen, however, that presumption is rebuttable. Weitzman v. Weitzman, 228 N.J. Super. 346, 356 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989).

A determination of emancipation and, thus, termination of a right to parental support is a fact-sensitive matter, requiring a critical evaluation of the circumstances presented by the parties to determine if the child has moved beyond the sphere of parental influence and responsibility and achieved an independent status. Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997). See also Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). When emancipation occurs, a parent is relieved of the duty to support the child. Newburgh, supra, 88 N.J. at 543. However, ordinarily until emancipation occurs, parents remain "charged with their [children's] care, nurture, education and welfare[.]" Weitzman, supra, 228 N.J. Super. at 355 (quoting N.J.S.A. 9:2-4) (first alteration in original).

In Keegan v. Keegan, 326 N.J. Super. 289, 294-95 (App. Div. 1999), this court held that the trial court properly declined to emancipate defendant's daughter, Lea. Lea had taken time off from being a full-time college student in December 1996. Id. at 294-95. Her cumulative GPA at that time was 2.36. Id. at 295. Lea became employed full-time on a temporary basis from January through June 1997. Ibid. She then obtained another full-time job from June 1997 through June 1998. Ibid. Lea's annual salary was $20,000 and neither of her parents were able to claim her as a dependent on their tax returns. Ibid. We agreed with the trial judge's observation that "courts today hold that 'a brief hiatus between high school and college is commonplace,' such that 'a child's right to parental contribution to college should not be summarily determined.'" Ibid. In spite of the child's brief hiatus from educational pursuits, we concluded the trial judge's application of the facts of the defendant's emancipation claim to the Newburgh factors was proper.

In Glass v. Glass, 366 N.J. Super. 357, 372 (App. Div.) certif. denied, 180 N.J. 354 (2004), we recognized that a PSA between the parties is a "contract upon dissolution" that is "entitled to significant consideration." We have observed that "there is a strong public policy favoring stability of consensual arrangements for support in matrimonial matters[.]" Ibid. (citations omitted). The overall analysis regarding whether or not to modify a PSA is one of equity. As we observed in Glass:

In determining whether an agreement is fair and equitable, we must consider issues such as the adequacy of the agreement at inception, the presumed understanding of the parties at that time, the reasonable expectation of the parties during the life of the agreement, the manner in which the parties acted and relied on the agreement as well as the previously stated principle that agreements by their very nature carry with them a stability that must be respected at the time of enforcement or even during periods when modification is at issue.

[Ibid.]

At the hearing in this case, neither party requested the court to emancipate Jennifer. The trial judge, nevertheless, wrote into the August 19, 2005 order: "the court finds that this child should have been emancipated back when she stopped attending school in January 2004. Therefore, the court is not going to enter a child support award."

We agree with defendant that the court's exercise of discretion was mistaken. Based on Keegan and on the agreement of the parties in their PSA, Jennifer has not been emancipated. The parties themselves agreed that Jennifer was not emancipated, even though she was not attending college and was, instead, working part time. We see no change of circumstances to warrant deviation from the PSA, pursuant to which the parties had agreed that "in the event Jennifer returned to school on a full time basis, the college tuition would be borne in proportion to the parties respective incomes after utilization of any funds set aside for Jennifer." As previously stated, a hiatus from college does not compel emancipation of a minor. On remand, the court should determine and enter an appropriate award of support for Jennifer, as well as plaintiff's obligation for college contribution and medical expenses.

Plaintiff argues that he should not be obligated for Jennifer's college expenses since he and Jennifer have had a strained relationship the past few years and she did not consult with him regarding her choice of Drexel University. Plaintiff's argument is concisely addressed by reference to the Supreme Court's recent opinion in Gac v. Gac, 186 N.J. 535, 546 (2006). There, the Court reaffirmed the applicability of the Newburgh factors and stated that "[a] relationship between a non-custodial parent and a child is not required for the custodial parent or the child to ask the non-custodial parent for financial assistance to defray college expenses." The Court noted that "[t]he need and capacity of a child for higher education are two of the many factors that a court must consider in determining the amount of child support to order." Id. at 542. In Gac since the daughter and her mother did not seek contribution from the father until after the daughter had graduated college, the father was not afforded an opportunity to participate in the daughter's educational decision or to plan his own financial future. Id. at 546-47. In this case, the PSA specifically contemplated the possibility that the daughter would return to college and provided that plaintiff's contribution would be based on his income relative to the income of the mother.

Next, defendant asserts that the court erred in determining a decrease in plaintiff's support obligation was necessary due to his decrease in income. "The party seeking modification has the burden of demonstrating a change in circumstances warranting relief from the support or maintenance obligations." Innes v. Innes, 117 N.J. 496, 504 (1990). One such example relevant to this case is a "decrease in the supporting spouse's income." Ibid.

Diminution of an obligor's income "requires a variety of factors and circumstances to be taken into account." Kuron v. Hamilton, 331 N.J. Super. 561, 571 (App. Div. 2000). A court should look at "the motives of the payor, the timing of the conduct that brought about the reduction in income, the payor's ability to meet the mandated support obligations even after the reduction in income, and the ability of the payee to provide for himself or herself[,]" as well as the "reasonableness of the payor's actions . . . the 'reasonable expectations of the parties at the time of the agreement . . . and the opportunity given to the dependent spouse to prepare to live on the reduced support.'" Ibid. (quoting Deegan v. Deegan, 254 N.J. Super. 350, 357 (App. Div. 1992); Dilger v. Dilger, 242 N.J. Super. 380, 388 (Ch. Div. 1990)) (third alteration in original).

In Kuron, supra, 331 N.J. Super. at 571, we set forth the following standard:

Facts concerning the motives, timing, and reasonableness of the payor's conduct should be evaluated with a view to determining whether he or she has acted in good faith in the matrimonial matter. Thus, in making its evaluation, the court should also focus on whether the payor acted with the intent to reduce his or her support obligations, i.e., in bad faith relative to the requirements of the judgment of divorce. Good faith in the context of changed circumstances is concerned less with the specific conduct that has led to the reduction in income and more with why the payor has adopted his or her course of action, and with the relationship of the payor's conduct and motives to the parties' positions in the matrimonial matter. Yet, while a determination of good faith -- or the absence of bad faith -- would tend to weigh in favor of a finding of changed circumstances, it is not, by itself, dispositive either. It is but one ingredient in determining whether the payor can be deemed to have acted reasonably with regard to his or her support responsibilities.

In respect of the parties' expectations at the time of the agreement, the court should focus on whether the payee was aware of, approved of, or participated in any conduct on the part of the payor that resulted in a substantial reduction in income. Even if the court concludes that the payee was only aware of such conduct, it must inquire into what steps, if any, were, or could reasonably have been taken to prepare for the diminished-income eventuality.

Finally, if the court determines that the payor has acted in good faith and advances rational bases for his or her actions, the court must address one further question: "whether the advantage to the [payor] substantially outweighs the disadvantage to the payee." Only if the court so finds in addition to other factors should the payor's conduct be viewed as having produced a legitimate change of circumstances entitling him or her to a modification of the support obligation.

[Ibid. (internal citations omitted).]

In particular, "where a layoff is followed by a shift to a job that does not draw on prior skills and experience, the obligor must explain that choice with reference to other options explored and efforts to find work with comparable pay." Storey v. Storey, 373 N.J. Super. 464, 472 (App. Div. 2004). Further, "[t]emporary circumstances are an insufficient basis for modification." Innes, supra, 117 N.J. at 504.

Both parties' agree that throughout plaintiff's career at IBM he was laid off numerous times, and each time he was successful in acquiring a new position locally within IBM. Plaintiff contends he searched for a position as he had done for his entire career, and this was the first time that a job with a comparable salary had not been available. Plaintiff claims that after he was laid off, he was unable to find a job in New Jersey that would enable him to pay the support order and support himself, so he opted to get his real estate license and sell real estate in Florida.

Defendant points out that plaintiff began to receive his pension on March 1, 2004. Therefore, she reasons plaintiff must have notified IBM of his intention to take early retirement prior to January 15, 2004 since it takes forty-five days to begin receiving pension distributions. Plaintiff decided to take early retirement after waiting approximately one week from receiving IBM's notice on January 7, 2004, of his possible layoff. Plaintiff had until February 6, 2004 to find other employment within IBM. Thus, defendant argues that plaintiff did not exhaust all possibilities of retaining his employment with IBM. Instead, plaintiff reduced his annual gross income from $120,500 down to what he estimates will be between $36,000 to $40,000. Moreover, defendant asserts that plaintiff has not adequately explained his efforts to find work with a comparable salary when his layoff from IBM as a computer software salesperson was followed by a career change to real estate sales in Florida. See Storey, supra, 373 N.J. Super. at 472.

We agree with defendant that the court did not adequately evaluate all appropriate considerations to effectuate a reduction in support. In particular, the court should explore whether plaintiff's income is merely temporary. Plaintiff's brief asserts that his $40,000 annual gross income "is impressive for a first time realtor." Without making any findings, we observe that it may be too early to determine what defendant's financial circumstances are and will be in the future. If he builds upon his current impressive pace, he may earn enough to satisfy the obligation set forth in the final judgment of divorce.

Also, it is unclear to us, in light of the fact that one of plaintiff's reasons for leaving New Jersey was that he could not find a job that would allow him to meet his support obligations, why he started a new career in Florida that he asserts does not allow him to meet that obligation. We remand to the trial court for reconsideration and a full review of the parties' finances and the standards discussed in this opinion. It is settled law in New Jersey that "when a parent, without just cause, is voluntarily unemployed or underemployed, income may be imputed to that parent to provide for the child's needs." Caplan v. Caplan, 182 N.J. 250, 268 (2005). The court should, therefore, consider whether or not imputation of income to plaintiff is necessary.

Next, defendant argues that the court erred when it ordered defendant to pay plaintiff a $500 counsel fee award related to an appearance regarding plaintiff's request for a continuance. In reviewing any request for counsel fees in family matters, reference must be made to R. 5:3-5(c), which incorporates the requirements of R. 4:42-9 in the presentation of the application. Therefore, to determine an appropriate fee award in a matrimonial action, the trial court must consider the following factors: "(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award." R. 5:3-5(c); Pressler, Current N.J. Court Rules, comment 4 to R. 5:3-5 (2006).

Plaintiff's counsel wrote a letter to the court requesting a continuance. Defense counsel received plaintiff's letter on July 28, 2005, and on the same date received the court's law clerk's letter stating the court granted plaintiff's request for a continuance on counsel's letter. The law clerk's letter to defendant also stated, "If you have any questions or concerns, please feel free to contact me. . . ." On July 28, 2005, defense counsel called with questions and concerns. While speaking to the court's clerk, defense counsel requested to be heard regarding the continuance. The law clerk replied, "fine, but make sure you let [plaintiff's counsel's] office know that you're coming in, just so they're on notice that [you are] coming in to argue."

On July 29, 2005, both counsel appeared. The court reprimanded defendant and her counsel for being there since a continuance had already been granted. The following colloquy took place:

THE COURT: I'm not taking oral arguments on postponements when I make the call. I'm not taking it. And I don't know why that call was made and perhaps when you respond on the motion, I don't know, you may seek legal fees. But I did not ask the parties to be here today. It was off, as far as I was concerned. And that's why I authorized my law clerk to send the paper out and my --

LAW CLERK: Can I clarify that?

THE COURT: Sure.

LAW CLERK: I -- when Stacy called me, I -- she said she was going to come and argue the postponement. I said, fine, but make sure you let [plaintiff's counsel's] office know that you're coming in, just so they're on notice that she's coming in to argue.

THE COURT: But did you ever state that they should be here?

LAW CLERK: Just because if she was here, that they should be on notice so it's not ex parte. That's the only thing I said.

THE COURT: Well, bottom line, I don't know why we're -- why you're here. I -- I think it is a -- a wrong move, [Counsel], to be here.

We find the imposition of this sanction to be an improper exercise of discretion as this problem was caused, at least in part, by the miscommunication among the parties and the court's staff after the court had granted the adjournment. Under those circumstances, we reverse and vacate the $500 award of attorneys' fees.

Defendant's remaining arguments, including the argument that the court's denial of sanctions was an abuse of discretion, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A).

Reversed as to the emancipation of Jennifer and the award of attorneys' fees; reversed and remanded for reconsideration of the request for child support and college contribution consistent with this opinion; affirmed with regard to the denial of sanctions.

 

(continued)

(continued)

16

A-0075-05T1

 

August 23, 2006