ROBIN HORNE n.k.a ROBIN MANFREDI v. BRETT D. HORNE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2043-07T22043-07T2

ROBIN HORNE n.k.a.

ROBIN MANFREDI,

Plaintiff-Respondent,

v.

BRETT D. HORNE,

Defendant-Appellant.

_______________________________________

 

Submitted September 10, 2008 - Decided

Before Judges Rodr guez and Waugh.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Hunterdon County, Docket No. FM-10-387-04.

John H. Rittley, LLC, attorney for appellant (Mr. Rittley, of counsel and on the brief).

Respondent has not filed a brief.

PER CURIAM

Brett D. Horne (father) appeals from those portions of the November 14, 2007 order denying his motion to emancipate his daughter Amanda, now age twenty-one; ordering him to pay $800 per month for her support; and obligating him to maintain $50,000 in life insurance to secure the child support obligation. Robin Horne, now known as Robin Manfredi (mother), had opposed the motion. We reverse.

The parties were divorced in 2004, after nineteen years of marriage. Two children were born of the marriage, Amanda and Nicole. Nicole is emancipated and is not the subject of this appeal. The parties entered into a Property Settlement and Separation Agreement (PSA), which provided the following regarding emancipation and payment of college expenses:

SUPPORT OF THE CHILDREN

7. The parties have chosen to deviate from the child support guidelines which are attached hereto based upon Husband's agreement to pay $1000.00 per month for both children in addition to his proportionate share of all costs relating to the children including the first $250.00 per child per year for medical costs. The parties shall split the cost of the children's mutually agreed upon extra curricular activities, school activities, and unreimbursed medical expenses. The Husband shall pay 60% and the Wife shall pay 40% of the minor children's extra curricular activities. Child support shall become effective October 1, 2004.

The Husband's obligations to pay child support shall continue until each child is emancipated as defined herein.

12. The parties agree that, if the children have the ability, and if they are financially able to pay for the children's college education, which costs shall include tuition, room and board, books, and reasonable costs of transportation (4 round trips per year), the children shall either attend a state university or community college. The parties agree that the children shall apply and be responsible for all financial aid, loans, grants and scholarships available to them prior to either party contributing to their education. After all financial assistance is calculated, then the parties shall share that net amount due with the Husband being responsible for 60% and the Wife being responsible for 40%. Said college tuition shall not exceed the cost of two years of college at Rutgers the State University of New Jersey. The parties shall modify the then existing child support order when either child enters college. The Husband shall pay 60% costs for both children's college tuition, costs, fees, room and board. At that time, the Husband shall pay $800 per month in child support for the remaining unemancipated child and contribute 60% of the costs for the other child's college tuition, costs, fees, room and board during the (30) thirty weeks of the college year. The Wife shall contribute 40% of the college tuition, costs, fees, and board for the child enrolled as a full time student. The parties agree that Husband shall pay the $1000.00 per month child support for the remaining 22 weeks of the year when the college classes are not in session. Said payments shall be made directly to the Wife.

. . . .

14. The term "emancipation" shall be defined for the purposes of this Agreement as follows:

a. The completion of the child's formal education on a matriculating basis, notwithstanding whether either child attends a four year college/university. It is understood that as long as the child is diligently pursuing his or her formal education through a four year undergraduate school, is obtaining passing grades of C or better, and is deemed by the college or school to be a full time student, the child shall not be considered emancipated.

b. Upon the completion of any of the prior segments of the child's education and upon failure to commence the next segment of his or her education, or upon leaving school, the child shall be deemed emancipated. A child shall not be emancipated if one fails to continue his education because of some injury, illness or other cause beyond the child's control.

. . . .

When Amanda graduated from high school, there was a hearing on the ability of each parent to contribute to college expenses.

Father alleged that he no longer earns $95,000 a year, his income at the time of the PSA. He did not contribute to Amanda's first year of college at Florida State University. At the ability to pay hearing, father learned that Amanda did not return to college after the freshman year. She is employed on a full-time basis at a drug store. She no longer lives at the dormitory, but has moved to a private apartment complex.

According to mother, Amanda was forced to take this step because she could not afford the tuition for full-time study. She became a part-time student in order to become a permanent Florida resident. This would, in time, reduce the full-time tuition. Amanda's plan is to eventually return to a full-time course of study at Florida State at the in-state tuition cost.

In order to apply for residency, Amanda had to file a sworn statement to the effect that she is an independent person and has maintained a legal residence domicile in Florida for at least twelve months, which is not incidental to college attendance.

Before the ability to pay hearing concluded, father moved for a reduction in child support based on changed circumstances and to declare Amanda emancipated. Mother opposed the motion.

The judge held oral argument on the underlying motion and reserved decision. The judge issued a written decision, granting father's motion in part and denying it in part. The judge found that Amanda was not emancipated, pursuant to section 14b of the PSA, because her failure to continue her education was due to causes beyond her control. Mother did not raise that argument.

Father appeals contending that the judge committed reversible error because there was no substantial credible evidence to support his findings that the PSA excused Amanda from attending college on a full-time basis. We agree.

It is conceded by mother that Amanda is no longer a full-time student and is employed on a full-time basis. Thus, she is emancipated within the meaning of section 14a of the PSA. In this regard, we find Amanda's attempt to establish Florida residence to be very significant. For that reason, father does not have to pay support for Amanda, and because she is no longer a full-time student, he is not required to pay for her education. That is the agreement mother and father made. He is entitled to enforce the agreement. It is well-settled that our public policy favors consensual matrimonial settlement agreements. Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995) (citing Petersen v. Petersen, 85 N.J. 638, 642 (1981)). We will not draft a new agreement for the parties. Ibid.; Rolnick v. Rolnick, 262 N.J. Super. 343, 352 (App. Div. 1993) (quoting Berkowitz v. Berkowitz, 55 N.J. 564, 569 (1970)). Here, there is no claim of "unconscionability, fraud or overreaching." Harrington v. Harrington, 281 N.J. Super. 39, 46 (App. Div.), certif. denied, 142 N.J. 455 (1995).

It is inequitable to force father to pay child support and college expenses because Amanda may return to full-time study one day. Mother is certainly not entitled to child support nor a share of college expenses. For one thing, if the present order stands, father would be compelled to pay these obligations for an indefinite period, waiting for the happening of an emancipating event that has already occurred, but that the judge does not recognize as having occurred.

We reject the argument that Amanda is no longer a student for causes beyond her control and therefore, not emancipated. First we note that Amanda's decision was her own. Her father was not consulted on a temporary sojourn from full-time student status in order to save money for an eventual return. Second, he was not asked to pay his share of Amanda's first-year tuition. Third, assuming that Amanda left school because her father could not afford to pay his 60% share of college expenses due to his diminished earning capacity, the argument still fails. Father had no control over the loss of his income. Fourth, it is inequitable to keep his child support obligation to Amanda in effect, while allowing her to present herself to the State of Florida as an independent adult, who resides there not incident to college attendance.

Given our conclusion, we need not address father's contentions that the judge erred by: (1) failing "to acknowledge the evidential value and existence of the residency affidavit;" and (2) permitting objectionable evidence into the record, which resulted in miscarriage of justice.

Finally, father contends that the judge committed reversible error and abused his discretion by refusing to consider the Lepis factors in father's application for modification of child support based on changed circumstances. This issue is moot at this time.

Accordingly, paragraph #3 of the November 14, 2007 order is reversed. Amanda is deemed emancipated effective the last day of full-time college enrollment. Father is responsible for child support up to that date.

Reversed.

The relief granted was the emancipation of Nicole, which neither party challenges. Concomitantly, the judge reduced the child support from $1,000 to $800 per month and reduced father's life insurance obligation by half.

Lepis v. Lepis, 83 N.J. 139 (1980).

(continued)

(continued)

8

A-2043-07T2

November 13, 2008