DEBRA A. ZINGONE v. DANIEL C. ZINGONE

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0078-08T1
0078-08T1

DEBRA A. ZINGONE,

Plaintiff-Respondent,

v.

DANIEL C. ZINGONE,

Defendant-Appellant.

________________________________________

 

Submitted May 6, 2009 - Decided

Before Judges Stern and Lyons.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-115-98.

Donald P. Hogan, attorney for appellant.

Debra Zingone, respondent, pro se.

PER CURIAM

This post-judgment matrimonial matter arises from a dispute between former spouses, defendant, Daniel Zingone, and plaintiff, Debra Zingone. Defendant appeals from an order denying his motion to emancipate the parties' oldest child (hereinafter referred to as "O.C.").

The parties divorced on April 27, 1999, and entered into a property settlement agreement (PSA) that was incorporated into the final judgment of divorce. The parties agreed to share joint legal custody of their children, with each child being emancipated upon "[t]he completion of the child's formal education on a matriculated basis, whether it be graduation from a four year undergraduate school or high school . . . ." The parties further agreed that "so long as the child is diligently pursuing his . . . formal education through a four year undergraduate college education and obtaining passing grades the child shall not be considered emancipated."

O.C. first enrolled at his local county community college in the Spring 2006 semester. He registered for thirteen credits but withdrew from all his classes. He enrolled again the following semester but withdrew from three of the four classes. O.C. earned a "D" in the only class he completed. However, despite this less than promising start, O.C. completed twelve credits in the Spring 2007 semester, earning a grade point average (GPA) of 3.120 for that term. Since that time, with the exception of withdrawing from one class in the Fall 2007 semester and failing one class in the Spring 2008 semester, he has passed all of his classes and acquired a total of thirty-three credits. His cumulative GPA is 2.50.

Defendant filed a motion to emancipate O.C., arguing that he was not a full-time student and was "clearly not progressing towards any type of degree in a reasonable manner." The trial court denied defendant's motion on July 18, 2008, finding:

I don't think that you have to necessarily find that a student is actually getting 12 credit hours every time, and that's what's considered full time[.] I'm not suggesting that its not, anyway, that's what I usually find is full time, and O.C. has not done that, but has done in the last three semesters, he's picked up 30 credits, and in this last round he had 12 credits . . . .

. . .

And education is important, and it's to everybody's benefit if he becomes a productive member of society with a full college education, and I include the defendant in this matter, as saying it's to his benefit for his son to get an education.

Defendant now appeals and argues that O.C. lacks the commitment to achieving a degree and, as such, the trial court's refusal to emancipate him was in error. We affirm.

In general, a parent is under no duty to contribute to the support of an emancipated child. Gac v. Gac, 186 N.J. 535, 542 (2006); Weitzman v. Weitzman, 228 N.J. Super. 346, 356 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989); Sakovits v. Sakovits, 178 N.J. Super. 623, 627 (Ch. Div. 1981). Our Supreme Court has held that emancipation can occur upon the child's marriage, induction into the military, by court order based on the child's best interests, or by attainment of an appropriate age. Gac v. Gac, supra, 186 N.J. at 542; Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). Attainment of the age of majority, eighteen, establishes prima facie, but not conclusive, proof of emancipation. Whether a child is actually emancipated at age eighteen depends upon the facts of each case. Dolce v. Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006).

The needs of the child, other than his or her age, "are determinative of the duty of support." Patetta v. Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003). The essential inquiry is whether the child moved beyond his or her parents' sphere of influence and responsibility and obtained independent status. Dolce v. Dolce, supra, 383 N.J. Super. at 17-18. Relevant circumstances to evaluate in this respect include the needs, interests, and independent resources of the child, the family's expectations, and the parties' financial ability. Newburgh, supra, 88 N.J. at 545; Dolce v. Dolce, supra, 383 N.J. Super. at 18.

Our Supreme Court has noted that while a "common public school and high school education may have been sufficient in an earlier time, . . . the trend has been towards greater education." Khalaf v. Khalaf, 58 N.J. 63, 71 (1971) (internal quotations and citations omitted). "Our courts have recognized this trend by including the expenses of a college education as part of child support where the child shows scholastic aptitude and the parents are well able to afford it." Sakovits, supra, 178 N.J. Super. at 628-29 (quoting Khalaf, supra, 58 N.J. at 71-72). The importance of education is clear when one examines the average income level for individuals with only a high school diploma versus those who have attained a bachelor's degree. High school graduates surveyed between 2005 and 2007 earned, on average, $26,712, while college graduates earned, on average, $46,277. U.S. Census Bureau, Median Earnings in the Past 12 Months (in 2007 Inflation-Adjusted Dollars) by Sex by Educational Attainment for the Population 25 Years and Over With Earnings, Data Set: 2005-2007 American Community Survey 3-Year Estimates, available at: http://factfinder.census.gov/servlet/ DTTable (last visited May 13, 2009).

"State, county and community colleges, as well as some private colleges and vocational schools provide educational opportunities at reasonable costs. . . . In general, financially capable parents should contribute to the higher education of children who are qualified students." Newburgh, supra, 88 N.J. at 544. In keeping with the notion that education is an important aspect of child support, we have held that a child is not emancipated even if he or she takes a relatively brief hiatus from college, during which the child worked full-time, because the child had not yet moved beyond his or her parents' sphere of influence. Keegan v. Keegan, 326 N.J. Super. 289, 294-95 (App. Div. 1999).

In this case, the parties' PSA governs the issue of emancipation. The basic contractual nature of matrimonial agreements has long been recognized. Harrington v. Harrington, 281 N.J. Super. 39, 46 (App. Div. 1995) (citing Petersen v. Petersen, 85 N.J. 638, 642 (1981)). At the same time, "the law grants particular leniency to agreements made in the domestic arena," thus allowing "judges greater discretion when interpreting such agreements." Pacifico v. Pacifico, 190 N.J 258, 266 (2007) (quoting Guglielmo v. Guglielmo, 253 N.J. Super. 531, 542 (App. Div. 1992)). It is a basic rule of contractual interpretation that a court must discern and implement the common intention of the parties. Pacifico, supra, 190 N.J. at 266; Tessmar v. Grosner, 23 N.J. 193, 201 (1957).

The trial court held that O.C. was pursuing an undergraduate degree with adequate diligence to avoid emancipation, and we agree. Though defendant may not be pleased with his son's scholastic performance, it is clear that O.C. has applied much greater effort in the past three semesters than he did when he initially started college. Certainly, if O.C. continued to withdraw from or fail all his classes, defendant's argument in support of emancipation would be stronger. However, as the trial court noted, O.C. is steadily completing courses and currently maintains a "solid C" average.

The parties' PSA states one basis upon which the child will be emancipated is the graduation from a four-year undergraduate school. The PSA also states that "so long as the child is diligently pursuing his . . . formal education . . . and obtaining passing grades the child shall not be considered emancipated." The court's role is to consider what is written in the context of the circumstances at the time of drafting and to apply a rational meaning in keeping with the "expressed general purpose." Pacifico, supra, 190 N.J. at 266. The general purpose of the emancipation provision of the parties' PSA was to ensure that the children born of the marriage would be entitled to support so long as they diligently continued in the pursuit of an undergraduate degree. O.C. has passed the vast majority of his recent classes and has been steadily working towards furthering his undergraduate education. Thus, the trial court's exercise of discretion to deny defendant's request for emancipation was within the ambit of the parties' agreement. Moreover, it furthered public policy in allowing O.C. to continue his attempt to earn a degree and better his life prospects. We, therefore, agree with the trial court's finding that O.C. does not qualify for emancipation at this time.

 
Affirmed.

O.C. was twenty years old when defendant initially filed his motion and is now twenty-one.

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A-0078-08T1

June 1, 2009