VALERIE GENTILE v. CHARLES GENTILE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0492-08T30492-08T3

VALERIE GENTILE,

Plaintiff-Appellant,

vs.

CHARLES GENTILE,

Defendant-Respondent.

__________________________________

 

Submitted: May 28, 2009 - Decided:

Before Judges Cuff and Fisher.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Cumberland County, Docket No. FM-06-189-92.

Buonadonna & Benson, P.C., attorneys for appellant (Alan G. Giebner, on the brief).

Robert J. O'Donnell, attorney for respondent.

PER CURIAM

In this post-judgment matrimonial appeal, we review an order emancipating the parties' eighteen year old daughter, terminating defendant's child support obligation, fixing his share of community college expenses, and awarding counsel fees to defendant. We reverse and remand for further proceedings.

Plaintiff Valerie Gentile and defendant Charles Gentile divorced in 1993. One child, a daughter, was born on February 15, 1990. On June 16, 2008, the parties' daughter graduated from high school with plans to enroll in the nursing program at Cumberland County Community College.

The cost per semester of her course of study is $1624, including fees but exclusive of books. In order to remain in the program, a student must maintain a 3.0 GPA. To assure her continued participation in the program, their daughter surrendered her part-time employment in order to devote her full attention to the nursing program. She lives at home with plaintiff.

Defendant paid $12,000 annually in child support. He offered to pay 75% of his daughter's net college expenses. He expected her to apply for any loans, grants or scholarships available to her. Defendant also expected that his child support obligation would cease because his daughter was now emancipated.

Plaintiff filed a motion to obtain contribution to their daughter's college expenses in addition to defendant's child support obligation. Plaintiff suggested that defendant pay 50% of college costs defined as tuition, books and fees. Defendant responded with a cross-motion seeking the emancipation of his daughter with the consequent termination of his child support obligation, provision of all documents from the college, including transcripts, progress reports, financial aid applications and decisions, and attorneys' fees.

At oral argument, the motion judge treated the issues of emancipation and contribution to college as mutually exclusive obligations and applied a self-constructed presumption to these obligations. The judge explained that he "emancipated [the daughter] for child support purposes but not for purposes of Newburgh v. Arrigo[.]" The judge then explained how he reached his tentative decision in this case. He stated:

Now, in the facts before the Court, I have one child living at home, going to college. And when I have indicated that the child is emancipated for child support purposes, it's not a Newburgh case and I looked at the matter as if it's a Newburgh case.

Does that mean under the appendices I cannot revisit child support for that particular child living at home? No. But it's, again, discretionary. In the majority of cases, I do not, as I did not this particular case.

So that's the theory. That's the philosophy. Right or wrong, that's how it is.

Earlier, the motion judge noted that he adopted this approach because the vast majority of people in the community in which he sits do not have sufficient income to pay child support and college expenses. Therefore, the judge entered an order emancipating the parties' daughter, requiring defendant to contribute 75% of net college expenses, ordering provision of transcripts, progress reports and financial aid applications and awards, and requiring plaintiff to pay $1000 in counsel fees.

On appeal, plaintiff argues that their daughter is not emancipated, defendant has sufficient means to contribute to college expenses and pay child support, and the counsel fees award is erroneous. We agree.

Emancipation of children is governed by case law and often by agreement between the parents. Here, we have not been provided with any agreement between the parties. Over time, several markers have been identified as creating a presumption of emancipation. These include reaching the age of eighteen, marriage, and enlisting in the armed forces. See Alford v. Somerset County Welfare Bd., 158 N.J. Super. 302, 310 (App. Div. 1978) (attainment of age eighteen establishes prima facie, but not conclusive proof of emancipation); Leith v. Horgan, 24 N.J. Super. 516, 518 (App. Div.) (marriage of child), rev'd, 13 N.J. 467 (1953); Slep v. Slep, 43 N.J. Super. 538, 543 (Ch. Div. 1957) (enlistment in the armed forces). The age of majority, now eighteen years of age, is hardly a hard and fast indicator of emancipation. Indeed, our Supreme Court and this court have held that reaching the age of eighteen "establishes prima facie, but not conclusive, proof of emancipation." Newburgh v. Arrigo, 88 N.J. 529, 543 (1982); Dolce v. Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006); Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997); Alford, supra, 158 N.J. Super. at 310. Ultimately, each case turns on its facts and "the essential inquiry is whether the child has moved 'beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his of her own'." Filippone, supra, 301 N.J. Super. at 308 (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)).

Measured by this standard, the parties' daughter is clearly not emancipated. She is a full-time student in a demanding program that counsels against even part-time employment. She lacks the means to live independently and does not do so. Rather, she resides with her mother at no cost to her. Although she graduated from high school in June 2008 and turned eighteen in February 2008, she is dependent on her parents and has not moved beyond their sphere of influence, and certainly is not independent. In short, she is not emancipated.

The motion judge correctly held that defendant has an obligation under the Newburgh v. Arrigo standard to contribute to the post-secondary school education of his daughter. He also correctly held that the Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A, 18 at 2333-34 (2009), are not intended to determine parental contribution to college expenses or the amount of support for a child attending college. A judge may use the child support guidelines to calculate support for a dependent college student. On the other hand, the guidelines may be used in the discretion of the judge to compute support for a college student who commutes from home. Ibid. Payment of college expenses, however, does not preclude or create a presumption against payment of support to the dependent college student. Bishop, supra, 287 N.J. Super. at 598; Limpert v. Limpert, 119 N.J. Super. 438, 442-43 (App. Div. 1972).

Here, the judge established precisely such a presumption. He noted that the litigants in ninety-nine percent of the cases before him cannot afford to contribute to college and pay support to the dependent college student. We cannot quarrel with his observation. In this case, however, the record demonstrates that defendant falls within the one percent of the population who can well afford to contribute to his daughter's college education and pay support for his dependent daughter.

The motion papers reveal that defendant earns at least $100,000 and has been paying $12,000 in child support annually. According to the record, the parties' daughter has enrolled in a course that costs $1624 each semester, including fees. Assuming books cost another $100 each semester, the effect of the September 19, 2008 order slashes defendant's contribution to the support of his daughter by approximately 80%. The judge did not account for the one percent of the population that can pay both support and college expenses. The decision to eliminate child support to the dependent daughter is arbitrary due to the inflexible application of the judge's self-constructed rule to this case.

In summary, we hold that the parties' daughter is not emancipated and the decision to eliminate child support under the facts of this case is arbitrary and unreasonable. On remand, the judge shall decide whether use of the child support guidelines are appropriate, and, if not, consider the factors governing support for dependent children, N.J.S.A. 2A:34-23a, and fashion an appropriate award. We leave undisturbed the portion of the order allocating college costs between the parents. Due to our disposition of the emancipation and support issues, the counsel fee award is also reversed.

 
Reversed and remanded for further proceedings consistent with this opinion.

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A-0492-08T3

June 26, 2009