MARGARET MULCAHEY, f/k/a MARGARET MELICI v. STEVEN MELICI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2322-08T32322-08T3

MARGARET MULCAHEY, f/k/a

MARGARET MELICI,

Plaintiff-Respondent/

Cross-Appellant,

v.

STEVEN MELICI,

Defendant-Appellant/

Cross-Respondent.

________________________________________________________________

 

Argued November 17, 2009 - Decided

Before Judges Carchman and Parrillo.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Monmouth County, Docket No. FM-13-570-98.

Vincent L. Stripto argued the cause for

appellant/cross-respondent (Drazin and Warshaw,

attorneys; Mr. Stripto, on the brief).

Robert J. Cretella argued the cause for

respondent/cross-appellant.

PER CURIAM

Defendant Steven Melici appeals from a November 28, 2008 order of the Family Part denying defendant's motion: 1) to declare his and plaintiff Margaret Mulcahey F/K/A Margaret Melici's twenty-three year old daughter emancipated and 2) terminate child support for the daughter. In addition, the order fixed child support at $258 per week and ordered defendant to contribute fifty-nine percent towards the cost of the child's master's degree program at Monmouth University (the program). At oral argument, we were advised that as a result of the daughter's financial package at Monmouth, including scholarships and loans, no financial burdens will be imposed on her parents. The only issues remaining in dispute are emancipation and child support for the year preceding the daughter's entry into the program as well as the current year. As to these issues, we affirm.

We briefly set forth the relevant facts. The parties were married on April 20, 1985, and three children - one daughter and two sons - were born of the marriage. The parties were divorced on March 31, 1999, by Judgment of Divorce, which incorporated a property settlement agreement (PSA).

According to the PSA, defendant was obligated to pay plaintiff $1,000 per month in child support. The parties also agreed that they would "contribute towards the higher education expenses incurred on behalf of the minor children . . . in accordance with their financial ability to do so . . . after such children use his/her own money and seeks all loans, grants, and other sources of financial aid." The PSA also provided that, among other criteria, emancipation will occur upon "the completion of a post high school course of study, completed in a timely fashion . . ."

On May 20, 2008, the daughter graduated from Monmouth University with a B.A. in History and $67,440 in student loan debt. She applied to the program at Monmouth, and took an economics course at Brookdale College during the Fall 2008 semester, as a prerequisite.

On October 15, 2008, defendant moved to declare the daughter emancipated as well as terminate child support effective May 20, 2008. In response, plaintiff filed a cross-motion seeking to have defendant's child support obligation increased due to his increased earnings and to compel defendant to contribute to the costs of graduate school.

Plaintiff claimed that she, defendant and the daughter had agreed during the daughter's junior year of college that she would pursue a Master's Degree in Teaching. Defendant maintains that although they discussed these plans, there was no agreement that either party would be responsible for the costs. Plaintiff further claimed that the daughter was unemployable with her undergraduate degree alone.

Following argument, Judge Coogan entered an order denying defendant's request to emancipate the daughter and terminate child support. The order further fixed defendant's child support obligation to $258.00 per week for the daughter, and ordered defendant to "contribute 59% towards higher education costs of [the daughter]."

The daughter began the program in May 2009. As we were advised, all costs are now expected to be covered by financial assistance, without contribution from either party.

On appeal, defendant asserts that he is entitled to a plenary hearing and in any event, the daughter should have been declared emancipated.

In Filippone v. Lee, 304 N.J. Super. 301 (App. Div. 1997), we restated the guiding principles for determining emancipation. We said:

Emancipation of a child is reached when the fundamental dependent relationship between parent and child is concluded, the parent relinquishes the right to custody and is relieved of the burden of support, and the child is no longer entitled to support. Emancipation may occur by reason of the child's marriage, by court order, or by reaching an appropriate age, and although there is a presumption of emancipation at age eighteen, that presumption is rebuttable. In the end the issue is always fact-sensitive 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 or her own."

[Id. at 308.]

"The determination of emancipation is a fact-sensitive inquiry that '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.'" Tretola v. Tretola, 389 N.J. Super. 15, 21 (App. Div. 2006) (quoting Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006)). Emancipation is a question of need not age. Patetta v. Patetta, 358 N.J. Super. 90, 93 (App. Div. 2003).

Not every determination as to "circumstances" requires a plenary hearing. Here, the parties had submitted financial information, the daughter's educational background and future plans were set forth, and the PSA was before the court. Little more probative information would have been forthcoming to assist the judge in his decision-making role. As to whether the daughter was employable during the gap-year between college and the program, we note that she had enrolled in a pre-requisite course and enjoyed an on-going relationship with defendant that could easily have resolved in his mind, her "employability" during this time period.

As to the continuation of her education, the judge concluded that the daughter demonstrated "the aptitude and motivation for graduate school study." He also concluded that the parties were able to contribute, although that determination was rendered moot by the daughter's securing financial assistance. While the judge did not make an expansive review of the factors set forth in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), a full review that we again strongly advise, the judge made sufficient findings under the facts presented here to support the relief granted.

Courts have recognized that completion of undergraduate education is not the determinative factor for either declaring emancipation or terminating child support. See, e.g., Ross v. Ross 167 N.J. Super. 441 (Ch. Div. 1979) (declaring daughter could not be considered emancipated as she was attending law school after obtaining her undergraduate degree). See also Caplan v. Caplan, 182 N.J. 250, 261 (2005) (affirming the trial court's judgment ordering parent to pay for graduate school in addition to college). Similarly, a one-year hiatus from college does not mandate emancipation. See Sakovits v. Sackovits, 178 N.J. Super. 623, 630, 631 (Ch. Div. 1981) (stating it would be inequitable for parental contributions to end simply because a child takes a hiatus). See also Keegan v. Keegan, 326 N.J. Super. 289, 294-96 (App. Div. 1999) (determining child was not emancipated even though she took a hiatus from college to pursue brief employment).

We conclude that Judge Coogan's determination was supported by the record, the denial of emancipation was correct and attendant child support for the one year post-college graduation as well as the one-year during the daughter's graduate program was appropriate. Ibid. We find no basis for our intervention.

Affirmed.

 

There is no need to identify the children by name.

(continued)

(continued)

7

A-2322-08T3

December 10, 2009