JOANNE NOVY v. ROBERT NOVY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4207-07T24207-07T2

JOANNE NOVY,

Plaintiff-Respondent,

v.

ROBERT NOVY,

Defendant-Appellant,

_____________________________

RACHEL NOVY,

Intervenor-Respondent.

____________________________________________________

 

Submitted December 16, 2008 - Decided

Before Judges Skillman and Graves.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Ocean County, Docket No. FM-15-1298-99C.

Paone & Zaleski, attorneys for appellant (John P. Paone, Jr., of counsel and on the briefs; Daniel H. Brown, on the briefs).

Joanne Novy, respondent pro se, joins in the brief of appellant Robert Novy.

Rachel Novy, respondent pro se.

PER CURIAM

Defendant appeals from an order entered on March 28, 2008, which granted the motion of his daughter, Rachel, to intervene in his matrimonial action with plaintiff, who is his former wife and Rachel's mother. This order also vacated a consent order defendant entered into with plaintiff on January 22, 2008, which declared Rachel to be emancipated. In addition, the court imposed obligations upon both defendant and plaintiff for the continuing support of Rachel.

Defendant does not challenge the part of the order that allowed Rachel to intervene. However, defendant argues that the court erred in vacating the order declaring her to be emancipated and requiring him to continue providing her with support. Although plaintiff did not file a separate appeal, she joins in this argument.

Plaintiff and defendant were divorced in 2001. The property settlement agreement incorporated in the judgment of divorce awarded residential custody of the parties' children to plaintiff. The agreement required defendant to pay child support until the children were emancipated. The agreement provided that emancipation would occur at the earliest of several conditions, including in relevant part:

a. Reaches the age of eighteen (18) years or the completion of four (4) academic years of continuous college education; or in lieu of four (4) years of continuous college education (and graduate or post college education where applicable), the completion of an uninterrupted post-high school technical or vocational course of study, whichever last occurs. However, a child may be entitled to take a total of 12 months of hiatus from their college education without being deemed emancipated; if a child takes more than a total of 12 months of hiatus from their college education, that child will be deemed emancipated and the Husband's support obligations to that child will be terminated.

. . . .

d. Permanent residence away from the residence of either custodial parent. A residence at boarding school, camp, or college is not to be deemed a residence away from the residence of the custodial parent, and hence, . . . is not an emancipation event.

. . . .

f. Should [a] child obtain the age of 18 yet not attend college for a period of up to 12 consecutive months due to illness, injury and/or other catastrophe beyond the control of the child, then the child shall not be deemed emancipated provided that the absence from post high school education does not exceed 24 months in duration.

Rachel has experienced mental health and personal adjustment problems for a significant number of years. The exact nature and magnitude of those problems is unclear on this record.

Rachel did not graduate high school, but she subsequently earned her GED diploma. She has attended Ocean County Community College since the fall 2006 semester. Around the time she began college, Rachel moved out of her mother's home into the home of a friend's family.

In June 2007, defendant filed a motion to have Rachel declared emancipated. Plaintiff opposed that motion. By order entered on July 12, 2007, the trial court denied defendant's motion. However, the order provided:

In the event that Rachel fail[s] to make continuous progress toward completing her

. . . post-secondary education, to include registering for and completing not less tha[n] (12) credits per semester, then the defendant's obligation to pay child support and college expenses shall . . . terminate without prejudice and the plaintiff shall have the burden of applying to the court to resume any payment of child support or college expenses by the defendant.

Six months later, on January 23, 2008, plaintiff and defendant entered into a consent order declaring Rachel to be emancipated. This order provided in pertinent part:

Effective January 21, 2008 the defendant's child support obligation, obligation to contribute to post high school education, obligation to maintain medical insurance, obligation to pay unreimbursed medical expenses, and any other financial obligation for Rachel Novy is hereby terminated. The parties acknowledge that the defendant is current in these obligations through the date of emanci-pation.

Shortly thereafter, Rachel filed a motion to intervene in the action and to vacate the order declaring her to be emancipated. In her supporting certification, Rachel alleged that she was a full-time student at Ocean County Community College, that she had passed all of her classes in the fall of 2007, and that she was registered for the spring 2008 semester.

Defendant filed a lengthy certification opposing Rachel's motion. This certification alleged that Rachel had not complied with the part of the July 12, 2007 order that required her to maintain twelve credits per semester and that she was not a bona fide full-time college student. According to defendant, Rachel earned only seventeen credits during the entire 2006-07 college year and eight of those credits were in remedial courses that did not count as credits towards a college degree. Moreover, in the fall 2007 semester, Rachel earned only nine credits that counted toward a degree. Consequently, she had earned only a total of eighteen credits over the course of a year-and-a-half.

Defendant's certification also alleged that Rachel had committed multiple acts of forgery and theft from plaintiff, her grandfather and brother over the preceding four months. It further alleged that she had engaged in other socially deviant conduct including acting in pornographic movies. In addition, defendant alleged that Rachel had moved out of plaintiff's house to reside with a friend and that she "lived on her own beyond the sphere of influence" of both defendant and plaintiff.

Rachel filed an answering certification disputing many of the allegations of defendant's certification. She alleged that she had earned twelve credits in the fall 2007 semester and continues to be enrolled as a full-time college student. She further alleged that she had valid defenses to the criminal charges that had been filed against her. In addition, she alleged that she moved out of plaintiff's house only because of her mother's own psychological problems, which included bipolar disorder, and that her mother not only acquiesced in her residing outside of her home but had paid the rent. Moreover, Rachel claimed that she was being treated for attention deficit disorder and bipolar disorder.

In its oral opinion granting Rachel's motion to intervene and vacating the consent order declaring her to be emancipated, the court stated:

[N]otwithstanding the allegation that Rachel took only 9 credits that go towards her degree, I'm satisfied that she did comply with the requirement that was laid out by me in July of 2007 to complete a minimum of 12 credits.

I don't find anything in the record, or I find it hard to believe that she would be intentionally taking non-degree courses solely for the purpose of remaining unemancipated.

The courses that she took do not look, to me, to be cake courses. The four courses that she took for fall 2007 are Art History I, English I, Intro to Algebra I, General Psychology. I'm sure that somebody who was just interested in being in school just to bide time and do nothing else could find substantially easier courses to take if that's all that they were there for. So I've got to assume that she took these courses because they were what she needed in order to continue her education there.

I also look at the fact that she's, at the conclusion of the spring 2008 session, she will have been at Ocean County College for a total of two years, or four semesters. Assuming she achieves 12 credits of the 15 that she's registered for the spring of 2008, she will have achieved a total of 41 credits over that period of time.

. . . .

I am concerned, at this time, that there are many allegations in this case that would lead me to believe that Rachel is beyond the sphere of influence of her parents. The information that's provided to me today adds to that concern because it appears to me that Joanne Novy, who has not filed any pleadings with regard to this Motion, apparently did go to the Municipal Court proceedings, which tells me that not only did Mrs. Novy file the charges, I guess, in January or whenever she did, but she didn't dismiss the charges when they came up in Municipal Court. And the fact that there was a restraint of any type incorporated into the Municipal Court determination tells me that there was probably still some concern on Joanne Novy's part as to her relationship with Rachel.

So I'm quite torn by where we are based upon the factors that I have just indicated. And I don't believe it's in anybody's benefit for me to hold a plenary hearing to determine why each party has the relationship that he or she does with Rachel Novy. And I'm going to continue the support obligation.

"Attainment of age 18 establishes prima facie, but not conclusive, proof of emancipation." Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). "Whether a child is emancipated at age 18, with the correlative termination of the right to parental support, depends upon the facts of each case." Ibid. Moreover, the right to support may not be "defeated merely because both parents are united in their determination to declare the child emancipated." Johnson v. Bradbury, 233 N.J. Super. 129, 136 (App. Div. 1989).

In determining whether a child has become emancipated, "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.'" Fillippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995); see also Tretola v. Tretola, 389 N.J. Super. 15, 20 (App. Div. 2006). This issue "is always fact-sensitive." Fillippone, supra, 304 N.J. Super. at 308. Therefore, if there are factual issues material to the determination of whether a child has become emancipated, the trial court should conduct an evidentiary hearing to resolve those issues. See Johnson, supra, 233 N.J. Super. at 136-37.

We have no doubt that if the factual allegations of defendant's certifications were true, he would be entitled to

a declaration of Rachel's emancipation. However, Rachel's certification contested many of those allegations. Consequently, we conclude that the trial court should have conducted an evidentiary hearing to resolve these contested factual issues and that a remand for this purpose is required.

In arguing that Rachel is now beyond the sphere of her parents' influence, defendant relies heavily on the fact that Rachel moved out of plaintiff's home and into the home of a friend's mother. However, Rachel alleges that she made this move with plaintiff's consent and that plaintiff made rental payments on her behalf to her friend's mother. Therefore, testimony should be adduced concerning the circumstances of plaintiff's move out of her mother's home.

Defendant also alleges that Rachel stole money from her mother and other family members. However, the only evidence defendant presented in support of this allegation were complaints against Rachel that plaintiff filed in municipal court. None of those complaints had been adjudicated when defendant filed his motion for a declaration of Rachel's emancipation. At the argument on the motion, it was represented that Rachel had pled guilty to a charge of harassment, as a result of which a restraint had been entered against her having contact with plaintiff. But the order memorializing this disposition was not submitted to the trial court. Consequently, the record does not indicate the precise charge to which Rachel pled guilty or the restraint that was entered against her. On remand, evidence should be presented regarding that plea and the disposition of the other charges against Rachel.

Defendant also alleged that Rachel is not a bona fide full-time college student. Therefore, evidence also should be adduced on remand concerning Rachel's attendance at college and her progress in earning a degree.

Moreover, if Rachel elects to pursue her claim that she was prevented from becoming emancipated as a result of a mental illness or emotional disorder that has prevented her from attaining self-sufficiency, see Kruvant v. Kruvant, 100 N.J. Super. 107, 114-18 (App. Div. 1968), the court should also allow the parties to present evidence relevant to her claim.

Accordingly, the part of the March 28, 2008 order that declares Rachel is not emancipated is vacated and the case is remanded to the trial court for an evidentiary hearing in conformity with this opinion. The support provisions of the March 28, 2008 order shall remain in effect pending the outcome of the proceeding on remand. The remand shall be completed by March 13, 2009. Jurisdiction is not retained.

 

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A-4207-07T2

January 12, 2009