STEVEN BRANDES v. HELENE L. RIGNEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1262-09T2

STEVEN BRANDES,

Plaintiff-Respondent,

v.

HELENE L. RIGNEY,

Defendant-Appellant.

___________________________

December 16, 2010

Submitted December 6, 2010 - Decided

Before Judges Lisa, Reisner and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FM-12-2495-97.

Helene L. Rigney, appellant pro se.

Steven Brandes, respondent pro se.

PER CURIAM

Defendant Helene L. Rigney appeals from an October 9, 2009 order declaring the parties' son emancipated. We affirm.

I

This is the second appeal concerning the parties' dispute over financial support for the second of their three children ("the son" or "the younger son"). See Brandes v. Rigney, No. A-2427-07 (App. Div. Feb. 27, 2009). Rigney and plaintiff Steven Brandes were divorced in 1997. Their property settlement agreement (PSA) provided for child support, which by the specific terms of the agreement would terminate on each child's emancipation. A separate provision of the PSA governed the parties' obligation to pay for their children's college tuition. That section contained no provision concerning emancipation.

The parties' oldest son graduated from college and law school and is now emancipated. As set forth in the trial court's October 9, 2009 opinion, the younger son's college career has been extended. He has attended a variety of colleges without obtaining a degree. The parties' youngest child, a daughter, was also in college at the time of the hearing.

Against that brief backdrop, we consider what issues are properly before us on this appeal. Isolating those issues requires that we review the prior orders and the prior appeal in this case, as well as the plenary hearing and order from which this appeal arose.

In the September 20, 2007 and November 2, 2007 orders on the prior appeal, the trial judge declared the younger son to be emancipated and required him to pay for his college tuition with loans. However, the orders also provided that if the son finished DeVry University in three years, he could ask Brandes to reimburse him for Brandes' share of the college loans, pursuant to the PSA. In a December 21, 2007 statement of reasons, the trial judge clarified that he was trying to motivate the son to finish college by declaring him emancipated, but with the important caveat that if he finished in three years, the court would then decide how much of his tuition each of his parents, and the son himself, should be responsible for.

Rigney only appealed from the provision that emancipated the son, not from the requirement that Brandes reimburse him for a portion of the tuition or from the requirement that the son pay for his tuition with loans. The opinion deciding Rigney's first appeal noted that she agreed that the son should be required to pay for his college tuition with loans in order to motivate him to finish his education and obtain a degree. Brandes did not appeal from the tuition reimbursement provision either. Neither party appealed from the provision giving Rigney $225 per week in child support; there is no dispute that the $225 a week was only for the parties' daughter.

On Rigney's first appeal, another panel of this court remanded the case to the trial judge for a new determination as to whether the son was emancipated. The panel reasoned that the judge had mistakenly applied the Newburgh1 factors applicable to a parent's college tuition obligations, rather than the separate criteria applicable to the emancipation determination. However, because neither party had appealed from the portion of the trial court's order requiring possible reimbursement of the son's college loans, we conclude that the tuition reimbursement provision was not properly before that panel and was not the subject of the remand.

On remand, the trial judge held a plenary hearing. On the first day of the hearing, on May 11, 2009, the son testified to the financial support provided by his mother and her new husband. This included being covered by their health insurance policy, assistance with his car insurance and cell phone bill, and occasional assistance with his rent of $500 per month. The son, who was then almost twenty-four years old, testified that he worked as an intern at Verizon. His W-2 forms showed that he had earned over $22,600 in 2008. He was attending DeVry University and expected to graduate with an engineering-related degree after one or two more semesters.

Brandes testified that he had been laid off from his job and could not afford to pay tuition and child support for both the younger son and the parties' daughter. He also testified that the son would be able to obtain additional financial support if he were emancipated, although he provided no evidence to support that contention.

By the second day of hearing on June 1, 2009, the son had moved to a new apartment at a monthly rent of $1260, of which he was paying $630 per month using a portion of his student loans. He testified that Rigney and her husband were paying the other half of the rent. He admitted that he did not consult with his father before moving into such an expensive apartment, and he insisted that he was occupying the apartment by himself. According to the son, his stepfather (Rigney's current husband) worked for Verizon and his cell phone was on Rigney's Verizon family plan. The son estimated that his car insurance was $150 a month, which his mother was paying. He also testified that he took medication that would cost $300 a month if he were not on his mother s health insurance plan.

In her testimony, Rigney clarified that she not did pay anything extra for the son s health insurance, because he was covered under a family plan that she would be paying for in any event. However, Rigney contended that Brandes should be required to help her pay for the son s room and board and his transportation. She also contended that the PSA required Brandes to contribute to the children's college expenses even if they were emancipated.

In a written statement of reasons issued with his October 9, 2009 order, the trial court concluded that the son earned enough money, together with his student loans, to live independently, and that he was in fact capable of living independently. The judge opined that if the son were not living beyond his means in a $1260 per month apartment, he could be entirely independent. The judge also found that the son failed to consult with his father about significant life decisions, including the new apartment and the various colleges he chose to attend. The judge concluded that the son had moved beyond the sphere of parental control and therefore ordered his emancipation.

However, the judge's October 9, 2009 order did not vacate the sections of the previous orders providing that if the son finished DeVry in three years, the court would then decide what proportion of his loans would be reimbursed by his parents.

II

Our review of the trial court's remand decision is limited. We must defer to the court's factual findings so long as they are supported by sufficient credible evidence, and we owe particular deference to the expertise of the Family Part. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We also defer to the trial judge's findings based on witness credibility. Id. at 412; Pascale v. Pascale, 113 N.J. 20, 33 (1988).

The emancipation "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.'" Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)). In some circumstances, an adult-age offspring's failure to diligently pursue his college studies can warrant a finding of emancipation. Filippone, supra, 304 N.J. Super. at 311-12.

Based on our review of the record, we find no basis to disturb the trial judge's decision declaring the younger son emancipated. The record supports the judge's conclusions that he earns enough to support himself and has moved beyond the sphere of parental influence. Moreover, even if the son were not emancipated, on this record we would conclude that he does not currently require child support from either parent. The fact that his mother and her current spouse have chosen to subsidize an excessive rent, and to pay for other expenses that the son could afford to pay for himself, does not change that conclusion.

However, while we affirm the judge's October 9, 2009 order on this appeal, we agree with Rigney that the PSA by its terms does not limit the parents obligation to pay the son's college tuition to the date of his emancipation. As we have previously recognized, parents may voluntarily agree to undertake obligations for college expenses beyond those that might be legally required absent their agreement. See Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006).

As significantly, Brandes did not cross-appeal from the prior trial court orders that left open the possibility that Brandes could be required to reimburse the son for some portion of his student loans if he finished DeVry in three years. Therefore, by affirming the October 9, 2009 emancipation order, we are not precluding the son from seeking reimbursement for a portion of his college loans, if he succeeded in obtaining his DeVry degree in three years.2

Affirmed.

1 Newburgh v. Arrigo, 88 N.J. 529, 545 (1982).

2 Bearing in mind the history of this matter, we note that the PSA requires the parties to attempt mediation of any disputes before initiating litigation.