JULIA E. PRESPER v. JOHN A. PRESPER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1624-08T11624-08T1

JULIA E. PRESPER, n/k/a

BELLINO,

Plaintiff-Respondent,

v.

JOHN A. PRESPER,

Defendant-Appellant.

________________________________

 

Argued: May 5, 2010 - Decided:

Before Judges Axelrad and Espinosa.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Middlesex County, Docket No. FM-12-1633-04.

D. Ryan Nussey argued the cause for appellant (Law Offices of Klineburger & Nussey, attorneys; Mr. Nussey and Nicole M. McCauley, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant John Presper appeals from the Family Part's October l3, 2008 order denying his request to emancipate his then twenty-year-old daughter. We reverse and remand.

A dual judgment of divorce was entered on November 16, 2004, incorporating the terms of a property settlement agreement (PSA). The PSA provides for plaintiff to be the residential custodial parent of the parties' two daughters and for defendant to pay child support for the minor children until they are emancipated, defined by the parties, in pertinent part, as follows:

An emancipation event shall be deemed to occur upon the first happening of the following:

a) Completion of High School, if the child does not attend college within one (l) year; provided, however, the child has attained the age of eighteen years. In the event the child attends college, emancipation shall not occur until after the child has completed an undergraduate college education, so long as the child pursues college education on a full time matriculated basis continuously unless the child does not attend continuously due to injury or illness of the child.

b) Engaging by the child in full-time employment, except that engaging by the child in full time employment during school vacation and summer periods shall not be deemed an emancipation event.

c) Marriage of the child even though such marriage may be void or voidable and despite any annulment thereof.

. . . .

On July 2, 2008, defendant filed a motion to emancipate his older daughter, born in l988. The parties provided certifications and, at the direction of the court following oral argument on August 29, 2008, one was provided by the parties' daughter. Defendant certified that the parties' divorce was contentious and he "had absolutely no contact or communication of any kind" for the last two years with plaintiff or the children, despite correspondence to plaintiff in November 2007 requesting documentation regarding their daughter's school enrollment. Their daughter graduated high school in 2006 and attended Middlesex County Community College for the 2006-2007 school year. Plaintiff confirmed that their daughter became a full-time employee at Princeton Sports Club in the summer of 2007, and worked there through June l5, 2008. According to plaintiff, their daughter worked full-time during the day and attended evening classes at Raritan Valley Community College in the fall of 2007, but took a temporary leave for the spring 2008 semester. Plaintiff represented that their daughter would be returning to Middlesex County Community College in the fall of 2008, and taking classes during the day, and provided a copy of her registration. Plaintiff certified that their daughter "realized that working hindered her ability to study and she wants to diligently pursue a college education."

In reply certifications, defendant stated he ascertained that their daughter dropped a class and had only three classes (nine credits) for the fall 2007 semester, and was of the belief she became pregnant and had a child in early September, and her boyfriend, who was earning in excess of $40,000, was living with her at plaintiff's house. Their daughter acknowledged that although she enrolled as a full-time student at Raritan Valley Community College in the fall of 2007, she was dropped from one class due to "lack of participation," leaving her two night classes and one on-line class. She claimed she did not attend college for the spring 2008 semester because the college would not let her enroll for classes due to her inability to pay the final installment of $389.63 for the fall 2007 tuition, which she requested from defendant without success. She expressed a desire to continue to attend college. Neither plaintiff nor the parties' daughter responded to defendant's allegation respecting the pregnancy or employment and residential status of her boyfriend.

The court denied defendant's request to emancipate his daughter. The judge concluded she was enrolled as a full-time student for the fall 2007 semester, apparently because the college did not treat her dismissal from the Nutrition class as a failure for her GPA and still charged her for the course, even though she admitted she was dropped from the course "6 to 7 weeks into the Fall semester" for not attending. In addition, the judge appears to have blamed defendant, at least in part, for her withdrawal for the spring 2008 semester, even though defendant may have been under the impression he was not obligated to contribute towards Raritan Valley Community College tuition based on the February l6, 2007 order that absolved him from liability for the Middlesex County College tuition, apparently under the Newburgh v. Arrigo rationale. The judge found that her re-enrollment for the fall 2008 semester "evidences her intent to continuously pursue her undergraduate education," and thus concluded she was not emancipated, which the judge determined under the parties' PSA to mean a year or more hiatus. The judge's analysis of emancipation under the parties' PSA is silent as to the daughter's continuous full-time employment, well beyond the incidental summer and school vacations carved out by the parties.

On appeal, defendant argues: (1) the court erroneously determined emancipation was not warranted by failing to properly consider that the parties' daughter was employed on a full-time basis, which was one of many conditions triggering emancipation under the PSA; (2) her enrollment status for the fall 2007 semester is still an issue of material fact that warrants further proof or a plenary hearing; and (3) emancipation is warranted as she moved beyond the "sphere of influence" of her parents by foregoing schooling, working full-time, and choosing to start a family on her own while she was capable of financially supporting herself.

We agree with defendant that further discovery and a plenary hearing is warranted under the facts of this case. Generally, "emancipation is the act by which a parent relinquishes the right to custody and is relieved of the duty to support a child." Newburgh, supra, 88 N.J. at 543. The issue of emancipation is fact sensitive. Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997). Its 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." Tretola v. Tretola, 389 N.J. Super. l5, 20 (App. Div. 2006) (quoting Filippone, supra, 304 N.J. Super. at 308). This determination requires "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." Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006).

Parents can voluntarily extend their duty to support a child past majority, and such agreement is enforceable if fair and equitable. Id. at l8-20. Although the PSA provided the child would not be deemed emancipated if she were "pursu[ing] college education on a full time matriculated basis continuously unless [she] does not attend continuously due to [her] injury or illness," it also provided she would be emancipated if she were engaged in full-time employment other than "during school vacation and summer periods." Their daughter worked continuously on a full-time basis from the summer of 2007 through at least June l5, 2008. It is undisputed she attended no classes for the spring 2008 semester. She may or may not have attended any of the daytime Nutrition classes she enrolled in for the fall 2007 semester. Thus, in determining the issue of emancipation, the court needs to clarify her enrollment status for the fall 2007 semester, as well as her employment status and earnings. In addition, although the daughter's own motherhood alone does not render her emancipated, Filippone, supra, 304 N.J. Super. at 309, nor does the fact she may be receiving some minimal financial support from the father, ibid., depending upon their financial circumstances and living arrangements, she may be beyond her parents' sphere of influence and responsibility and capable of supporting herself financially.

We remand for discovery and a plenary hearing. Obviously, in determining the issue of emancipation, the proceedings cannot take place in a vacuum. The court must consider whether the daughter resumed full-time college for the fall 2008 semester and her subsequent educational status, work history, and other relevant factors. We make no determination as to the merits of defendant's application. We do not retain jurisdiction.

 

At oral argument, defendant's attorney advised that during the pendency of the appeal, the parties' younger daughter was emancipated by consent.

A supplemental certification was also filed by defendant.

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

(continued)

(continued)

2

A-1624-08T1

May 21, 2010