CATHERINE D. TREMARKI v. RICARDO K. PEARCE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1209-10T2

CATHERINE D. TREMARKI,

Plaintiff-Respondent,

v.

RICARDO K. PEARCE,

Defendant-Appellant.

_______________________________

May 4, 2011

Submitted April 13, 2011 - Decided

Before Judges Sapp-Peterson and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FD-05-471-09.

David S. Rochman, attorney for appellant.

Catherine D. Tremarki, respondent pro se.

PER CURIAM

Defendant, Ricardo K. Pearce, appeals from a final Family Part order entered on September 23, 2010, denying reconsideration of the portion of the court's July 14, 2010 order denying his motion to have his son declared emancipated as well as the court's refusal to grant oral argument on the reconsideration motion. We affirm.

The parties were never married. Their brief union resulted in the birth of their son, born in May, 1990. On June 16, 2010, defendant filed a motion seeking, among other relief, an order emancipating his son on the basis that he was no longer a full- time student at Atlantic County Community College where he had been enrolled since the 2008 fall semester. Plaintiff opposed the motion. In a certification submitted in opposition to the motion, plaintiff stated that their son was a full-time college student, had always "had an IEP[1] in grade school and [h]igh [s]chool" and, as a college student, he had to take additional classes to prepare him to take college-level courses. She attached a copy of his college transcript as proof of his full-time enrollment. The transcript confirmed his full-time enrollment but also reflected that he withdrew from one course during the 2009 fall semester and from another course during the 2010 spring semester. The motion judge denied the motion.

Defendant thereafter moved for reconsideration, arguing the court erred in refusing to emancipate their son. Defendant directed the court's attention to the transcript provided by plaintiff which reflected that their son completed nine semester hours for the 2009 fall semester and three semester hours for the 2010 winter/spring semester. Defendant argued that the court was apparently persuaded by the fact that their son was "enrolled" as a full-time student rather than considering whether he was actually attending college as a full-time student. The court, without granting oral argument, denied reconsideration, concluding:

There is nothing new in [d]efendant's submission. Although it is true the court may have erred, the [d]efendant's remedy is an appeal.

. . . .

Defendant's request for emancipation is denied at this time. Plaintiff provides proof that [the child] is enrolled at Atlantic Cape Community College as a full-time student. [The child] is still pursuing his education and is dependent on [p]laintiff. Defendant does not provide any new proof to support his allegations that [the child] is only a part-time student. He also presents no proof that the child is working other than his other son's hearsay statement. Although it may be taking the child longer than the [d]efendant would like, the child is clearly at home, going to school.

The present appeal followed.

Reconsideration itself is a matter within the sound discretion of the Court, to be exercised in the interest of justice[.] It is not appropriate merely because a litigant is dissatisfied with a decision of the court or wishes to reargue a motion, but should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence.

[Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (citation and quotation marks omitted).]

Rule4:49-2 provides that a motion seeking reconsideration of a court's judgment or order "shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." A party is entitled to reconsideration where the court's decision has a "palpably incorrect or irrational basis" or "it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence." D'Atria v. D'Atria, 242 N.J. Super.392, 401 (Ch. Div. 1990). A motion for reconsideration should not be made merely because a party is dissatisfied with the court's decision. Ibid. "[A] litigant must initially demonstrate that the Court acted in an arbitrary, capricious, or unreasonable manner, before the Court should engage in the actual reconsideration process." Ibid. It is well-established in our jurisprudence that continued financial support for a child over the age of eighteen may be ordered for a child enrolled in a full-time educational program. SeeGac v. Gac, 186 N.J.535, 542, 546-47 (2006) ("The Legislature and our courts have long recognized a child's need for higher education and that this need is a proper consideration in determining a parent's child support obligation."); Newburgh v. Arrigo, 88 N.J.529, 543 (1982) (stating "the privilege of parenthood carries with it the duty to assure a necessary education for children[,]"); Khalaf v. Khalaf, 58 N.J.63, 71-72 (1971); Patetta V. Patetta, 358 N.J. Super.90, 94 (App. Div. 2003) (stating "while parents are not generally required to support a child over eighteen, his or her enrollment in a full-time educational program has been held to require continued support."). With these principles in mind, we examine whether defendant is correct in arguing, as he did in seeking reconsideration, that the court improperly focused upon enrollment rather than whether his son was actually attending college as a full-time student. It is undisputed that at the time the motion was filed, the record demonstrated that his son had attended college for two and one-half years, maintaining at least twelve semester credits until the 2009 fall semester when he registered for four courses and later withdrew from one course, and the 2010 spring semester when he once again registered for four courses, withdrew from one course, received credit for one course, and had two courses designated as "Not Recorded." Whether "Not Recorded" means his grades had not been submitted or something else was never addressed by the court. The question of emancipation is fact-sensitive. Filippone v. Lee, 304 N.J. Super.301, 308 (App. Div. 1997). Clearly, however, enrollment is not the equivalent of actually attending college on a full-time basis; nor does attending college as a full-time student necessarily mean successful completion of at least twelve semester hours each semester. The fact-sensitive nature of the inquiry requires more than a finding that a student is enrolled in college. Here, plaintiff presented the transcript of the child that demonstrated full-time attendance through the fall of 2009. Withdrawing from one course in the 2009 fall semester and completing only one course during the spring 2010 semester is not dispositive of whether the child ceased being a full-time student.

Defendant did not dispute plaintiff's contention in her papers, submitted in opposition to the reconsideration motion, that their son was enrolled as a full-time student for the 2010 fall semester. We additionally observe that the parties never entered into an agreement in which they expressly defined the number of semester hours they expected their child to attend for purposes of continued child support. The court was satisfied, on reconsideration, that defendant had presented nothing new demonstrating that his son was not attending school on a full-time basis for the 2010 fall semester. Therefore, we cannot conclude on this record that the denial of reconsideration constituted an abuse of discretion.

Finally, we find no abuse of discretion in the court's decision to deny oral argument. While oral argument on substantive motions should ordinarily be granted, Filippone, supra, 304 N.J. Super.at 306, where, in seeking reconsideration, no new issues are presented, the denial of oral argument is not an abuse of discretion. Palombi, supra, 414 N.J. Super.at 288.

A

1 Individualized Education Program.