C.W v. J.F

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2001-10T4

C.W.,

Plaintiff-Respondent

v.

J.F.,

Defendant-Appellant.

___________________________________________________________

February 22, 2012

Submitted December 14, 2011 - Decided

Before Judges Fuentes and Koblitz.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, No. FM-03-393-95.

Musulin Law Firm, L.L.C., attorneys for appellant (Christina M. Fulton and Christopher R. Muslin, on the brief).

Respondent C.W. has not filed a brief.

PER CURIAM

Defendant J.F. appeals the November 5, 2010 order denying his third application to emancipate his daughter S.F., who was born in June 1990. J.F. argues that his daughter, who has special needs, should be deemed emancipated because she graduated high school and attended community college only part-time. After reviewing his contentions in light of the facts and applicable law, we affirm.

The parties were married on March 26, 1988,1 and divorced in 1995. Two children were born of the marriage.2 At the time of their divorce, the parties agreed to share joint legal custody of both children, with the mother retaining residential custody. Defendant agreed to pay child support to plaintiff. The parties did not address emancipation or the payment of college expenses in their agreement.

Defendant s initial application to emancipate S.F. after she graduated from high school was denied in an order dated March 27, 2009. Plaintiff s cross-application to require defendant to share the cost of S.F.'s college expenses was also denied. Plaintiff asserted that S.F. was a full-time student at Burlington County Community College and has a learning disability and suffers from a chronic illness. Defendant indicated that his estrangement from S.F. caused him to be unaware of her health issues, learning disability, and education plans.

Defendant s second application to emancipate S.F. was premised on evidence that she repeated certain courses and had not completed her associate s degree in two years. This application was denied in a July 9, 2010 order, which also directed further discovery to determine the number of college credits earned by S.F.

Defendant subsequently filed his third emancipation request based on S.F.'s college records, which indicated that she had earned only nine credits in her first two years of enrollment and never maintained full-time student status. The motion judge denied this request. He found that S.F. suffers from epilepsy and had been diagnosed with a learning disability since third grade. She lives at home with her mother, who drives her to school, as her disability prevents her from obtaining a driver s license.

The judge concluded that S.F. was still within her mother's sphere of influence and her delay in completing school was due to her disabilities. He noted that the school required her to take introductory classes for which she did not receive college credit. As S.F. was currently enrolled full-time for credit, the judge indicated that he would review the issue of emancipation again should she continue to have problems satisfactorily completing her courses.

Although the trial judge decided this motion without a hearing and thus without making credibility findings, we nonetheless defer to the expertise of the Family Court. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

In general, a parent's responsibility to pay child support terminates when the child is emancipated. Gac v. Gac, 186 N.J. 535, 542 (2006) (citing Newburgh v. Arrigo, 88 N.J. 529, 542-43 (1982)). The question of emancipation hinges upon whether the child, upon turning eighteen, is "'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)). Emancipation can occur upon the child's marriage, upon induction into military service, by court order based on the child's best interests, or by attainment of an appropriate age. Gac, supra, 186 N.J. at 543 (citing Newburgh, supra, 88 N.J. at 543). Emancipation is by no means automatic, and instead requires a "fact-sensitive" assessment by the court. Filippone, supra, 304 N.J. Super. at 308.

Ordinarily, a child who is in enrolled in secondary education must attend school full-time to remain unemancipated. See 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."); Cf. Keegan v. Keegan, 326 N.J. Super. 289 (App. Div. 1999) (holding that a hiatus from college during which the child worked full-time did not result in emancipation). When a child has special needs, however, those needs may interfere with the ability to attend college full-time and special accommodations may be required.

The judge found that S.F. relies on plaintiff for financial support and as her primary means of transportation to and from class. Moreover, she suffers from a learning disability that has affected her progress at school. It is "[t]he demonstrable needs of the child . . . [that] are determinative of the duty of support." Patetta, supra, 358 N.J. Super. at 93-94. Thus, the motion judge did not abuse his discretion in finding that S.F. remains within her mother's "sphere of influence."

Affirmed.

1 The judgment of divorce and subsequent orders incorrectly reflect the marriage date as March 26, 1998. We presume the correct date is March 26, 1988.

2 S.F.'s younger brother is not the subject of this litigation.