SUZANNE M. GAHM v. ROBERT C. FLAY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-05852-12T2

SUZANNE M. GAHM,

Plaintiff-Respondent,

v.

ROBERT C. FLAY,

Defendant-Appellant.

_________________________________

July 30, 2014

Submitted March 19, 2014 - Decided

Before Judges Sapp-Peterson and Lihotz.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-0768-03.

Capehart & Scatchard, P.A., attorneys for appellant (Amy C. Goldstein, of counsel and on the brief).

Angelini, Viniar & Freedman, LLP, attorneys for respondent (Alicia D. Hoffmeyer, on the brief).

PER CURIAM

Defendant appeals from the Family Part order emancipating his youngest daughter, retroactive to January 28, 2013, and terminating plaintiff's child support obligation effective that same date. We affirm.

Plaintiff and defendant were divorced on August 19, 2003, after a sixteen-year marriage during which two children were born. Only the youngest child is the subject of this appeal. The parties' Final Judgment of Divorce (FJOD) incorporated a Property Settlement Agreement (PSA). Article Five of the PSA provided that plaintiff was the "primary/custodial residential/parent" and that defendant was the "secondary parent." Article Eight of the PSA addressed the payment of college expenses, and stated the parties "agree that they shall be responsible as provided by New Jersey Case Law to provide for the complete college education or secondary expenses for the minor children as per their income at the time of the event."

The children lived with plaintiff until spring 2007. By consent of the parties, the court entered an order on December 7, 2007, designating defendant as the primary residential parent. The order provided that plaintiff would arrange parenting time directly with the children. In April 2009, plaintiff filed a motion to emancipate their older daughter. The court denied the motion, and plaintiff and defendant are each required to contribute to her college education based upon a percentage of their income.

Their younger daughter suffers from depression and anxiety disorders. She began abusing prescription painkillers, and in January 2012, she entered an inpatient rehabilitation treatment center for nine days. She was admitted to a second inpatient program two months later, where she remained for one month. She returned home in April 2012, and graduated from high school in June 2012. Immediately after graduating from high school, she began using heroin.

She enrolled in Camden County Community College, but dropped out to go to her third inpatient rehabilitation center, "Palm Partners," in Florida from September 17, 2012 through October 25, 2012. After leaving "Palm Partners," she returned to defendant's home, but continued to struggle with depression and anxiety issues as well as drug use. In December 2012 or January 2013, she attempted suicide and was admitted to a local inpatient program for two weeks. In January 2013, she entered an inpatient program at "Twelve Palms Recovery Center" ("Twelve Palms") in Florida. Twelve Palms is a "dual treatment facility," which addressed her depression and substance abuse. She has not returned to New Jersey since that time.

On May 3, 2013, plaintiff filed a motion to emancipate their younger daughter and to terminate her obligation to pay child support to defendant. Defendant cross-moved for an order (1) directing plaintiff to file an updated Case Information Statement (CIS) along with three recent paystubs and copies of her 2012 federal and state individual income tax returns with all supporting schedules, (2) requiring plaintiff to pay defendant a percentage, to be determined by the court, of the total amount of college expenses for both daughters within fourteen days of the date of the court order, and (3) requiring plaintiff to pay a percentage of the children's college educations.

At the time the motion was filed, their younger daughter had completed the inpatient part of the program and was living in the "Sober Living" house while working 32-35 hours per week at Dunkin' Donuts. In his certification in support of his cross-motion, defendant stated his younger daughter planned to enroll at Indian River Community College in Florida for the semester beginning September 2013.

After conducting oral argument, the trial court emancipated the younger daughter, effective January 28, 2013, the date the younger daughter entered the first Florida rehabilitation facility. In granting relief to plaintiff, the court found the younger daughter was no longer within the sphere of influence of her father, noting that she was nineteen years old, had graduated from high school, entered an inpatient rehabilitation facility in Florida in January 2013, was residing in a "Sober Living" home in Florida since leaving the rehab facility in March 2013, and working "almost full time." These factors, which were not disputed, led the court to conclude the younger daughter had "achieved an independent status of her own." The present appeal followed.

On appeal, defendant argues the trial court erred in its application of the law; therefore, its decision must be reversed and his younger daughter declared unemancipated. Specifically, defendant argues the facts of this case are more closely aligned with the facts in L.D. v. K.D., 315 N.J. Super. 71 (Ch. Div. 1998), rather than Baldino v. Baldino, 241 N.J. Super. 414 (Ch. Div. 1990), referenced by the court.

"Emancipation -- the conclusion of the fundamental dependent relationship between parent and child -- is not a self-executing principle." Dolce v. Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006). "Although emancipation need not occur at any particular age, a rebuttable presumption against emancipation exists prior to attaining the age of majority, now 18." Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). "[R]eaching the age of majority establishes only 'prima facie, but not conclusive, proof of emancipation.'" Dolce, supra, 383 N.J. Super. at 17 (quoting Newburgh, supra, 88 N.J. at 543).

"Emancipation of a child is reached when the fundamental dependent relationship between parent and child is concluded, the parent relinquishes the right to custody and is relieved of the burden of support, and the child is no longer entitled to support." Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997). The circumstances by which a child may be emancipated is a fact sensitive inquiry and may occur by reason of the child's marriage, by court order, or by reaching an appropriate age, "and although there is a presumption of emancipation at age eighteen, that presumption is rebuttable." Ibid. The 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[.]" Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995).

The daughter in Filippone, while in high school and living with her father, became pregnant and gave birth to a child. 304 N.J. Super. at 309. The baby's father provided minimal support. Ibid. The daughter continued to live at home, attended high school and then college, and relied on parental support to meet her personal and educational needs. Ibid. The question before that court was whether the birth of a child to an unmarried teenager who, in all other contexts would have been considered unemancipated, is rendered emancipated simply by reason of the birth of the child. Ibid. We held the unmarried and otherwise unemancipated daughter was not emancipated by birth of a child. Id. at 313.

Here, the trial court relied on Baldino, where the Family Part judge found the parties' son was emancipated. Baldino, supra, 241 N.J. Super. at 414. The judge considered the specific question, whether a child of divorced parents should be deemed unemancipated due to his voluntary addiction to illegal drugs. Id. at 415. The judge found that the use of such drugs does not constitute a legally accepted handicap which would trigger the continued obligation of support beyond the point at which emancipation would otherwise occur. Ibid. The judge held that to "mandate that parents economically support a voluntarily addicted child beyond the point whereby that child would otherwise be emancipated exceeds the capacity of [the] court and would be tantamount to a condonation of the addiction and to actually supporting the illegal habit itself." Id. at 421. The court found that voluntary drug addiction will not prevent a declaration of emancipation which would otherwise be made. Ibid.

Defendant argues the facts of the present matter are analogous to L.D., where the Family Part judge ruled divorced parents were required to provide support for their drug- dependent nineteen-year-old daughter, who, after failing twelfth grade, and being diagnosed with a learning disability, enrolled in a one-year residency drug rehabilitation program which also facilitated the child's earning of a GED. L.D., supra, 315 N.J. Super. at 72. The one-year inpatient program also afforded the child the necessary coursework to achieve her GED. Ibid. The plaintiff certified that the child was in no way self-sufficient or independent, but was living in an apartment with roommates so that she could reside within the school district to finish her last year of high school, because the marital home had been sold. Ibid. Plaintiff was financially supporting the child in the apartment. Id. at 77. The trial judge rejected the defendant's argument that the child should be declared emancipated because she was nineteen years of age and because the court should not condone drug dependency. Ibid. The court additionally rejected the defendant's contention that the fact the child was in a rehabilitation facility should not preclude a finding of emancipation. Id. at 74.

The trial court in L.D. distinguished Baldino, finding the child in that case had been emancipated when he ceased his secondary education. Ibid. It therefore declined to adopt the reasoning in Baldino. Id. at 76. The court concluded that although the child was living away from her mother's residence, she was not living on her own. Ibid. With her mother's support, she lived in an apartment so that she could reside within the school district. Ibid. The court found that the child continued to be financially unemancipated and in need of support while she completed her residency program and earned her GED. Id. at 77.

Defendant also relies on Keegan v. Keegan, 326 N.J. Super. 289 (App. Div. 1999). In that case, we agreed that "a brief hiatus between high school and college is common place . . . [and] that a child's right to parental contribution to college should not be summarily determined." Id. at 295 (internal quotation marks omitted). We declined to hold that the child was emancipated for the period of time she was a full-time employee on hiatus from college, noting that she was still attending a community college on a part-time basis. Ibid.

The purely legal decisions of the Family Part are reviewed under the same de novo standard applicable to any other legal decision. Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). However, the adequate, substantial, credible evidence standard applicable to purely factual conclusions is slightly altered in appeals from the Family Part. "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Nonetheless, deference will not be given to the Family Court's decision where it is based on an incorrect determination of the applicable law. See D.W. v. R.W., 212 N.J. 232, 245-46 (2012).

We agree, as defendant urges, drug use is not dispositive of emancipation. Defendant's younger daughter began using drugs and entered a rehabilitation facility before graduating from high school. She eventually returned to high school and graduated in June 2012. It is clear that she was unemancipated up until this point. Upon graduation from high school, she resumed drug use, but enrolled in a number of rehabilitation facilities. Unfortunately, she was unable to successfully abstain from drug use, resulting in her admission into another drug program in Florida in early 2013. Upon completion of the in-patient aspect of the program, she remained in Florida and is working nearly full-time. Thus, the facts before the Family Part judge reflect more than a brief hiatus from her parents' sphere of influence. Thus, substantial, credible evidence in the record supports the trial judge's determination that the younger daughter has moved away from her parents' sphere of influence. Consequently, the trial judge did not err in declaring that she was emancipated as of January 28, 2013.

Defendant next argues Baldino is premised on outdated federal and state public policy and should be overturned. Defendant did not raise this argument before the trial court. Generally, unless such an issue (even a constitutional issue) goes to the jurisdiction of the trial court or concerns matters of substantial public interest, the appellate court will not consider it. State v. Robinson, 200 N.J. 1, 20-22 (2009); State v. Arthur, 184 N.J. 307, 327 (2005); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Assuming the issue raised is of substantial public interest, the argument raised is nonetheless without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). N.J.S.A. 2A:34-23(a), governing child support, specifically excludes addiction to alcohol or controlled substances as factors the court considers in determining the obligation to pay child support.

In short, the court properly determined that the younger child was emancipated. As such, plaintiff's duty to provide child support for the benefit of that daughter was extinguished.