DEBORAH PROFT v. GARY PROFT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2655-04T5 2655-04T5

DEBORAH PROFT,

Plaintiff-Appellant,

v.

GARY PROFT,

Defendant-Respondent.

_________________________________________________

 

Submitted October 18, 2005 - Decided

Before Judges Skillman and Payne.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Ocean County, FM-15-111-01-C.

Lawrence R. Jones attorney for appellant.

Gary Proft, respondent, pro se.

PER CURIAM

Deborah Proft and Gary Proft were divorced on January 24, 2001. On May 14, 2002, the court entered a post-judgment consent order declaring two children of the marriage, Erik and Kevin, to be unemancipated and setting child support for both boys at an unallocated total of $123 per week. At the time, both boys resided with Deborah. When the order was entered, Erik, who was born on February 17, 1981 and was diagnosed as a special needs student, intended to study plumbing at the Ocean County Vocational School. Kevin, who was born on May 20, 1983, had sustained a severe brain injury in an auto accident on August 8, 2001, and remained significantly physically and cognitively impaired.

The May 2002 order required Deborah to inform Gary if Erik dropped out of his two-year plumbing school, in which case the issue of his emancipation could be revisited, or if Kevin received Social Security disability benefits or a settlement of his personal injury lawsuit arising out of the auto accident. A review of the boys' status was to occur in June 2004.

Erik studied music, not plumbing, first at the Ocean County Vocational School and then at the DeVry Academy, and he dropped out of school in March 2004. In a certification presented to the court, Erik stated that he had specifically advised his father of the change in area of study in the fall of 2002, and that his father did not object. Erik is presently employed in a liquor store. Deborah concedes that Erik became emancipated when he began full-time employment.

Kevin commenced receiving Social Security disability benefits of $175 per month at an unspecified time, retroactive to February 2002. On May 20, 2004, he received a net settlement of his personal injury claim of approximately $400,000, $340,000 of which was used in May to purchase a condominium for himself and his mother located at 1021 Mulberry Place in Dover Township. Deborah did not contribute to the purchase price, but her name appears on the deed. The remainder of the settlement was allegedly utilized by Kevin to pay medical bills and to purchase a car. The amount of the settlement was limited by the insurance coverage limits of the tortfeasor.

Kevin has not received wages or a salary as the result of employment since the accident. Although he enrolled in courses at Ocean County College as a part-time student, as a result of his disabilities, he has withdrawn from numerous courses, allegedly to avoid failing. Kevin, like has brother, has certified that he notified his father of the settlement and of his intention to purchase a residence, which Gary visited shortly after the purchase was made.

In late August 2004, Gary filed a post-judgment motion seeking an order retroactively emancipating both Erik and Kevin, effective May 14, 2002, the date of entry of the prior consent order. Gary also requested reimbursement of child support payments made since May 14, 2002. He claimed lack of notice of Erik's change in his area of study and of Kevin's personal injury settlement as grounds justifying relief. Service was attempted upon Deborah. Certified mail was returned as unclaimed; notice by regular mail was not returned. The notice of motion lists Deborah's address as 1021 Hollyberry Road, Toms River, New Jersey 08753 whereas her address at the time was 1021 Mulberry Place, Dover Township. However, Gary has supplied a copy of the envelope sent by his attorney by certified mail, which is addressed to Deborah Proft at 1021 Mulberry Street [town name obscured] NJ 08753.

On October 4, 2004, the Family Part judge granted the relief sought by Gary without oral argument, ordering both boys to be deemed emancipated, retroactive to May 14, 2002, and requiring that Deborah refund child support payments received after that date to Gary, as well as pay him an attorney's fee of $1,200. Deborah did not attend the hearing at which these rulings were made or file any opposition to Gary's motion, and she claims that she received no notice of the proceeding.

Upon receipt of the court's order in November 2004, Deborah moved for reconsideration. At a hearing on December 23, 2004, the Family Part judge denied relief on the ground that Deborah had not, as the May 2002 order required, notified Mark of Erik's failure to attend plumbing school or of Kevin's receipt of a settlement and use of that settlement to purchase a home. Although factual issues existed as to whether Mark had notice of these events regardless of any lack of direct notification by Deborah, the judge denied a hearing on the issue. He did, however, amend the order as to Kevin, so as to hold him unemancipated until receipt of his personal injury settlement on May 20, 2004. The court also recalculated Gary's child support obligation for Kevin from May 14, 2002 to May 20, 2004 as $85 per week, and he ordered reimbursement by Deborah of amounts paid to her in excess of that amount. Orders were entered on December 23, 2004 (handwritten) and January 24, 2005 (typewritten) setting forth the court's rulings.

Deborah has appealed from the January 2005 order, arguing that the court erred in retroactively emancipating the children without holding a plenary hearing, in basing its decision to emancipate Kevin on his personal injury settlement, and in awarding attorney's fees to Gary following the October 2004 motion. We reverse, finding Erik's support to have been prematurely terminated and factual issues to have existed that required exploration and resolution prior to any determination with respect to Kevin's emancipation or support.

I.

Emancipation of a child occurs "when the fundamental dependant relationship between parent and child is terminated. When a child moves beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status on his or her own, generally he or she will be deemed emancipated." Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995). New Jersey law does not fix an age at which emancipation occurs. Youssefi v. Youssefi, 328 N.J. Super. 12, 22 (App. Div. 2000); Wanner v. Litvak, 179 N.J. Super. 607, 612 (App. Div. 1981). And although N.J.S.A. 9:17B-3 establishes a presumption that emancipation will occur when a child reaches majority at the age of eighteen, that presumption is rebuttable. Weitzman v. Weitzman, 228 N.J. Super. 346, 356 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989).

When emancipation occurs, a parent is relieved of the duty to support the child. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). However in most circumstances, until emancipation, parents remain charged with their children's care, nurture, education and welfare. Weitzman, supra, 228 N.J. Super. at 355; see also Ribner v. Ribner, 290 N.J. Super. 66 (App. Div 1996) (finding a duty to support psychiatrically disabled child whose disability manifested before the age of majority); Kruvant v. Kruvant, 100 N.J. Super. 107 (App. Div 1968) (same).

A determination of emancipation and, thus, termination of a right to parental support is a fact-sensitive matter, requiring a critical evaluation of the circumstances presented by the parties to determine if the child has moved beyond the sphere of parental influence and responsibility and achieved an independent status. Newburgh, supra, 88 N.J. at 543; Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div 1997). The issue is particularly complex in cases such as this in which disability has allegedly impaired the attainment of independence by the children after their majority, since the extent of the disability, its duration, and its economic consequences all must be examined before a determination of emancipation is made. Ribner, supra, 290 N.J. Super. at 79. That determination did not take place in this matter.

We are also troubled by the punitive nature of the court's decision. Reduced to its essentials, the court's declaration of emancipation was largely premised upon its finding that Deborah had violated the terms of the 2002 consent order by failing to inform Gary of Erik's change in course selection and eventual termination of his education and of Kevin's receipt of settlement proceeds and their use in purchasing a home for him and Deborah. Yet, the fact of actual notice to Gary was placed in issue by the certifications submitted by Erik and Gary in support of their mother's motion for reconsideration. Whether such actual notice occurred was never resolved by the court. Nor did the court explain why punitive sanctions would be appropriate if actual notice had taken place.

Of far greater significance is the fact that the right to child support belongs to the child, not the mother. Pascale v. Pascale, 140 N.J. 583, 591 (1995). The Supreme Court has thus held that a child support decision must be based upon an evaluation of the child's needs, and not on the conduct of the parents. Ibid.; see also Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993). By focusing on the conduct of Deborah in allegedly failing to provide direct notice to her former husband of changes in the circumstances of Erik and Kevin, the court lost sight of this important principle. Any lack of notice may be significant to a determination of the date of a retroactive declaration of emancipation and of a party's right to reimbursement. It is not relevant to a consideration of the fact of emancipation or a calculation of support if emancipation has not occurred.

Viewed in its proper light, we find no basis in the record for the court's determination to declare Erik emancipated as of May 14, 2002. Although he did not engage in the course of study foreseen at that time by his parents, there is no question that Erik continued in his education in a field that he reasonably anticipated would lead to employment. Nor is there any evidence of principled opposition by Gary to Erik's revised educational plan or any evidence that Erik's economic dependence upon his parents ceased while his education continued. Since Gary consented in 2002 to continue his support payments while Erik remained in school, we find that such payments were required until Erik left school and obtained fulltime employment. See Newburgh, supra, 88 N.J. at 543.

The issues that surround Kevin's receipt of the proceeds of settlement of his auto negligence action are more complex, since the amount received was substantial, and it was immediately utilized in the purchase of a home and car and in the payment of medical and other bills. As the Family Part judge observed, the amount of the settlement "pays the entire support of $123 a week for 3,252 weeks, which is 62 and a half years." The judge also observed:

I think th[at] it's an absolutely unreasonable and unfair thing for Mrs. Proft and Kevin to go out and spend the entire settlement and then to still expect Mr. Proft to just keep paying support. It's absolutely unfair and unreasonable.

However, we do not find that these combined observations adequately resolve the issues of whether Kevin remains unemancipated and whether he is entitled to some measure of support from his father. The record presented to us does not permit a reasoned determination whether Gary was aware of the intended house purchase and acquiesced in it. The record also does not permit any determination whether, in the circumstances presented, the purchase of a house for the use of Deborah and Kevin constituted a wise expenditure of funds or an improvident investment. No foundation exists in the record for the court's evident determination that the use of the settlement proceeds for shelter expense entirely obviated the need for other support.

The parties in this case appear to have significantly limited means. Thus, it may not be appropriate to exempt Kevin's settlement from a calculus of any remaining support obligation on the part of Gary, as occurred in Moehring v. Maute, 268 N.J. Super. 477, 481 (Ch. Div. 1993) when the parents remained financially able to otherwise meet their child's economic needs. Nonetheless, we are mindful that Gary's support obligation as set forth in May 2002 was established by consent. It was not calculated in accordance with the Child Support Guidelines, and may well have been measured by his ability to pay, rather than by the needs of either Erik or Kevin. As a consequence, even if the settlement were found upon remand to be properly allocated to support, an additional support obligation could remain, depending on the nature and extent of Kevin's disability, its anticipated duration, and Kevin's short- and long-term needs. These are issues that must be explored on remand, and because factual disputes appear to exist, a hearing must be held that affords the parties an opportunity for cross-examination and presentation of opposing evidence. Ribner, supra, 290 N.J. Super. at 72 (remanding for further factfinding, but leaving the need for a testimonial hearing to the court's discretion); cf. Fusco v. Fusco, 186 N.J. Super. 321, 327 (App. Div. 1982) (mandating such a hearing in a visitation context when material contested issues of fact existed).

As a final matter, we vacate and remand for further consideration the court's award of attorney's fees, which was made without any explanation as to its basis, in violation of R. 5:3-5(c). Because both the reason for the award and a consideration of the factors set forth in the Court Rule were unarticulated, we are unable to determine whether the judge abused his discretion in granting the fee award, as Deborah claims. See Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004) (applying abuse of discretion standard).

 
Reversed and remanded for further proceedings in accordance with this opinion.

After review of the certification of Gary's attorney, submitted at the court's request in connection with the motion for reconsideration, the judge found that proper service of the initial motion had been made upon Deborah. However, he declined to consider Deborah's default in determining the substantive issues raised by the parties. It is unclear whether it formed a basis for the fee award.

The court found social security disability income payments to Kevin to be de minimis in nature and declined to consider them further when calculating support. That determination has not been challenged on appeal.

(continued)

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A-2655-04T5

December 15, 2005