BARBARA L. SCHANK v. BRUCE W. SCHANK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2807-06T22807-06T2

BARBARA L. SCHANK,

Plaintiff-Respondent,

v.

BRUCE W. SCHANK,

Defendant-Appellant.

__________________________________

 

Submitted November 13, 2007 - Decided

Before Judges Lintner and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FM-14-1521-98.

Zohn & Zohn, LLP, attorneys for appellant (Edward J. Zohn, on the brief).

Law Offices of Leonard F. Rappa, attorneys for respondent (Mr. Rappa, on the brief).

PER CURIAM

In this matrimonial case, defendant Bruce W. Schank ("the father") seeks review of two aspects of post-judgment orders that the Family Part issued on December 1, 2006. The father specifically appeals (1) the effective dates specified for the emancipation of the parties' two older children, and (2) the court's directive that he reimburse plaintiff Barbara L. Schank ("the mother") $5,824.87, representing one-half of sums the mother had previously expended in educational costs for the oldest child. We affirm.

We need not dwell at length on the chronology of this protracted case. By way of summary, the parties were divorced on May 4, 1999. As part of the negotiated Final Judgment of Divorce ("FJD"), the mother obtained primary residential custody of the parties' three children: a daughter born in October 1985, a son born in June 1988, and another son born in June 1993. The FJD provided that the father would pay the mother weekly child support, payable through the Probation Department. The FJD also specified that the parties would "share in the undergraduate college costs of the children in accordance with the financial ability and assets at the time which the children are prepared to enter college."

In the fall of 2006, the father filed a post-judgment motion in the Family Part seeking, among other things, to emancipate the two older children. The motion was predicated on the father's understanding that his daughter, who had already reached the age of majority in October 2003, had ended her college and other post-secondary studies at least as of February 2006, and that his middle child had graduated from high school in June 2006 and did not thereafter enroll in college.

After the mother was served with the father's motion, she retained counsel and filed a cross-motion. Her cross-motion sought, among other things, a contribution from the father towards their daughter's incurred expenses for her post-secondary studies at community college and at a trade school. Numerous other items of relief were sought by the parties, none of which bear on the discrete issues raised in this appeal.

The motion judge granted the emancipation of the two older children, effective November 3, 2006, thereby ending the father's support obligation for those two children as of that date. The judge also granted the mother's request that the father bear a portion of their daughter's educational costs, fixing his share at fifty percent. Child support for the third child, not contested here, was recalculated at $90.00 per week.

The father now appeals. He argues that the judge should have emancipated the daughter the month that she ceased attending college, and likewise should have emancipated the son the month he finished high school. Had the judge done so, the mother would have been obligated to refund the child support she had received for those two children in the interim. The father also maintains that the judge erred in forcing him to pay half of his daughter's college and other educational expenses. He asserts that the judge should have specifically determined whether the daughter "would have attended college had the parties not divorced."

Our scope of review of determinations by the Family Part in such matters is substantially limited. "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding," and to the conclusions that flow logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (1998). We are especially deferential to rulings by Family Part judges that involve the application of discretion, and will only interfere where it is shown that such discretion has been abused. Brennan v. Brennan, 187 N.J. Super. 351, 357 (App. Div. 1982); see also Walles v. Walles, 295 N.J. Super. 498, 514 (App. Div. 1996).

With respect to the emancipation issues, the parties do not dispute, for purposes of the appeal, that the daughter ended her post-secondary studies in college and vocational school in February 2006, and that the middle child finished high school in June 2006. The judge correctly decided, consistent with the applicable case law, that both children are now "beyond the sphere of influence" of their parents and have the ability and responsibility to support themselves as adults. Fillipone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)). However, emancipation is by no means automatic, and instead requires a "fact-sensitive" assessment by the court. Ibid.; see also Dolce v. Dolce, 383 N.J. Super. 11, 17-18 (App. Div. 2006).

In choosing November 3, 2006 as the common emancipation date for the two older children, the motion judge explicitly exercised his "discretion . . . [and] denied the [father's] request that all amounts paid to the [mother] be refunded." As the judge noted in his written statement of reasons:

The [c]ourt presumes that payments made by the [father] to the [mother] for child support have been used for the benefit of the children and it would create an unnecessary hardship upon the [mother as the] custodial parent to obligate a refund.

Having performed our own review of the record, we are satisfied that the judge did not misapply his discretion in utilizing that effective date.

The judge was rightly mindful of the potential hardship that would be caused by requiring a retroactive disgorgement of child support from the mother. Although we recognize that the retroactive diminution of child support is not statutorily prohibited by N.J.S.A. 2A:17-56.23a in situations of emancipation, see Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995), the statute's inapplicability does not strip Family Part judges of their discretion to fashion court orders that avoid injustice. The unrefuted record shows that in 2005 the father, a skilled computer technician, sold his house and bought a more expensive one, obtaining a $260,000 mortgage to finance the difference. Moreover, the father offers no justification for why he waited nearly eight months after his daughter left school to file his motion to emancipate her. Given this context, the judge had ample grounds to support his discretionary choice of an effective date for emancipation.

As to the daughter's educational expenses, we perceive no inequity in requiring the father to shoulder one-half of those incurred costs. The father does not challenge the bona fides of those expenses, or the mathematical calculation that produced his $5,824.87 half share. Instead, he complains that the judge should have accepted his contentions of financial distress, and also should have probed more into the circumstances that led the daughter to enroll in higher education. We are satisfied, however, that the judge's fifty-fifty allocation was fair. The judge's order is also consistent with the FJD, which recited in pertinent part that "[b]oth parties acknowledge that they are desirous of having their children attend college[,]" and that, subject to the parents' respective financial circumstances, "they will share in the undergraduate college costs of the children . . . ."

Affirmed.

We note that the mother has not cross-appealed.

The date is the original return date of the father's motion. The motion was adjourned approximately a month to accommodate the mother's retention of counsel and filing of responsive papers.

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A-2807-06T2

November 19, 2007