PAMELA ANN ABRAMS f/k/a Lombardo v. DOMINIC LOMBARDO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2673-07T12673-07T1

PAMELA ANN ABRAMS,

(f/k/a Lombardo),

Plaintiff-Respondent,

v.

DOMINIC LOMBARDO,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 17, 2008 - Decided

Before Judges Fisher and Baxter.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1055-06.

J.P. Reilly, Jr., P.C., attorney for appellant (J.P. Reilly, Jr., on the brief).

Pamela Ann Abrams, respondent, has not filed a brief.

PER CURIAM

Defendant Dominic Lombardo appeals from a December 22, 2007 order that denied his motion to declare his son Anthony emancipated, retroactive to January 1, 2004. Instead, the judge declared Anthony emancipated as of May 2007. We reverse and remand.

I.

The parties were married September 11, 1981, and separated either in June 1996 or at some time in 1998. They had two children, Dominic Lombardo, Jr., born March 28, 1982, and Anthony Lombardo, born on June 25, 1985. The June 28, 2006 final judgment of divorce specified that defendant would pay $158 per week in child support for the remaining minor child of the marriage, Anthony, which has been accomplished via a wage garnishment. As we understand the record, the parties had already made provision for payment of Anthony's tuition.

In November 2007, defendant filed the motion that is the subject of this appeal. In that motion, he sought to: 1) declare Anthony emancipated retroactive to January 1, 2004; 2) establish the amount of the over-payment of weekly child support based upon that retroactive emancipation; 3) enter a judgment against plaintiff in that amount; and 4) establish a payment plan to satisfy that monetary judgment.

Plaintiff filed a cross-motion, the terms of which are not pertinent to this appeal. In her motion she did, however, request that the court deny defendant's motion to emancipate Anthony. In her certification, plaintiff stated:

. . . .

3. Anthony had been a registered student at LaSalle University from the Fall Term of 2004 through the Spring Term of 2005. Attached are copies of some of my canceled checks for tuition, books and supplies . . . .

. . . .

6. Anthony continued as a full-time student until [the] Fall Term of 2005 at Camden Count[y] College.

7. In the Spring Term of 2006, Anthony was registered at the Camden County College. One half of his tuition was paid, but Anthony did not complete the semester.

8. In June of 2006, when the Final Judgment was entered, it was Anthony's intention to resume college courses in for [sic] the Fall Term of 2006.

. . . .

In a child support dismissal letter that plaintiff delivered to the Camden County Probation Department, she acknowledged that Anthony was emancipated as of January 2, 2007, because he was

"no longer in school."

She argued before the Family Part that ever since the separation, defendant:

has had essentially no contact with our sons. In 1997, Anthony was twelve years of age. Since that time, defendant abandoned all parental interests in and parental duties to Anthony. Defendant did not know when Anthony was graduating from high school, his curriculum at LaSalle University or that he attended Camden County College. Between the spring term of 2006 and January of 2007, defendant had an obligation to be in contact with our son, Anthony, and to make his own determination of not only whether Anthony was still a student, but also, how he was fairing[sic] in college. All child support money [that was] paid by the defendant between the spring term of 2006 and January of 2007 was applied to Anthony's health, education and welfare.

Anthony himself provided a certification in opposition to defendant's motion to declare him emancipated. He certified that he attended Camden County College in the fall semester of 2005 and "intended to return to college for the spring term 2006, but did not register." The Camden County College transcript that Anthony attached to his certification describes him as a "Non-Matric/Casual Student." The transcript also shows that Anthony earned no college credits during the fall 2005 semester. Indeed, that same transcript contained a notation that Anthony's GPA for the term, and his cumulative GPA, were both 0. In fact, plaintiff did not submit a transcript from either Camden County College or LaSalle that showed Anthony ever earned any college credit.

During oral argument on his motion to declare Anthony emancipated, defendant asserted that plaintiff had deceived him at the time the JOD was entered in June 2006 because plaintiff represented that Anthony was still in college, even though she knew that Anthony had dropped out of school years earlier, in 2004. The judge disagreed, reasoning that defendant had been "sitting on his rights" and taking no action.

The judge denied defendant's motion to declare Anthony emancipated retroactive to January 2004. His findings of fact and conclusions of law were limited to the following statement:

There is a whole process of retroactive emancipation is not a thing that's looked favorably in the statutes and case law. I think there's an issue of laches that applies to both Plaintiff and Defendant, both the moving party and cross moving party. Short of a specific showing of fraud, I'm not going to overturn any determination at this juncture.

On appeal, defendant argues that the trial court erred when it: 1) determined that Anthony was emancipated as of May 2007 rather than January 1, 2004; 2) denied defendant's request for a retroactive declaration of emancipation and a retroactive termination of child support; 3) concluded that laches negated any entitlement that defendant may have had to a retroactive declaration of emancipation; and 4) denied his Rule 4:50-1 motion for relief from judgment.

II.

Emancipation is defined as "the conclusion of the fundamental dependent relationship between parent and child." Dolce v. Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006). Emancipation occurs when 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.'" Id. at 17-18 (quoting Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997)).

Once a child becomes emancipated, the duty of a parent to provide support ceases. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). Whether a child is emancipated upon reaching the age of eighteen, "with the correlative termination of the right to parental support, depends upon the facts of each case." Ibid.

The attainment of age eighteen no longer automatically signifies that a child is emancipated. "[F]inancially capable parents," in appropriate circumstances, are expected to contribute to the higher education of children who are "qualified students" and emancipation should be deferred while that child completes his college studies. Id. at 544. Consequently, in Limpert v. Limpert, we did not hesitate to order the father to continue to pay child support for his son "while he successfully continue[d] as a full-time student, and in regular course complete[d] his undergraduate work at college." 119 N.J. Super. 438, 442-43 (App. Div. 1972).

However, the Newburgh doctrine of continued child support and "concomitant deferred emancipation" is not unlimited. Filippone, supra, 304 N.J. Super. at 311-12. The duty to provide continued support does not extend to a "child unable to perform adequately in his academic program." Ibid. In Filippone, we held that the child's "failure to pass any of his [college] courses in the spring . . . semester, reinforced by his failure to return to school in the ensuing fall semester, virtually mandated the judge's conclusion that emancipation could no longer be deferred" and that the support obligation should cease. Id. at 312. Consequently, we affirmed the trial judge's determination that the child in question was emancipated. Ibid.

In other instances, we have insisted upon the obligation of the custodial parent to submit "documentation of [the child's] college credits" where the moving party has raised a legitimate question of whether the child was a full-time student. Tretola v. Tretola, 389 N.J. Super. 15, 19-20 (App. Div. 2006). There, we reversed the summary dismissal of the emancipation motion and ordered the production of such documentation upon remand. Id. at 21.

Here, plaintiff submitted no evidence to refute defendant's allegation that Anthony was emancipated once he graduated from high school in June 2004. Although plaintiff maintained that Anthony was "registered" at LaSalle during the 2004-05 academic year, and Anthony claimed to have "attended" LaSalle that year, plaintiff presented no evidence that Anthony actually went to class or earned a single academic credit during the entire fall 2004 to spring 2005 academic year.

The same pattern continued during the next school year. Anthony, according to plaintiff, was a "full-time student" at Camden County College in the fall 2005 semester, yet the fall 2005 transcript that Anthony himself attached to his certification demonstrates that he earned no academic credit during that semester. Plaintiff asserts that Anthony "registered" for the next semester, spring 2006, but "did not complete it," whereas Anthony candidly acknowledges that he "did not register" at all.

The record before us shows that Anthony never earned any academic credit at any college or university at any time after he graduated from high school in June 2004. He was not a student much less a full-time student.

Despite the direct and uncontroverted proofs, the trial judge never addressed the central issue of whether Anthony was emancipated. He made no findings of fact on whether Anthony ever attended college or earned academic credit. A judge is required to make findings of fact, Rule 1:7-4, and to address, and decide, the legal issues that are presented. Curtis v. Finneran, 83 N.J. 563, 569-70 (1980). The judge did not do so.

Moreover, although the judge remarked that "retroactive emancipation is not a thing that's looked [upon] favorably in the statutes and case law," he never discussed, much less analyzed, any of them. While it is true that N.J.S.A. 2A:17-56.23(a) prohibits retroactive modification of child support, that statute is inapplicable where the child has become emancipated:

N.J.S.A. 2A:17-56.23a was enacted to insure that on-going support obligations that became due were paid. A change of circumstances, such as loss of a job, could, therefore, not be used as a basis to modify retroactively arrearages which already accrued under a child support order. Implicit, however, in the judicial obligation to enforce the terms of a child support order is the underlying premise that a duty to support exists. Where there is no longer a duty of support by virtue of a judicial declaration of emancipation, no child support can become due. Thus, we cannot ascribe to this legislation, nor do we find any indication that the legislature so intended, to bar termination of child support retroactively to the time a child became emancipated.

[Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995) (citation omitted) (emphasis added).]

In light of Mahoney, the judge erred when he reasoned that the prohibition on retroactive modification of child support required him to deny defendant's motion even though evidence of emancipation had been presented. As we held in Mahoney, once a child is emancipated, the duty to provide support no longer exists and no child support can become due. Ibid.

The judge's conclusion that laches bars any right to relief that defendant might otherwise have had is equally flawed. A defense of laches cannot succeed unless a party fails to assert a known right. Knorr v. Smeal, 178 N.J. 169, 180-81 (2003). Here, no evidence in the record supports the judge's conclusion that defendant was aware that Anthony was emancipated yet delayed in filing his motion.

Equally problematic is the judge's finding that because defendant had failed to make a specific showing of plaintiff's fraud pertaining to Anthony's status, defendant's motion should be denied. The judge failed to cite, and we are unable to find, any case law that requires a moving party to shoulder such an evidentiary burden on these facts. We reverse the order that declared Anthony emancipated in 2007. On this record, the judge erred when he concluded that emancipation did not occur until that date. As in Filippone, supra, Anthony has not demonstrated sufficient interest in, or attendance at college to trigger a duty of financial support through May 2007.

Although we conclude that Anthony was emancipated long before the May 2007 date the judge selected, the record is insufficient to enable us to determine the precise time that such emancipation occurred. Consequently, we remand for further proceedings during which the judge is directed to determine the date emancipation occurred and fix the amount due defendant to compensate him for all child support paid thereafter. "We . . . trust that following the hearing, the trial court will set forth factual findings and legal conclusions sufficient to explain the rationale underlying its determination." Tretola, supra, 389 N.J. Super. at 22.

Reversed and remanded.

Defendant's brief states that the parties separated in 1998. The complaint for divorce specifies that the separation occurred "on or about June 1996." Defendant did not file an answer or otherwise dispute plaintiff's allegations concerning the date of separation.

Anthony did not graduate from high school until June 2004.

N.J.S.A. 2A:17-56.23a provides in pertinent part that "[n]o payment or installment of an order for child support . . . shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed . . . ."

(continued)

(continued)

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A-2673-07T1

October 7, 2008