EVERALD ALEXANDER v. SANDRA ALEXANDER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5593-09T2

EVERALD ALEXANDER,

Plaintiff-Appellant,

v.

SANDRA ALEXANDER,

Defendant-Respondent.

_______________________________

SubmittedMay 4, 2011 Decided June 16, 2011

Before Judges Axelrad and Lihotz.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1740-00.

Koulikourdis and Associates, attorneys for appellant (Sasha C. Intriago, on the brief).

Sandra Alexander, respondent pro se.

PER CURIAM

In this post-judgment matrimonial matter, plaintiff Everald Alexander successfully obtained an order emancipating his twenty-two-year-old son and terminating his obligation to provide child support. When defendant Sandra Alexander received a copy of the April 21, 2010 order, she moved for reconsideration asserting the parties' son was a full-time student attending Bergen Community College. The Family Part judge granted defendant's request for reconsideration and reinstated child support for the unemancipated full-time college student. Plaintiff appeals from this order. We affirm.

The parties were divorced on October 10, 2000. Defendant was designated the residential custodian of the parties' two children. In the fall of 2007, their son commenced the pursuit of an associate's degree from Bergen Community College (Bergen). Plaintiff moved for emancipation in August 2009. Although the court denied plaintiff's motion without prejudice, the Family Part ordered the child would be deemed emancipated if he failed to resume full-time studies by January 2010. In March 2010, plaintiff filed his second request to emancipate his son, who he maintained had not earned sufficient credits to be considered a full-time student. The unopposed motion was granted. The court terminated plaintiff's obligation to pay child support as of the date fixed for emancipation, March 10, 2010.

Defendant moved for reconsideration, asserting she had not received plaintiff's motion papers because of a change of address and maintained the parties' son was attending college on a full-time basis. In her reply to plaintiff's opposition, defendant provided the child's unofficial transcript showing he had taken additional summer classes toward obtaining his degree and also successfully completed fifteen credits in the fall 2009 semester and thirteen credits in spring 2010 semester. Defendant also supplied the child's registration for 2010 summer classes and an application to enroll in a four-year degree program at William Patterson University.

Judge Lisa Perez Friscia granted defendant's motion for reconsideration. The judge determined defendant did not receive or respond to plaintiff's motion for emancipation because he mailed the motion papers to defendant's former address. Further, examining the child's updated schedule of completed courses, the judge determined that on the date of the prior order, March 10, 2010, he was a full-time student "clearly making efforts to complete his degree" and that emancipation had been improvidently granted. The judge found the child's best interests required that plaintiff's payment of child support continue, conditioned on the child's satisfactory completion of a full-time course load for each successive semester. See Van Brunt v. Van Brunt, 419 N.J. Super. 327, 329 (Ch. Div. 2010) ("requiring a student to produce proof of college attendance, course credits and grades as a condition for ongoing child support and college contribution does not violate the student's rights to privacy" and that "the student and the custodial parent each have a responsibility and obligation to make certain that the non-custodial parent is provided with ongoing proof of the student's college enrollment, course credits and grades"). Plaintiff's appeal ensued.

Our review of a trial judge's factfinding is limited: any such findings will be binding on appeal "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998). When confronted with a claim that the trial court erred in its determination of the facts, we consider "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record.'" Beck v. Beck, 86 N.J. 480, 496 (1981) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Family Part factfinding receives particular deference because of "the family courts' special jurisdiction and expertise in family matters," Cesare, supra, 154 N.J. at 413, and will be disturbed only upon a showing that they are "manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence." Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)) (internal quotation marks omitted).

When a reviewing court satisfies itself of the evidentiary support for the trial court's findings, "'its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal.'" Beck, supra, 86 N.J. at 496 (quoting Johnson, supra, 42 N.J. at 162). Accordingly, if the trial judge's conclusions are evidentially supported, we accept them. Cesare, supra, 154 N.J. at 412. On the other hand, we owe no deference to a court's application of the governing law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). With these principles in mind, we review the arguments offered by the parties.

Plaintiff argues the court erred in not emancipating the parties' son and eliminating his support obligation. The issue of whether a child is emancipated with the correlative termination of the right to parental support, is fact-sensitive, Newburgh v. Arrigo, 88 N.J. 529, 543 (1982), requiring a critical review of all facts and circumstances surrounding the child. See N.J.S.A. 9:17B-3.

Emancipation is "the conclusion of the fundamental dependent relationship between parent and child[.]" Dolce v. Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006). "[E]mancipation 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). See also L.D. v. K.D., 315 N.J. Super. 71, 75 (Ch. Div. 1998). "[T]he essential 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.'" Filippone, supra, 304 N.J. Super. at 308 (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)). This determination involves a critical evaluation of the prevailing circumstances, including the child's needs, interests, and independent resources, the family's reasonable expectations, and the parties' financial ability. Newburgh, supra, 88 N.J. at 545.

As the Supreme Court has confirmed, "[a]lthough there is no fixed age when emancipation occurs, N.J.S.A. 9:17B-3 provides that when a person reaches eighteen years of age, he or she shall be deemed to be an adult." Gac v. Gac, 186 N.J. 535, 542 (2006). Thus, proof of majority satisfies a non-custodial parent's prima facie showing, shifting the burden to rebut the statutory presumption of emancipation to the custodial parent. See Filippone, supra, 304 N.J. Super. at 308 (stating the statutory presumption is rebuttable). To prevail on a request for dependent support, the custodial parent must prove the child remains a full-time student. Limpert v. Limpert, 119 N.J. Super. 438, 442-43 (App. Div. 1972).

We have also explained:

"One of the fundamental concepts in American society is that parents are expected to support their children until they are emancipated, regardless of whether the children live with one, both, or neither parent." Burns v. Edwards, 367 N.J. Super. 29, 39 (App. Div. 2004) . . . . The obligation to provide child support "is engrained into our common law, statutory, and rule-based jurisprudence." [Id.] at 39.

[Colca v. Anson, 413 N.J. Super. 405, 414 (App. Div. 2010) (internal citations omitted).]

A well-established instance defeating a request for emancipation and requiring continued support occurs when a child is enrolled in a full-time educational program. See Gac, supra, 186 N.J. at 542 ("The Legislature and our courts have long recognized a child's need for higher education and that this need is a proper consideration in determining a parent's child support obligation."); 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").

Plaintiff argues his son had not achieved full-time student status until the fall 2009 semester. While we agree that during the prior four semesters, the child had not completed at least twelve credit hours, he did complete two summer classes in 2009, achieving twenty-five credit hours in the 2008-2009 academic year. This was followed by the fulfillment of fifteen credit hours in the fall 2009 semester and thirteen in the spring 2010 semester.

Proof of full-time student status requires registration for a full-time class load coupled with efforts designed to satisfy the degree or certification requirements of the educational institution. Implicit in this standard is that a child must act in good faith: the student must attend class and comply with other course requirements in an effort to satisfactorily pass. See Filippone, supra, 304 N.J. Super. at 311-12 (holding a child pursuing post-secondary education may no longer be dependent when the "child [is] unable to perform adequately in his academic program").1

In rejecting plaintiff's argument that the child had not accomplished the requirements of a full-time student, Judge Friscia examined the totality of the circumstances presented. She identified the child's slow start during the 2007-2008 academic year, resulting in part-time student status based on the completion of courses. However, for the 2008-2009 and 2009-2010 academic years, the parties' son passed courses garnering twenty-five and twenty-eight credit hours respectively. The court concluded sufficient facts unmistakably revealed the child presented a "commitment to and aptitude . . . for the requested education[,]" Newburgh, supra, 88 N.J. at 545, making emancipation improper. Filippone, supra, 304 N.J. Super. at 311-12.

We find no flaw in Judge Friscia's analysis and conclude the court properly determined plaintiff should not be relieved of his obligation to pay child support as "the privilege of parenthood carries with it the duty to assure a necessary education for children." Newburgh, supra, 88 N.J. at 543.

Plaintiff next suggests the court erred in relying on an unauthenticated uncertified college transcript, as the document is inadmissible hearsay. We reject this contention.

Principally we note plaintiff never raised this objection before the Family Part. "It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). Nevertheless, for completeness we provide these brief remarks supporting the rejection of plaintiff's contention.

"As a general rule, admission or exclusion of proffered evidence is within the discretion of the trial judge whose ruling is not disturbed unless there is a clear abuse of discretion." Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991); see also Purdy v. Nationwide Mut. Ins. Co., 184 N.J. Super. 123, 130 (App. Div. 1982). We give "substantial deference" to the trial judge's evidentiary rulings. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999) (citations omitted), certif. denied, 163 N.J. 79 (2000). Evidential determinations should not be overturned on appeal "'unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide off the mark that a manifest denial of justice resulted.'" Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (quoting State v. Carter, 91 N.J. 86, 106 (1982)).

Although we agree with plaintiff that the copy of the unofficial transcript is hearsay, which is generally inadmissible, N.J.R.E. 801(c), we note certain defined exceptions allow the review of hearsay evidence. N.J.R.E. 802. Specifically,

[u]nder the business records exception to the hearsay rule[, N.J.R.E. 803(c)(6),] a party seeking to admit a hearsay statement pursuant to this rule must demonstrate that "the writing [was] made in the regular course of business," the writing was "prepared within a short time of the act, condition or event being described," and "the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence."

N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 347 (2010) (quoting State v. Matulewicz, 101 N.J. 27, 29 (1985)).]

We can infer from the Family Part Judge's determination that she accepted the document as originating from Bergen in the regular course of its business activities, which contemporaneously reflected the college's records of the son's academic status. The circumstances supported the unofficial transcript's trustworthiness and reliability. The court's reliance upon the document was not an abuse of its considered discretion.

A

1 Our determination must not be misconstrued as a pronouncement that college students must pass every class taken. On the contrary, each student experiences his or her own unique adjustment to post-secondary schooling, which must always be considered in any review of the totality of the circumstances.