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DOCKETNO. A-5438-10T3














July 18, 2012


Argued May 2, 2012 - Decided

Before Judges Graves and Harris.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Essex County,

Docket No. FM-07-20100-81.

Anthony H. Guerino argues the cause for appellant

(Mr. Guerino, attorney; Donald J. Rinaldi, on the


Scott A. Telson argued the cause for respondent

(Lombardi & Lombardi, P.A., attorneys; Mr. Telson,

on the brief).


This is a post-judgment matrimonial matter. Following a two-day trial, the court entered a judgment of divorce (JOD) on November 9, 1982. Plaintiff Charles La Motta appeals from an order dated June 27, 2011, denying his motion for reconsideration of a prior order, and his request for a medical evaluation to determine whether his estranged daughter is emancipated. After reviewing the record in light of the contentions advanced on appeal, we affirm in part, reverse in part, and remand for further proceedings.

The parties' JOD awarded custody of the two minor children to defendant Dolores La Motta and required plaintiff to pay child support until the children were emancipated. On April 11, 2011, plaintiff filed a motion to terminate or modify child support for his youngest child (fictitiously Tammy), who was thirty-one years old. Plaintiff certified that Tammy sustained a brain aneurysm when she was seventeen, which left her "partially disabled," and he continued to pay child support due to "her medical condition." However, plaintiff also stated his daughter was "able to finish high school and maintain employment." Plaintiff asked the court to emancipate his daughter because she "ceased working" and was "no longer eligible for disability benefits."

Plaintiff also submitted a certification from his mother in support of his motion. Plaintiff's mother stated she "had constant but intermittent contact" with her granddaughter, who would usually visit "with her boyfriend on Sundays." In addition, plaintiff's mother certified that Tammy "worked from time to time," and she was always "neat, clean, sociable, and age appropriate."

In a responding certification, defendant Dolores La Motta stated that Tammy has "several medical problems," and defendant submitted hospital records and medical reports to support her position. Defendant also stated that she had to take care of her daughter because she "is totally disabled," and "unable to work" due to "severe brain damage" and other medical problems. Additionally, defendant certified that Tammy does not receive Social Security benefits, and she needs "child support to survive."

Plaintiff's request for oral argument was denied, and the court entered an order on May 13, 2011, denying his motion. The court also awarded counsel fees to defendant in the amount of $2000.

Plaintiff filed a motion for reconsideration on May 26, 2011. In his supporting certification, plaintiff alleged that the medical information provided by defendant did not show that Tammy was unable to support herself, and plaintiff offered to pay for "a court appointed physician" to evaluate Tammy and render a report regarding her medical issues.

In her certification in opposition to plaintiff's motion for reconsideration, defendant acknowledged that Tammy worked in a nursing home several years ago and that her "last job was at WaWa in 2006." However, defendant also stated that Tammy is "permanently and totally disabled mostly from her lower back pain."

The court denied plaintiff's motion for reconsideration on June 27, 2011. In a subsequent letter opinion, the motion judge stated:

Obviously, the facts in this matter present an unusual question for the court considering the age of the child. However, the law in New Jersey is clear that each situation must be reviewed and resolved based on its own individual factors. This child may never be emancipated. She relies upon the care and support provided by her mother and faces institutionalization as the only other likely alternative to care for her. She obviously has the ability to communicate and be sociable, but this does not mean that she is able to remove herself from the sphere of influence, supervision and control provided by her mother.


Plaintiff argues on appeal that he is entitled to "some basic discovery, such as the requested medical examination of his daughter," and a plenary hearing to determine whether his daughter is totally disabled or whether she is "capable of some type of employment." We agree.

"Attainment of age 18 establishes prima facie, but not conclusive, proof of emancipation." Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). In determining whether a child has become emancipated, "the 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 v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J.Super. 593, 598 (Ch. Div. 1995)). This issue "is always fact-sensitive." Ibid.

In this case, there are genuine factual disputes regarding Tammy's medical status and her ability to either support herself or contribute to her own support. Accordingly, we remand for a plenary hearing, which should take place after the parties are afforded a reasonable opportunity for discovery. See Harringtonv. Harrington, 281 N.J. Super. 39, 47 (App. Div.) (emphasizing "that trial judges cannot resolve material factual disputes upon conflicting affidavits and certifications"), certif. denied, 142 N.J. 455 (1995).

Plaintiff also challenges the award of counsel fees to defendant in the amount of $2000. An award of counsel fees in matrimonial matters is discretionary. Williams v. Williams, 59 N.J. 229, 233 (1971); R. 4:42-9(a)(1); R. 5:3-5(c). "In determining whether a counsel fee should be imposed, the court must look at the requesting party's need, the other party's ability to pay, and the good and bad faith of each party." Boardman v. Boardman, 314 N.J. Super. 340, 349 (App. Div. 1998). That is what happened here, and we find no abuse of discretion or reversible error.

The order under appeal is affirmed in part and reversed in part; and the matter is remanded for discovery and a plenary hearing. Jurisdiction is not retained.