PATRICIA KIELY v. FRANCIS KIELY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

PATRICIA KIELY,

Plaintiff-Respondent,

v.

FRANCIS KIELY,

Defendant-Appellant.

______________________________

November 19, 2013

Submitted October 21, 2013 Decided

Before Judges Harris and Kennedy.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-1768-93.

Karen Kirchoff Saminski, LLC, attorneys for appellant (Thomas Sidoti, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant appeals from that portion of a Family Part order entered on August 31, 2012, which denied, in part, his motion to declare his daughter emancipated. The order declared that his daughter "is emancipated for the period from July 8, 2011 through January 26, 2012, and is determined to be unemancipated effective January 27, 2012." Defendant argues that the motion judge erred in "not finding [the daughter] emancipated as a matter of law" and in determining that the daughter's failure to enroll and/or inconsistent attendance at any school after she withdrew from high school in 2009 constituted a "hiatus under the case law."

For reasons expressed hereinafter, we reverse that portion of the Family Part order declaring the daughter "unemancipated" as of January 27, 2012, and we remand the matter to the Family Part for further proceedings consistent with this opinion.

I.

Plaintiff and defendant were married and had two children, one of whom, the daughter, was born in 1993. A judgment of divorce was entered on September 14, 1993, dissolving their marriage and granting "primary residential custody" of the children to plaintiff and requiring defendant to pay weekly child support. At some point, defendant moved to Florida, but remained, more or less, in contact with the children and duly made his child support payments.

In September 2009, the daughter, then seventeen years of age, withdrew from the public high school she had attended since 2006 because, as she later explained, she was simply "indifferent" to school. In fact, due to her excessive "lates and absences" she had earned relatively few course credits while attending the high school.

After learning of the daughter's withdrawal from school, defendant filed a pro se motion to have the daughter declared emancipated. On July 8, 2011, another Family Part judge denied defendant's motion, explaining that while "there is a question" about the daughter's "good faith efforts" to enroll in a high school equivalency program, the daughter nonetheless had not "moved beyond the sphere of influence and responsibility exercised by her parents[.]" Defendant chose not to appeal that order, but instead engaged counsel to file a new motion seeking the same relief.

On November 3, 2011, defendant, represented by counsel, filed another motion seeking to have the daughter declared emancipated, as well as other relief. At a conference prior to a plenary hearing, the motion judge ordered the parties to exchange discovery. Later, finding that plaintiff had not provided discovery and had apparently made misrepresentations pertaining to discovery, the judge "removed" plaintiff as a party and ordered the daughter to be substituted in her place.1 The judge also ordered the daughter to provide discovery to defendant. A plenary hearing on the daughter's emancipation was thereafter held on May 31 and July 31, 2012.

The transcripts from both hearings indicate plainly that discovery remained outstanding on each occasion. Also, while some discovery was apparently provided just prior to the start of the July plenary hearing, defendant's counsel stated it was still incomplete and provided too late to allow him to prepare to meet it at the hearing.

The daughter claimed to have enrolled in KAS Prep, a free alternative high school program run by the Hudson County Schools of Technology, in January 2010. However, the principal of KAS Prep and its custodian of records, certified that the daughter's attendance commenced in September 2011. During that Fall semester, records revealed that the daughter only attended classes, which were held exclusively in the evening, nineteen times and had forty recorded absences. She earned credit for only one course, and explained her performance by stating she had "stuff going on." The daughter apparently worked part-time during the day.

The daughter appears to have attended classes during the Spring semester of 2012, and stated her desire to finish high school. Viewed most indulgently, however, the only record of defendant's school attendance since 2009 is her participation in evening classes at KAS Prep in the Spring of 2012. As of her last appearance in court on July 31, 2012, the daughter was unable to show she had even enrolled at KAS Prep for courses commencing in September 2012.

The daughter acknowledged that her attendance at the KAS Prep courses for the Spring 2012 semester was poor at first, but claimed that her attendance improved as the semester continued. Her courses at KAS Prep for the Spring 2012 semester were held on four evenings each week from 5:30 p.m. to 8:30 p.m. The daughter did not provide her grades for each course she took, although the record does contain a document which suggests that she did receive credits for her efforts over the course of the semester.

The daughter testified that she works during the day and earns "$300 every two weeks after taxes." She also claimed vaguely that she works at a second job over the summer months, but provided no specific evidence of that fact.

As noted above, while the record supports her claim that she completed several courses over the Spring 2012 semester at KAS Prep, she did not provide her grades for that coursework, and had not enrolled for the Fall 2012 semester. Accordingly, there is nothing in the record showing any commitment to enrolling in courses for the Fall 2012 semester or the number of course credits she would earn. The only evidence in the record is the daughter's stated intention to enroll in the future.

The motion judge determined that the daughter "failed to demonstrate a commitment to her education" from the date of the Family Part's earlier order of July 8, 2011, through the end of the Fall semester at KAS Prep on January 26, 2012, and, therefore, held she was emancipated during that period. However, the judge went on and found that the daughter "showed a good faith attempt to further her education" thereafter by attending KAS Prep courses for the Spring 2012 semester. He added that her "attitude toward[] her education has markedly improved" and cited "proofs adduced" as demonstrating that the daughter now has fifty-six high school credits.2

The judge then entered an order emancipating the daughter from July 8, 2011 through January 26, 2012, and declaring her "unemancipated" as of January 27, 2012. The judge also ordered the daughter to "provide proof" to defendant by October 15 and February 15 of "every semester that she is enrolled as a full-time high school student" and transcripts and attendance records thereafter.

This appeal followed.

II.

We set forth the standards governing the limited scope of our review. Ordinarily, a trial court's findings are "not disturbed unless 'they are so wholly unsupportable as to result in a denial of justice[.]'" Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)); Roe v. Roe, 253 N.J. Super. 418, 432 (App. Div. 1992). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms, supra, 65 N.J. at 484). Accordingly, when a reviewing court concludes there is satisfactory 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 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 and we give "due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters." Martindell v. Martindell, 21 N.J. 341, 355 (1956); see also Rolnick v. Rolnick, 262 N.J. Super. 343, 359 (App. Div. 1993). If the trial judge's conclusions are evidentially supported, we accept them. Cesare, supra, 154 N.J. at 412.

Reversal is reserved only for those circumstances when we determine the factual findings and legal conclusions of the trial judge went "so wide of the mark that a mistake must have been made." Division of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation omitted). It is when we are convinced the trial court's determinations "are so manifestly unsupported . . . as to offend the interests of justice," that we intervene. Rova Farms, supra, 65 N.J. at 484 (internal quotation omitted); Division of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).

Finally, we note a "trial judge's findings are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." Division of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002) (citing Manalapan Realty, L.P. v. Tp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995)). Thus, we are not bound by "[a] trial court's interpretation of the law" and do not defer to legal consequences drawn from established facts. Manalapan Realty, supra, 140 N.J. at 378.

Turning to the issue in this case, 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). The examination of whether a child is emancipated is fact-sensitive. Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997). "[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.'" Ibid. (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)).

Emancipation does not occur automatically by reason of the dependent child reaching the age of majority, now eighteen,3 and in fact, "need not occur at any particular age[;]" however, the fact that a child reaches the age of majority establishes "prima facie, but not conclusive, proof of emancipation." Newburgh, v. Arrigo, 88 N.J. 529, 543 (1982)(citing Alford v. Somerset Cnty. Welfare Bd., 158 N.J. Super. 302, 310 (App. Div. 1978)); Patetta v. Patetta, 358 N.J. Super. 90, 92 (App. Div. 2003); Limpert v. Limpert, 119 N.J. Super. 438, 440 (App. Div. 1972).

The law clearly provides that the event of emancipation ends a parent's obligation to provide child support. Therefore, when the facts support doing so, a Family Part judge has the authority to establish an effective date of emancipation that is prior to the motion filing date. Moreover, such a declaration of emancipation does not constitute a retroactive modification of child support in violation of N.J.S.A. 2A:17-56.23 A. 4 See J.S. v. L.S., 389 N.J. Super. 200, 207 (App. Div. 2006) (holding "retroactive modification of child support is permitted based upon a court's declaration that a child had been emancipated on a date certain"), certif. denied, 192 N.J. 295 (2007); Bowens v. Bowens, 286 N.J. Super. 70, 73 (App. Div. 1995) (holding a duty to support is terminated at emancipation, obviating any judicial obligation to enforce payment); Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995) ("Where there is no longer a duty of support by virtue of a judicial declaration of emancipation, no child support can become due.").

It is well-established that a child over age eighteen enrolled in a full-time educational program requires continued support. See Gac v. Gac, 186 N.J. 535, 542 (2006) ("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."); Newburgh, supra, 88 N.J. at 543 (stating "the privilege of parenthood carries with it the duty to assure a necessary education for children[,]" requiring the continuation of support); Khalaf v. Khalaf, 58 N.J. 63, 71-72 (1971); Patetta, supra, 358 N.J. Super. at 94 ("[W]hile 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."); L.D. v. K.D., 315 N.J. Super. 71, 77 (Ch. Div. 1998) (holding financially unemancipated nineteen-year-old child remained in need of support while she completed her residential substance abuse treatment program and earned her GED); Limpert, supra, 119 N.J. Super. at 442-43 (directing continued child payment for twenty-year-old full-time undergraduate student); Moehring v. Maute, 268 N.J. Super. 477, 480-81 (Ch. Div. 1993) (child past age of majority who is a full-time student, diligent in her studies, getting good grades, and still dependent on her parents, is not emancipated and is entitled to parents' support if they have the ability to pay).

We have recognized that full-time or uninterrupted school attendance is not invariably required to forestall emancipation. See Keegan v. Keegan, 326 N.J. Super. 289, 295 (App. Div. 1999) (holding that a hiatus from college during which the child worked full-time did not result in emancipation); see also Sakovits v. Sakovits, 178 N.J. Super. 623, 630-31 (Ch. Div. 1981)(suggesting that emancipation should not follow a "brief hiatus" between high school and college).

In Filippone, supra, Judge Pressler summarized the controlling principles relating to emancipation:

Emancipation of a child 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. Emancipation may occur by reason of the child's marriage, by court order, or by reaching an appropriate age, and although there is a presumption of emancipation at age eighteen, that presumption is rebuttable. In the end the issue is always fact-sensitive and 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." Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995).

[304 N.J. Super. at 308.]

Further, the court's emancipation determination "involves a critical evaluation of the prevailing circumstances including the child's need, interests, and independent resources, the family's reasonable expectations, and the parties' financial ability, among other things." Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006) (citing Newburgh, supra, 88 N.J. at 545). Nonetheless, 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 statutory presumption is rebuttable). To prevail on a request for dependent support, the custodial parent must prove the child remains a student. Limpert, supra, 119 N.J. Super. at 442-43.

In assessing the child's academic performance, participation, and commitment, the court will often require access to the child's academic records. A custodial parent receiving support for the child is obliged to provide confirmation to the supporting parent of the number of academic credits a child is taking and the child's grade reports. Tretola v. Tretola, 389 N.J. Super. 15, 20 (App. Div. 2006). A child's refusal to disclose those records is itself an indication of the child's asserted independence, and his or her willingness to move beyond his or her parent's sphere of influence. A mature child who has already reached the age of majority may not reasonably expect a parent to continue to provide support while withholding information essential to determining whether support is warranted. See Van Brunt v. Van Brunt, 419 N.J. Super. 327, 333 (Ch. Div. 2010) (holding that a child may not invoke federal statutory right to privacy over her college records, blocking her father's ability to verify her education status, while "simultaneously asserting that she is unemancipated and entitled to mandatory child support and college contribution" from him).

The motion judge expressed an understanding of many of these principles. However, we part company with the judge in his holding that the daughter's performance at KAS Prep for a single semester, and her expressed intent to return there for the Fall 2012 semester, are sufficient to satisfy her burden of proof. This is particularly true where, as here, the record is incomplete due to a failure to provide timely discovery. The record evidence is simply insufficient to support a determination that the daughter is now a full-time student who has "demonstrated a commitment to obtaining her high school diploma."

Addressing the quantum of necessary proofs, while reinforcing that any determination of emancipation remains fact-sensitive, Dolce, supra, 383 N.J. Super. at 17, we conclude that the completion of some evening classes during a single semester of course work in three years, and an expressed intent to register for some courses in the future, does not defeat a motion for emancipation. What is generally required is 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 child pursuing post-secondary education may no longer be dependent when the "child [is] unable to perform adequately in his academic program").5

When there is a gap or hiatus in a child's formal education, courts need to apply a reasonable limitation so that parents are not subject to "an unreasonable open-ended burden." Sakovits, supra, 178 N.J. Super. at 632. Furthermore, our legislature has determined that a parent's obligation to provide a child with a proper education is subject to reasonable limitations. N.J.S.A. 2A:34-23 authorizes court intervention to resolve sensitive family disputes so long as court orders are "fit, reasonable and just," given the circumstances of the parties and the nature of the academic program.

A court must consider the reasons for the child's less than full-time enrollment, or the child's interrupted attendance, as well as all other factors, in resolving the essential inquiry of the child's independence. See Patetta, supra, 358 N.J. Super. at 93-94 ("The demonstrable needs of the child . . . are determinative of the duty of support."). On the other hand, a child's lack of commitment to his or her education, or the unexcused failure to remain a diligent student may be a basis for emancipation.

However, in any request for emancipation based upon a child's secondary educational status, the trial court must still conduct the relevant fact-specific analysis above in order to determine whether the child is outside of her parent's sphere of influence. See, e.g., Patetta, supra, 358 N.J. Super. at 93-94. Here, the motion judge made no explicit finding concerning whether the daughter's enrollment at school was full-time or part-time, and accepted the daughter's testimony that she intended to complete the course work necessary for her high school degree without requiring evidence of actual enrollment at KAS Prep or any evidence of the remaining coursework necessary to attain her degree.

Guided by these principles, we would ordinarily reverse that portion of the Family Part order declaring the daughter "unemancipated" as of January 27, 2012, having determined that plaintiff did not bear her burden of proof. However, we are unconvinced that the proofs presented by the daughter, substituted in as a pro se litigant by the trial judge in the middle of the case, fairly depicted the factual background of her academic efforts. Consequently, while we reverse that portion of the motion judge's order finding the daughter to be "unemancipated" as of January 27, 2012, we remand for further proceedings. The motion judge shall ensure the parties exchange full discovery pertinent to the issues of emancipation, and that any pro se party proceeds with an understanding of the nature of the proceedings and his or her role therein. The motion judge shall liberally consider any supported application by plaintiff to reinstate her status as a party.

Reversed and remanded. We do not retain jurisdiction.

1 Neither plaintiff nor the daughter has chosen to appeal from this unusual procedure and as a consequence we do not address the propriety of the order of substitution. Cf. Martinetti v. Hickman, 261 N.J. Super 508, 513 (App. Div. 1993) ("So unseemly a course should be avoided whenever possible"). Nonetheless, the judge's order, directing a nineteen-year-old individual without a high school degree to assume the burden of proving her unemancipated status, informs, in part, our decision to remand the matter.

2 It is unclear how many of those credits are attributable to the daughter's attendance at her local high school up to 2009.

3 See N.J.S.A. 9:17B-3 (stating with limited exceptions that "every person eighteen or more years of age shall in all other matters and for all other purposes be deemed to be an adult").

4 N.J.S.A. 2A:17-56.23a provides in pertinent part:

No payment or installment of an order for child support, or those portions of an order which are allocated 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 either directly or through the appropriate agent.

5 We do not mean to imply that a student must pass every class taken or that a full-time course load is always required to forestall emancipation. Each case, as noted, is fact-sensitive and a court must review the totality of the circumstances in deciding each case.