WIOLETA SCHOTTEL v. PIOTR KUTYBA

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

WIOLETA SCHOTTEL,

Plaintiff-Appellant,

v.

PIOTR KUTYBA,

Defendant-Respondent.

_____________________________________

February 3, 2015

 

Submitted December 16, 2014 Decided

Before Judges Accurso and Manahan.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1008-05.

Wioleta Schottel, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Plaintiff Wioleta Schottel filed this unopposed appeal from an unopposed motion granting her request to emancipate her daughter and terminate her child support obligation. Plaintiff appeals because the Family Part judge, without a statement of reasons, made the order effective as of its date of entry instead of on the date the young woman joined the military some six months before. Because plaintiff's prima facie showing that her eighteen year old daughter had enlisted in the army on July 8, 2013, gave rise to a presumption of emancipation as of that date, which was not rebutted, we conclude that the court erred in failing to make the order retroactive to the daughter's date of enlistment.

We draw the facts from the certification plaintiff filed in support of her motion. The parties' daughter was born on December 7, 1994. She graduated from high school at eighteen on June 24, 2013 and enlisted in the Army Reserves two weeks later on July 8. After two months of basic training, she was discharged for medical reasons. She did not enroll in college, and was, instead, searching for full-time work the following fall.

At the time plaintiff filed her motion in November, she was paying $81 per week in child support, $56 as a current obligation and $25 towards arrears. Plaintiff certified she owed approximately $2000 in arrears as of the filing date of the motion. She argued that her daughter's emancipation occurred on the date of her enlistment in the military or, alternatively, on the date she graduated from high school. Plaintiff requested that the court deem the parties' daughter emancipated as of the date she enlisted in the military and enter an order terminating plaintiff's child support payments retroactive to that date. She further asked that the portion of her payments dedicated to her current obligation after that date be applied to her arrears and that she be allowed twenty days to pay any remaining arrears in a lump sum.

Defendant Piotr Kutyba did not oppose the motion and the court heard the matter on the papers. See R. 1:6-2(b) and (d) and R. 5:5-4(a). The Family Part judge entered an order on December 20, 2013, declaring the parties' daughter emancipated and terminating plaintiff's child support obligation as of the date of the order. The order further directed that child support arrears shall be paid at a rate of $81 per week through Probation and directing that department to adjust plaintiff's account accordingly. Contrary to the mandate of R. 1:7-4, the judge gave no indication of her reasons for the order, either by notation on the order or otherwise.

The law is well settled that emancipation occurs at the point "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)). It is the act "by which a parent relinquishes the right to custody and is relieved of the duty to support a child." Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). Thus a court's declaration of an emancipation date predating the filing date of the motion constitutes an exception to the statutory prohibition against retroactive modification of a child support obligation. 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).

Although many children, of course, continue to be dependent on their parents after attaining their majority while pursuing their educations, parents generally are not under a duty to support children after the age of majority. Newburgh, supra, 88 N.J. at 543. Indeed, proof of majority satisfies a non-custodial parent's prima facie showing of emancipation, shifting the burden to rebut the presumption of emancipation to the custodial parent. See Filippone, supra, 304 N.J. Super. at 308. As plaintiff noted in her motion papers and reiterates here, our courts have long recognized that emancipation can occur upon induction into military service. Slep v. Slep, 43 N.J. Super. 538, 543 (Ch. Div. 1957).

As the parties' daughter had already attained her majority by the time she graduated from high school and then promptly enlisted in the military, her mother's proof of those facts constituted prima facie proof of her emancipation. See Filippone, supra, 304 N.J. Super. at 308. Because the motion went unopposed, the presumption of emancipation the prima facie case created went unrebutted and should have resulted in the emancipation date plaintiff requested, the date of her daughter's enlistment in the military. Accordingly, we reverse and remand for entry of an order establishing the date of emancipation as July 8, 2013, and recalculation of plaintiff's child support arrears accordingly. See Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995). We do not retain jurisdiction.

Reversed and remanded for proceedings consistent with this opinion.