DEBORAH A. CONTE VS. DAVID S. AINSWORTH (FD-12-0446-93, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3337-15T1
DEBORAH A. CONTE,
Plaintiff-Appellant,
v.
DAVID S. AINSWORTH,
Defendant-Respondent.
__________________________________________
Submitted May 25, 2017 – Decided August 31, 2017
Before Judges Lihotz and O'Connor.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex
County, Docket No. FD-12-0446-93.
Deborah A. Conte, appellant pro se.
Jabin & Fleming, LLC, attorneys for
respondent (Christian P. Fleming, on the
brief).
PER CURIAM
Plaintiff Deborah A. Conte (mother) appeals from a March 2,
2016 Family Part order declaring the parties' daughter
emancipated and terminating defendant David S. Ainsworth's
(father) obligation to pay child support. We reverse and remand
for further proceedings.
I
We derive the following facts from the motion record. The
parties' child was born in 1992 and is presently twenty-five
years of age. In 1992, the parties executed an agreement which
established parenting time and a weekly child support amount the
father was to pay the mother. The father agreed to pay child
support until the child was deemed emancipated. At the time the
court declared the child was emancipated, the father was paying
$330 per week. The father never exercised parenting time and
saw the child for the first time when she was an adult.
In their agreement, the parties defined when the child was
to be deemed emancipated. Among other things, emancipation was
to occur "upon the completion of the child's college education."
The agreement did not address the parties' contribution toward
graduate school or, for that matter, college, apart and aside
from the father's agreement to pay child support until the child
completed college.
In May 2015, the child graduated from Caldwell University,
with honors, with a B.A. in psychology and art. The child
managed to graduate from college even though, according to the
mother, the child suffers from debilitating anxiety and
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depression, for which she had been treated with medication and
therapy. In September 2015, the child enrolled in a two-year
program at the same institution to obtain a Master's Degree in
mental health counseling. As she had throughout college, the
child planned to live in her mother's home while attending
graduate school.
One month after the child graduated from college, the
father unilaterally reduced his weekly child support obligation
from $330 per week to $250 per week, and in August 2015, filed a
motion to emancipate the child. The mother filed a cross-motion
to compel, among other things, the father to: (1) pay child
support in the amount of $390 per week; (2) pay arrears in the
amount of $880; (3) pay one-half of the child's graduate school
expenses; (4) reimburse the child $10,647.50, representing one-
half of the student loans the child borrowed to pay for the last
two years of college; (5) provide a completed Financial
Statement for Summary Support Actions and Confidential Litigant
Information Sheet; and (6) pay counsel fees.
In the certification she filed in support of her motion,
the mother stated the cost for the child to attend the graduate
program was about $16,000 per year. Although the child had
obtained student loans in the past, the mother made no mention
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of whether the child sought financial aid to defray graduate
school costs.
The mother noted her income was limited to Social Security
disability benefits of $1470 per month, plus food stamps,
severely restricting her ability to contribute to the cost of
the child's education. However, the mother had used the weekly
child support payments to help pay for the child's food,
shelter, and other living expenses. The mother did not indicate
if the child had any assets or income. She mentioned the father
was a practicing dentist, but did not know his income.
The father's position was straightforward. In his view,
because the child had graduated from college, she was
emancipated under the terms of the parties' agreement.
Therefore, he maintained his obligation to pay child support
should be terminated.
The trial court granted the father's motion to emancipate
the child and to terminate his obligation to pay child support.
The trial court held the child's emancipation was "guided by the
agreement [the parties] entered into back in 1992. . . . Once
she graduated from college, not post graduate, . . . the support
obligation would stop. . . . Typically, under the laws of
emancipation there would be some other considerations, but the
agreement is what it is."
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II
The mother challenges the court's determination to
emancipate the child and terminate the father's child support
obligation. Specifically, she contends the court erred by
focusing on only the parties' agreement to determine the child
was emancipated upon her graduation from college. The mother
maintains the court should have utilized the factors provided by
decisional authority addressing emancipation, such as Newburgh
v. Arrigo, 88 N.J 529 (1982), to determine if the child was in
fact emancipated and, if not, whether the father was obligated
to contribute to the cost of graduate school. She also
complains the court failed to rule on the other points of relief
she sought in her notice of cross-motion.
The father argues the parties' agreement is binding and
thus dispositive on the issue of the child's emancipation. He
also notes that, because there is no relationship between him
and the child, not to mention the child failed to discuss going
to graduate school with him before she enrolled in the graduate
program, under Newburgh, he is not required to contribute to the
cost of graduate school, including paying child support.
At the outset, we review the fundamental legal principals
governing the issues under review. We generally defer to a
trial court's findings of fact, unless they are demonstrated to
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lack support in the record or are inconsistent with the
substantial, credible evidence. Rova Farms Resort, Inc. v.
Inv'rs Ins. Co., 65 N.J. 474, 483-84 (1974). However, we owe no
special deference to a trial court's "interpretation of the law
and the legal consequences that flow from established facts."
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995).
"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) (citing Dunbar v. Dunbar, 190
U.S. 340, 351, 23 S. Ct. 757, 761, 47 L. Ed. 1084, 1092 (1903)).
"[A] parent is obliged to contribute to the basic support needs
of an unemancipated child to the extent of the parent's
financial ability." Martinetti v. Hickman, 261 N.J. Super. 508,
513 (App. Div. 1993).
Parents may agree child support is to terminate upon the
occurrence of a certain event, but the right of a child to be
supported by his or her parents is one that belongs to the child
and cannot be waived by the custodial parent. Patetta v.
Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003) (citing Pascale
v. Pascale, 140 N.J. 583, 591 (1995)). A child's right to
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support is not "defeated merely because both parents are united
in their determination to declare the child emancipated."
Johnson v. Bradbury, 233 N.J. Super. 129, 136 (App. Div. 1989).
"[T]he parental duty to support a child may not be waived or
terminated by a property settlement agreement." Patetta, supra,
358 N.J. Super. at 95; see also Martinetti, supra, 261 N.J.
Super. at 512 (finding right to child support not barred by a
property settlement agreement providing for the termination of
support when the child turned eighteen).
When a child reaches eighteen, the age of majority in this
State, a parent can establish "prima facie, but not conclusive,
proof of emancipation," see Newburgh, supra, 88 N.J. at 543
(citing Alford v. Somerset Cty. Welfare Bd., 158 N.J. Super.
302, 310 (App. Div. 1978), and the burden of persuasion shifts
to the party seeking to maintain support to rebut the
presumption of emancipation. Filippone v. Lee, 304 N.J. Super.
301, 308 (App. Div. 1997).
At that point, in determining whether a child is
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.'" Ibid. (quoting Bishop v. Bishop, 287 N.J. Super.
593, 598 (Ch. Div. 1995)). Such a "determination involves a
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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).
"[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."
Patetta, supra, 358 N.J. Super. at 94. Contributing toward the
cost of a higher education, including graduate school, is a form
of support for an unemancipated child. Gac v. Gac, 186 N.J.
535, 542 (2006). "In appropriate circumstances, parental
responsibility includes the duty to assure children of a college
and even of a postgraduate education such as law school."
Newburgh, supra, 88 N.J. at 544.
However, before considering whether a parent is required to
contribute toward the child's support or higher education, the
question whether the child is emancipated must be answered.
If the child is emancipated, the child's parents have no
obligation to contribute toward the support of that child,
including his or her higher education. But if the child is
unemancipated and is seeking a parent's contribution toward
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higher education, "the next consideration is whether the child
has an aptitude for college." Ricci v. Ricci, 448 N.J. Super.
546, 573 (App. Div. 2017). If so, "then parental ability to
afford the significant cost of college must be examined; it is
not presumed." Ibid. To determine the extent to which a parent
is to contribute toward a higher education, the factors in
Newburgh must be considered.1 Ibid.
1
These factors are:
(1) whether the parent, if still living with
the child, would have contributed toward the
costs of the requested higher education; (2)
the effect of the background, values and
goals of the parent on the reasonableness of
the expectation of the child for higher
education; (3) the amount of the
contribution sought by the child for the
cost of higher education; (4) the ability of
the parent to pay that cost; (5) the
relationship of the requested contribution
to the kind of school or course of study
sought by the child; (6) the financial
resources of both parents; (7) the
commitment to and aptitude of the child for
the requested education; (8) the financial
resources of the child, including assets
owned individually or held in
custodianship or trust; (9) the ability of
the child to earn income during the school
year or on vacation; (10) the availability
of financial aid in the form of college
grants and loans; (11) the child's
relationship to the paying parent, including
mutual affection and shared goals as well as
responsiveness to parental advice and
guidance; and (12) the relationship of the
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Here, the court determined the child was emancipated
because the parties agreed she would be once she finished
college. However, the fulfillment of one of the parties'
definitions of emancipation – graduation from college – was not
dispositive of the issue of the child's emancipation. As
previously stated, the right to child support belongs to the
child, not the parent, and cannot be waived by an agreement
between the parents.
The court was obligated to examine whether the child was in
fact emancipated and, if the child is found unemancipated,
calculate the amount of support she needs and each parent's
obligation toward that need. The court must examine the child's
needs and financial resources to determine the extent of the
child's financial dependence upon her parents, if any, as she
continues her educational endeavors. Many graduate programs
provide teaching assistant positions and other earning
opportunities allowing students to defray living
expenses. Also, the child's ability to earn income, now that
education requested to any prior training
and to the overall long-range goals of the
child.
[Newburgh, supra, 88 N.J. at 545.]
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she has completed undergraduate education, must be weighed when
examining the extent of the child's need for support.
Thereafter, there must be an examination of whether either
parent is obligated to contribute toward the cost of her higher
education, after taking into consideration the Newburgh factors.
These factors govern the outcome and whether and to what extent
the parties are required to contribute toward graduate school
costs.
In addition, the father and child have never had a
relationship. Why that is so may be relevant on the question of
whether the father is required to contribute toward the cost of
the child's higher education. See Philipp v. Stahl, 344 N.J.
Super. 262, 272-73 (App. Div. 2001) (finding the absence of a
relationship between parent and child is "one of the many
factors to be considered when determining post-secondary
support"), rev'd on other grounds, 172 N.J. 293 (2002). Here,
if the child is deemed unemancipated and a party considers the
relationship between the father and child material on the
question of whether the father should contribute to the child's
higher education costs, he or she may raise such issue.
Accordingly, for the reasons provided, we reverse the March
2, 2016 order and remand the matter for further proceedings
consistent with this opinion.
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Finally, the mother complains the court did not address the
other points raised in her notice of cross-motion including,
among other things, her request for child support arrears that
accrued before the court terminated child support. We agree the
court did not explicitly rule on this and other requests,
although many were implicitly denied when the court granted the
father's motion and declared the child emancipated. On remand,
the court shall make explicit rulings on the requests for relief
listed in the mother's notice of cross-motion.
Reversed and remanded for further proceedings consistent
with this opinion. We do not retain jurisdiction.
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