Lisa Llewelyn v. James Shewchuk

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0596-13T1
LISA LLEWELYN, f/k/a LISA SHEWCHUK,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
April 13, 2015
v.
APPELLATE DIVISION
JAMES SHEWCHUK,
Defendant-Respondent.
________________________________________
Argued October 15, 2014 – Decided April 13, 2015
Before Lihotz, Espinosa and Rothstadt.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Camden
County, Docket No. FM-04-271-02.
Michael P. Albano argued the cause for
appellant Adrianna Shewchuk (Albano & Viola,
L.L.C., attorneys; Mr. Albano, on the
briefs).
Maury K. Cutler argued the cause for
respondent James Shewchuk.
Respondent Lisa Llewelyn has not filed a
brief.
The opinion of the Court was delivered by
ROTHSTADT, J.A.D.
Appellant, Adrianna Shewchuk, the parties' adult daughter,
appeals from the Family Part's August 23, 2013 order granting
defendant's motion to terminate child support because she was
emancipated, which the court entered with plaintiff's consent.
Appellant appeared as an "[i]nterested [p]arty" and participated
in the motion.1 On appeal, she argues she is not emancipated as
she "has not moved beyond [her parents'] sphere of influence or
responsibility . . . and has not obtained an independent status
of her own[.]" Defendant James Shewchuk argues in opposition
his daughter's voluntary actions resulted in her being
emancipated, justifying the court's entry of the subject order.
We have carefully reviewed the record and considered the
arguments presented in light of the applicable legal principles.
We affirm.
We discern the facts from the motion record. Appellant was
born in 1992 to plaintiff and her biological father. The
parties were married in August 1994, and defendant adopted
appellant that same year. Approximately a year later, a child
was born to the parties. The parties divorced in 2002 and
shared joint custody of the two children. Plaintiff was
designated as the parent of primary residence and defendant was
1
The court did not enter an order permitting her intervention.
See R. 4:33.
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to pay child support and contribute to the children's college
costs.
In April 2013, defendant filed a motion seeking various
relief, including having appellant declared emancipated.
According to defendant's supporting certification, he learned
appellant left plaintiff's home and moved into the home of her
biological father as of January 1, 2013, she was not attending
school (she graduated from high school in 2011), and was
working. In her responsive certification, plaintiff confirmed
appellant moved in with her biological father on January 1, but
plaintiff thought the move was only temporary. However, as
appellant never returned to her residence, plaintiff "join[ed]
in on [d]efendant's [m]otion to emancipate [appellant]
immediately" and consented to terminating the child support
order and crediting defendant with any overpayment.
Appellant filed two certifications in opposition to
defendant's motion. In her first certification, she confirmed
she left her mother's home in December 2012 to live with her
biological father, although she never identified a reason for
the move. She further stated she was a "full-time student at" a
community college as she "started taking classes in the summer
of 2011 . . . [and she was] continuing [her] education" at a
different community college "pursuing an associate's degree and
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then . . . plan[ning] on continuing [her] education in the
medical field." In support of her statement, she provided a
copy of her college transcript from the first school she
attended. Appellant also confirmed she was working part-time at
a doughnut shop, earning $7.75 per hour. Based on these facts,
appellant argued she was "not emancipated," "[could not]
support" herself "or live independently." According to
appellant, her "biological father and his wife [were] supporting
[her]."
The "unofficial" community college transcript appellant
provided revealed she took one course in the summer of 2011, for
which she did not receive college credits. In the ensuing year
she took thirty credits, an additional three credits in the
summer of 2012 and thirteen more credits in the fall term. She
did not provide transcripts from the second school, but instead
supplied "Registration Statement and Bill" documents issued by
the school. Those statements, for the period after she left her
mother's home, show appellant registered for eight credits for
spring 2013 and twelve credits for the fall 2013 semester. A
course schedule form for the spring 2014 semester indicated
appellant intended to take twelve credits.
Appellant also filed a supplemental certification in
further opposition to her father's motion. In that
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certification, appellant confirmed she was registered for the
fall 2013 semester at the second school, she was taking four
classes and her "natural father's wife paid [the] bill." She
also explained in the spring 2013 semester she originally
registered for four classes for eleven credits, dropped a class
and completed the remaining eight credits. Appellant stated
that her "natural father's wife paid $705.25" of the $1024
tuition bill and $441.10 for her books.
Appellant also stated she had "been seeing [her] doctors
for depression and anxiety[,]" and attached a copy of a
"Clinical Visit Summary" for an examination conducted on July
22, 2013, by an internist and a July 22, 2013 letter from a
psychologist. The summary listed the symptoms that the
physician addressed during the examination, recorded her vitals
and listed her medications, which included anti-anxiety and
anti-depressive medications. It did not indicate a diagnosis.
The psychologist's letter, addressed "to whom it may concern,"
stated "appellant has been a patient of mine since March 2013,
and is diagnosed with an anxiety disorder with mixed anxiety and
depression related to her family situation."
The court considered oral argument on August 23, 2013.
Counsel for appellant and both parties appeared. At the
conclusion of counsel's arguments, the court relied upon our
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decision in Filippone v. Lee, 304 N.J. Super. 301 (App. Div.
1997), found appellant left her mother's home and was being
supported by "other people," and concluded "by her own choosing,
she . . . moved beyond the sphere of influence and
responsibility exercised by her parents, and she is now
independent of her parents." The court entered an order
memorializing its decision and this appeal followed.
Clear standards guide our limited review. We "do not
disturb the factual findings and legal conclusions of the trial
judge unless we are convinced that they are so manifestly
unsupported by or inconsistent with the competent, relevant and
reasonably credible evidence as to offend the interests of
justice . . . . " Rova Farms Resort, Inc. v. Investors Ins. Co.
of Am., 65 N.J. 474, 484 (1974) (citation and internal quotation
marks omitted). Also, "[b]ecause of the family courts' special
jurisdiction and expertise in family matters, appellate courts
should accord deference to family court factfinding." Cesare v.
Cesare, 154 N.J. 394, 413 (1998). 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."
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Beck v. Beck, 86 N.J. 480, 496 (1981) (citation and internal
quotation marks omitted).
However, we confer no deference to a trial court's
interpretation of the law, which we review de novo to determine
whether the judge correctly adhered to applicable legal
standards. See Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995). 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." N.J. Div. of Youth &
Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citation and
internal quotation marks 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 citation and
quotation marks omitted) accord N.J. Div. of Youth & Family
Servs. v. E.P., 196 N.J. 88, 104 (2008).
We begin our review by recognizing a child's right to
pursue support from his or her parents. Children of divorced
parents have the right "to be supported at least according to
the standard of living to which they had grown accustomed prior
to the separation of their parents." Pascale v. Pascale, 140
N.J. 583, 592 (1995) (citations and internal quotation marks
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omitted). "[O]ne 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." Colca v. Anson, 413
N.J. Super. 405, 414 (App. Div. 2010) (citations and internal
quotation marks omitted). "The obligation to provide child
support is [i]ngrained into our common law, statutory, and rule-
based jurisprudence." Ibid. (citations and internal quotation
marks omitted). "Accordingly, a parent is obliged to contribute
to the basic support needs of an unemancipated child to the
extent of the parent's financial ability[.]" Ibid. (alteration
in original)(citation and internal quotation marks omitted).
"[I]t is also firmly established that child support is for
the benefit of the children; therefore, the right to receive
support belongs to the children, not the custodial parent."
Ibid. (citations omitted). A child's right to support is,
therefore, enforceable not only at the insistence of a custodial
parent against a non-custodial parent, but at the child's
insistence as well. See Uniform Parentage Act, N.J.S.A. 9:17-
45(a) and (b); and -53 (c)(permitting an adult child to bring an
action for paternity and support up to the age of twenty-three);
and Sakovits v. Sakovits, 178 N.J. Super. 623, 631 (Ch. Div.
1981) (holding that a previously emancipated child should not
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"forever . . . be estopped from seeking . . . contribution from
his parents" towards beginning or resuming his education).
Enforcement by the child is not necessarily defeated by the
fact that she has reached the age of majority. "In certain
situations, parents still have an economic duty to support
children after their eighteenth birthday, . . . ." N.J. Div. of
Youth & Family Services v. W.F., 434 N.J. Super. 288, 296 (App.
Div.) (quoting Newburgh v. Arrigo, 88 N.J. 529, 543 (1982)),
certif. denied, 218 N.J. 275 (2014)). "[I]n appropriate
circumstances, the privilege of parenthood carries with it the
duty to assure [for example] a necessary education for
children." Newburgh, supra, 88 N.J. at 543; see also 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.").
A determination of emancipation is a legal concept, imposed
when the fundamental dependent relationship between parent and
child ends. See Dolce v. Dolce, 383 N.J. Super. 11, 17 (App.
Div. 2006) (stating emancipation is "the conclusion of the
fundamental dependent relationship between parent and child").
It is not automatic and "need not occur at any particular age
. . . ." Newburgh, supra, 88 N.J. at 543. When the
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circumstances surrounding the parent-child relationship support
a finding the child is emancipated, "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, supra,
304 N.J. Super. at 308. However, a child's right to support is
also 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).
The law also provides that once a child reaches the age of
majority, now eighteen, N.J.S.A. 9:17B-3, a parent has
established "prima facie, but not conclusive, proof of
emancipation." Ibid. (citations omitted). Once the presumption
is established, the burden of proof to rebut the statutory
presumption of emancipation shifts to the party or child seeking
to continue the support obligation. See Filippone, supra, 304
N.J. Super. at 308. The presumption of emancipation may be
overcome by evidence that a dependent relationship with the
parents continues because of the needs of the child. Dolce,
supra, 383 N.J. Super. at 18.
Deciding whether a child is emancipated requires a fact-
sensitive analysis. Newburgh, supra, 88 N.J. at 543. "[T]he
essential inquiry is whether the child has moved beyond the
sphere of influence and responsibility exercised by a parent and
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obtains an independent status of his or her own." Filippone,
supra, 304 N.J. Super. at 308 (citations and internal quotation
marks omitted). A 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, supra, 383 N.J. Super. at18 (citing Newburgh, supra, 88 N.J. at 545).
The critical evaluation required for emancipation
determinations typically necessitates a plenary hearing,
especially "when the submissions show there is a genuine and
substantial factual dispute[,]" which the trial court must
resolve. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div.
2007); see also Tretola v. Tretola, 389 N.J. Super. 15, 20 (App.
Div. 2006) (reversing motion on emancipation because the court
"failed to recognize there were material facts in dispute and
evidence beyond the motion papers necessary for resolution of
the matter" required a plenary hearing); Conforti v. Guliadis,
128 N.J. 318, 322 (1992) (holding plenary hearings are required
when there are "contested issues of material fact on the basis
of conflicting affidavits"). However, "[a]s is particularly the
case in matters that arise in the Family Part, a plenary hearing
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is only required if there is a genuine, material and legitimate
factual dispute." Segal v. Lynch, 211 N.J. 230, 264-65 (2012).
Following our review, we conclude appellant's opposition to
defendant's motion did not trigger the obligation for a plenary
hearing, Harrington v. Harrington, 281 N.J. Super. 39, 47 (App.
Div.), certif. denied, 142 N.J. 455 (1995), because the
certifications filed did not present a material factual dispute.
"All of the relevant material was supplied to the motion judge
. . . at the time of the original application . . . ." Fineberg
v. Fineberg, 309 N.J. Super. 205, 218 (App. Div. 1998). "A
plenary hearing would adduce no further facts or information,"
ibid., as it was undisputed appellant voluntarily moved out of
her mother's home to live with her biological father, attended
community college part-time, had her expenses paid for by his
wife, worked and was under a doctor's care for anxiety and
depression. No other facts were raised.
Appellant argues although she is a legal adult and chose to
relocate to her biological father's home, she remains a student
and needs financial assistance, now provided by a third party
who has no legal obligation to do so. Appellant has presented
no legal authority directly on point to support her claim she is
not emancipated under these circumstances.
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In cases involving minors or adult children with special
needs, we determined "residence by a minor apart from his
parents does not by itself result in emancipation." Filippone,
supra, 304 N.J. Super. at 311 (citation omitted). We also
observed: "Other states have, even more to the point, expressly
held that a troubled minor's removal from his parents' home to a
public or private institutional alternative or even to the home
of friends or relatives does not relieve the parents of their
support obligation during minority provided the child is not
entirely self-supporting." Ibid. (citations omitted). In L.D.
v. K.D., 315 N.J. Super. 71 (Ch. Div. 1998), the Family Part
refused to emancipate a nineteen year-old high school student
who, with the aid and consent of her mother, the custodial
parent, lived in an apartment with roommates so she could finish
her studies in the same school district. Id. at 76-77. The
court relied on the fact that the child, who had handicaps and
disabilities, "was pursuing her senior year of high school [and]
was completely financially dependent upon her mother who also
utilized the child support paid by her father to finance [the
child's] living arrangement." Id. at 77.
We find appellant's situation to be extremely different.
Although she provided information about her treatment for
depression and anxiety, there was no evidence her issues
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interfered with her ability to be independent. Also, unlike the
cases we previously considered, there was no evidence of her
parents continuing to provide her with support once she left her
mother's home. Rather, to the extent appellant required any
support, she voluntarily relied upon support provided by others
who were not under any legal obligation to provide her with
anything.
We conclude the Family Part judge correctly determined
appellant failed to rebut the presumption of her emancipation.
It was undisputed she voluntary left her mother's home at the
age of twenty to live with her biological father. She simply
withdrew from her parents' supervision and control, obtained
part-time employment, sporadically attended school and arranged
for her support in reliance upon the financial relationship she
entered into with her biological father and his wife. The
Family Part correctly found under these circumstances appellant
emancipated herself and the motion judge properly applied the
law to these facts.
Affirmed.
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