Maura Ricci, N/K/A Maura McGarvey v. Michael Ricci and

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1832-14T1
A-2409-14T1
MAURA RICCI, n/k/a MAURA MCGARVEY,
Plaintiff-Appellant/
Cross-Respondent,
APPROVED FOR PUBLICATION
v.
February 9, 2017
MICHAEL RICCI,
APPELLATE DIVISION
Defendant-Respondent,
and
CAITLYN RICCI,
Intervenor-Respondent/
Cross-Appellant.
_____________________________________
MAURA RICCI, n/k/a MAURA MCGARVEY
Plaintiff-Respondent,
v.
MICHAEL RICCI,
Defendant-Appellant,
and
CAITLYN RICCI,
Intervener-Respondent.
_____________________________________
Submitted November 3, 2016 - Decided February 9, 2017
Before Judges Lihotz, Hoffman and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Camden
County, Docket No. FM-04-0239-98.
Petersen & Martone, attorneys for appellant/
cross-respondent (Kelli M. Martone, on the
briefs).
Morgenstern & Rochester, LLP, attorneys for
respondent/cross-appellant (Andrew L.
Rochester, on the brief).
Smithbridge, LLP, attorneys for appellant
Michael Ricci in A-2409-14, join in the
brief of appellant/cross-respondent Maura
Ricci in A-1832-14.
The opinion of the court was delivered by
LIHOTZ, P.J.A.D.
More than thirty years have passed since the Supreme Court
issued Newburgh v. Arrigo, 88 N.J. 529 (1982), which held "the
privilege of parenthood carries with it the duty to assure a
necessary education for children." Id. at 543. Necessary
support for unemancipated children could include contribution
toward the cost of a college education, even though the child
has attained the age of majority. Id. at 543. Since then,
courts have struggled to define the scope of this parental
obligation, as circumscribed by facts and circumstances unique
to each family. In this case, we examine the court's role in
navigating the interplay between emancipation and a parent's
2 A-1832-14T1
obligation to provide for a child's support in the form of
college tuition, when the child has left the parent's home.
Plaintiff Maura McGarvey appeals from several Family Part
orders mandating she and defendant Michael Ricci, plaintiff's
former husband, contribute to the college tuition expenses of
intervenor, their now twenty-three-year-old daughter, Caitlyn
Ricci. Plaintiff and defendant agreed Caitlyn was emancipated
when she left her mother's home to reside with her grandparents
at age nineteen. Plaintiff and defendant filed a consent order
terminating child support. Thereafter, Caitlyn moved to
intervene in the matrimonial matter, seeking to vacate the
emancipation order and require her parents to provide funds
allowing her to attend college. In the October 11, 2013 order,
the judge permitted Caitlyn to intervene and required plaintiff
and defendant to pay the tuition cost for Gloucester County
Community College (the community college), which was less than
$2,000.
Prior to completing her associate's degree, Caitlyn
transferred to Temple University, in Philadelphia, Pennsylvania
(the university). She moved for plaintiff and defendant to pay
annual tuition for the university, which, after awarded
financial aid, was significantly more than the tuition at the
community college. On October 31, 2014, a newly assigned judge
3 A-1832-14T1
considered Caitlyn's motion. He concluded the issue was
adjudicated and governed by the October 11, 2013 order.
Accordingly, without benefit of a plenary hearing or review of
financial documentation, the newly assigned judge "enforced" the
October 11 order and required plaintiff and defendant satisfy
the university's outstanding tuition, fees, and the cost of
books.
Plaintiff and defendant sought reconsideration and were
assigned to return to the initial motion judge. Unfortunately,
he limited his review to the provisions of the first order, not
the October 31, 2014 order. Thus, the judge declined to examine
whether and to what extent plaintiff and defendant could and
should pay tuition to the university. He noted Caitlyn did not
discuss attending the university in her October 2013 motion,
revealing only plans to attend a state university once she
earned her associate's degree. In the December 6, 2014 order,
the judge considered the factors identified in Newburgh, as to
the request plaintiff and defendant satisfy community college
tuition. There was no discussion regarding payment for the
university. In that regard, the judge declined to reconsider
the order to pay the university tuition set forth in the October
31, 2014 order.
4 A-1832-14T1
Plaintiff appeals from the October 11, 2013, October 31,
2014 and December 6, 2014 orders. Defendant also appeals from
these orders. The matters were consolidated and we granted
defendant's motion to join in and rely on the brief submitted by
plaintiff. Caitlyn filed a cross-appeal, challenging plaintiff's
attack on the October 11, 2013 order and argued the denial of
her request for attorney's fees in the October 31, 2014 and
December 6, 2014 orders was error.
Following our review, we conclude the judge properly
allowed Caitlyn to intervene in this action to advance her
request for support. However, the record is void of the basis
establishing Caitlyn was unemancipated at the time of the
October 11, 2013 review. As more thoroughly discussed in our
opinion, emancipation is a legal determination, which must be
resolved prior to awarding support, including payment of college
costs. Because this analysis is absent, we reverse and vacate
the provisions of the challenged order addressed to emancipation
and payment of support. We remand this matter for plenary
review.
I.
These facts are found in the record. Plaintiff and
defendant were divorced when Caitlyn was four years old.
Plaintiff was the parent of primary residence, defendant
5 A-1832-14T1
exercised regular parenting time and provided child support.
The record reflects the parents shared decision-making
responsibility regarding Caitlyn's care.
Caitlyn graduated from high school in June 2012. Various
actions resulted in the conclusion Caitlyn was not ready to live
away at college. With her parents' urging and support, Caitlyn
enrolled part-time in the community college. However,
estrangement with her parents heightened, and Caitlyn left her
mother's home in February 2013, to reside with her paternal
grandparents. Plaintiff and defendant agreed Caitlyn was
emancipated. This decision was memorialized in a March 30, 2013
consent order terminating defendant's obligation to pay child
support.
Legal action followed as Caitlyn moved to intervene in her
parents' dissolution action. She sought to vacate the March 30,
2013 order of emancipation, compel payment of her full-time
community college education costs, provide financial assistance
to acquire a new car, continue her health insurance coverage,
and pay counsel fees and costs. Plaintiff and defendant
objected to the relief Caitlyn requested. Specifically, both
parents challenged Caitlyn's request to intervene and asserted
her conduct demonstrated her desire to be independent of
parental control, which obviated any obligation for support.
6 A-1832-14T1
In an accompanying certification, Caitlyn briefly mentions
the family dynamics, stating, "substantial personal problems
. . . necessitated that I move out of my mother's home . . . .
I did not fit in well with her new family." She also stated "I
. . . had substantial problems with my father's new family[,]
and thus he was not an option."
Plaintiff and defendant's pleadings cast a different light
on the parent-child relationship. Both parents expressed their
love for Caitlyn and a willingness to address issues as a
family; however, plaintiff and defendant separately opposed
Caitlyn's motion based on her conduct and choices. Their
certifications detail the difficulties experienced with
Caitlyn's dangerous decisions and disobedience, which started
while she was in high school. Caitlyn's conduct included
smoking marijuana while driving, engaging in underage drinking
and sexual activity, participating in explicit sexual
conversations on the internet, and attempting to hurt herself.
Plaintiff explained she attempted to counsel her daughter,
who nevertheless did not obey her requests, expressed dislike
for imposed rules, and chose to leave her home. Plaintiff
asserted Caitlyn "willingly, knowingly, [and] voluntarily left
and went [out] on her own."
7 A-1832-14T1
Defendant discussed his view of Caitlyn's trouble with
alcohol, drugs, and impulsive behavior, as well as her acts of
opposition to plaintiff's imposition of discipline, including a
curfew and the obligation to perform household chores.
Defendant related his efforts to discuss these concerns with
Caitlyn, which she repeatedly rebuffed. He stated Caitlyn
refused to answer her parents' texts or calls prior to filing
her motion. Caitlyn had not spoken to either parent for six
months; she ignored birthdays, a family member's illness, and
mother and father's day. Finally, defendant pointedly objected
to Caitlyn's decision to reside with his parents, showing
unequivocally he was estranged from them and blamed them for
exacerbating parental relationship difficulties with Caitlyn.
The record also informed regarding Caitlyn's college
decisions. These facts are undisputed. When she was accepted
to attend Montclair State University, plaintiff and defendant
discussed contributing $5,000 each towards annual college costs,
with the remainder satisfied by Caitlyn obtaining student loans.
However, because of Caitlyn's behavior, it was agreed she was
not ready to live away from home, and should first attend
community college. Defendant paid the summer and fall 2012
community college tuition, and Caitlyn attended part-time. In
the winter of 2012, Caitlyn sought to attend the Disney College
8 A-1832-14T1
program in Florida. Plaintiff and defendant jointly agreed to
support Caitlyn's effort as a way of testing her readiness to
live on her own. They fully paid for her participation and
assisted her move to Florida. Unfortunately, within a month of
arriving, Caitlyn was expelled for underage alcohol use as the
host of a party in the dorms.
The parties disagreed on events occurring after Caitlyn
returned from Florida. Plaintiff and defendant wanted Caitlyn
to return to community college to compete her associate's
degree. With defendant's support, plaintiff outlined a course
of discipline, work, and community college courses demanded of
her daughter. Plaintiff recounted how Caitlyn rejected these
attempts to restore discipline and make-up missed college
credits, stating she wanted instead to spend the summer with
friends. Plaintiff asserted Caitlyn indulged in what she
labeled frivolous spending, inappropriate use of Facebook, and
multiple nights spent away from home. Plaintiff initiated
counselling, but Caitlyn attended only one session and refused
to continue. Caitlyn then decided to move to her grandparents'
home where she was not restricted.
Caitlyn's version expressed a different story. Caitlyn
maintained she did not "run to her grandparents in defiance";
rather, plaintiff "kicked [her] out" when she returned from
9 A-1832-14T1
Disney. Alternatively, Caitlyn attributed the move to her
grandparents as her parents' "suggestion." Further, she
characterized the behavior outlined by her parents as "things
that teenagers typically do" and insisted the control exerted by
her parents' demands was "impossible." Caitlyn asserted she was
following the college path her parents dictated and accepted all
conditions imposed, except the demand to work full-time and take
three summer classes. She insisted the imposed unrealistic
demands pushed her beyond the sphere of parental influence.
Caitlyn initiated litigation only after plaintiff and
defendant separately informed her they would not pay her
community college costs because she was not residing with either
of them. Caitlyn asserted she was a full-time community college
student and, upon completion of her associate's degree, planned
to attend Rowan University. Pay stubs reflected Caitlyn grossed
more than $400 per week waitressing.
During oral argument, in response to plaintiff's suggested
request for a plenary hearing to determine whether Caitlyn was
unemancipated, the Family Part judge stated:
Well, there may be a time in a future
year that you need a plenary hearing, but
based on the cost of the college for this
year, I really think that would be overkill
and I feel that the [c]ourt would have
enough based upon the excellent briefs and
the certifications that were submitted that
I could make a decision today.
10 A-1832-14T1
Defendant's counsel asked whether the order was intended to
address just the current community college tuition request or
possible future costs at a four-year school. The judge answered
"I don't think I can do that."
The judge granted Caitlyn's motion to intervene.
Describing the matter as a "unique situation," he deemed Caitlyn
"un-emancipated [sic] solely for the purpose of a potential
contribution from [her parents] as it relates to college costs."
In rendering his order, the judge rendered his order, stating he
sought "to make the best economic decision[,]" and limited the
order's provisions to payment of community college costs for the
2013-2014 school year. He ordered Caitlyn to seek and apply for
loans and scholarships to reduce expenses. Caitlyn represented
she had done so and was awarded $2,500. Noting financial
information was not in the record, the judge stated plaintiff
and defendant were to split remaining "costs related to . . .
tuition, fees and books."
Also, the order stated:
4. For subsequent school years, before
determining . . . [p]laintiff and
[d]efendant's contribution to Caitlyn's
tuition, fees and book costs, Caitlyn shall
apply for all eligible loans and apply all
eligible scholarships toward her tuition,
fees, and book[] costs.
11 A-1832-14T1
5. On future matriculation (beginning the
[f]all of 2014), the [p]laintiff and
[d]efendant shall exchange tax returns and
the three (3) most recent paystubs in
regards to determining a child support
percentage for each party. This child
support percentage breakdown will determine
the amount that the parties will pay towards
Caitlyn's college tuition and books[,] after
Caitlyn has obtained all financial aid,
grants, and scholarships.
. . . .
9. For future academic years, all parties
will attend economic mediation if they
cannot agree to Caitlyn's college tuition,
fees, and books.
The order denied Caitlyn's request for contribution toward
the purchase of a new car and found plaintiff always maintained
health insurance coverage for Caitlyn, making the request moot.
Finally, "in a compensatory manner," the judge awarded Caitlyn
$1,000 in counsel fees and costs, payable $500 by each parent,
which "shall come off the parties' contribution towards
Caitlyn's college costs for tuition, fees and books for the
2013-[20]14 academic year."
Caitlyn was accepted to attend the university, commencing
in the fall 2014. She notified plaintiff she was leaving
community college and requested plaintiff complete the Free
Application for Federal Student Aid (FAFSA). Plaintiff agreed
to do so but suggested Caitlyn first obtain her associate's
12 A-1832-14T1
degree, noting she and defendant could not afford the
university's tuition cost.
Caitlyn filed a motion to enforce litigant's rights,
seeking an order compelling plaintiff and defendant to attend
economic mediation to fix their respective contributions toward
the university's tuition, fee and book costs and to reimburse
past community college costs.
Caitlyn stated the university's financial aid evaluation
"was calculated as if there would be no parenting [sic]
contribution." Total aid reduced the $27,000 annual tuition and
fees by $19,180 per year, of which $14,000 represented student
loans. Caitlyn believed it reasonable to incur only federally
subsidized student loans, limiting her debt to $5,500.
Consequently, she required plaintiff and defendant to allocate
the remaining $17,000 per year. Thereafter, Caitlyn met with
the university's Senior Assistant Director of Student Financial
Services. When Caitlyn explained she was "unemancipated" for
college expense purposes, the university rescinded the financial
aid package and required one parent complete the FAFSA.
Plaintiff opposed Caitlyn's motion; defendant did not file
pleadings but appeared. The case was assigned to a different
Family Part judge. The judge ordered the parties comply with
the October 11, 2013 order's prerequisite for economic
13 A-1832-14T1
mediation. His September 10, 2014 order also required they
exchange financial information for the purposes of mediation,
and plaintiff agreed to complete the FAFSA parental disclosure.
The parties identified a mediator, and the session occurred in
early October 2014.1 Mediation was not successful.
Returning to the newly assigned motion judge, Caitlyn
asserted her revised financial aid award was $9,250 per year.
She applied for three of four additional loans suggested by
plaintiff, but the lenders required co-signors. Caitlyn argued
the October 11, 2013 order directed plaintiff and defendant to
allocate the university tuition and requested an order directing
them to split the cost equally. Plaintiff and defendant opposed
this request, asserting the order was limited to 2013-2014
community college tuition and left open other college costs.
Further, the parents maintained the judge never considered
payment of the university's tuition, which they agreed they
could not afford.
The newly assigned motion judge viewed plaintiff and
defendant's request not as a change in circumstances, but as a
request for reconsideration of the October 11, 2013 order. He
concluded reconsideration was not properly before him and must
1
Plaintiff's brief states mediation was held on October 2,
while Caitlyn and plaintiff's pleadings identify mediation was
held on October 9.
14 A-1832-14T1
be handled by the initial motion judge. Enforcing his
interpretation of that order's provisions, he ordered plaintiff
and defendant to satisfy the university tuition 40% and 60%
respectively. The October 31, 2014 order also scheduled a
plenary hearing to decide reimbursement of community college
costs and ordered the parties to mediate any modification
requests or future disputes. Finally, the judge denied
Caitlyn's application for attorney's fees.
Plaintiff and defendant moved for reconsideration of the
October 31, 2014 order. Both argued the order was unfounded, as
Caitlyn unilaterally left plaintiff's home; refused to
compromise her demands or return home; transferred to an
expensive out-of-state university; abandoned completion of
community college or attending Rowan. Moreover, Caitlyn refused
to communicate with her parents and continued to act
independently, without regard to parental input. Finally, the
court never reviewed whether and to what extent plaintiff and
defendant should or could pay for any expenses beyond community
college tuition.
Caitlyn opposed the motions and filed a cross-motion for
counsel fees. She additionally filed a separate motion seeking
an order of contempt, sanctions, and enforcement of litigant's
rights. Disposition was returned to the original motion judge.
15 A-1832-14T1
Concluding the October 11, 2013 order was interlocutory,
the judge limited his review to reconsideration of that order
and declined to reconsider challenges to the October 31, 2014
order, stating "for today, I can't address that." The judge
agreed to clarify Caitlyn's obligation to apply for "all
eligible loans . . . and all eligible scholarships." In his
oral opinion, he explained Caitlyn must attempt to apply for and
make a reasonable effort to secure "five or six" scholarships.
He then reviewed each provision of the October 11, 2013 order
and concluded the requirement to pay community college tuition
was "de minimis." The judge ordered plaintiff and defendant to
equally satisfy the claimed balance of $906 and rejected
Caitlyn's request for attorney's fees.
This court consolidated plaintiff's appeal and Caitlyn's
cross-appeal. Defendant joins in the brief submitted by plaintiff.
II.
A.
"When reviewing a trial judge's order, we defer to factual
findings 'supported by adequate, substantial, credible
evidence.'" Spangenberg v. Kolakowski, 442 N.J. Super. 529, 535
(App. Div. 2015) (quoting Gnall v. Gnall, 222 N.J. 414, 428
(2015)). However, reversal is warranted when the expressed
factual findings are "so manifestly unsupported by or
16 A-1832-14T1
inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interests of justice." Elrom
v. Elrom, 439 N.J. Super. 424, 433 (App. Div. 2015) (quoting
Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J.
474, 484 (1974)).
Discretionary determinations, supported by the record, are
examined to discern whether an abuse of reasoned discretion has
occurred. Gac v. Gac, 186 N.J. 535, 547 (2006).
While an "abuse of discretion . . . defies
precise definition," we will not reverse the
decision absent a finding the judge's
decision "rested on an impermissible basis,"
considered "irrelevant or inappropriate
factors," Flagg v. Essex Cnty. Prosecutor,
171 N.J. 561, 571 (2002) (citations . . .
omitted), "failed to consider controlling
legal principles or made findings
inconsistent with or unsupported by
competent evidence." Storey[v. Storey], 373
N.J. Super. [464,] 479 [(App. Div. 2004)].
[Elrom, supra, 439 N.J. Super. at 434.]
This court does not accord the same deference to a trial
judge's legal determinations. Reese v. Weis, 430 N.J. Super.
552, 568 (App. Div. 2013). Rather, all legal issues are
reviewed de novo. Ibid.
B.
As a preliminary matter, we examine Caitlyn's cross-appeal
urging dismissal of plaintiff's attack on the October 11, 2013
order as time barred. R. 2:4-1(a) (requiring appeals be filed
17 A-1832-14T1
within forty-five days of the date final judgment or order is
entered). "Where the appeal is untimely, the Appellate Division
has no jurisdiction to decide the merits of the appeal." In re
Hill, 241 N.J. Super. 367, 372 (App. Div. 1990) (citing Alberti
v. Civil Service Comm'n, 41 N.J. 147, 154 (1963)).
"Generally, an order is considered final if it disposes of
all issues as to all parties." Silviera-Francisco v. Bd. of
Educ. of City of Elizabeth, 224 N.J. 126, 136 (2016). "By
definition, an order that 'does not finally determine a cause of
action but only decides some intervening matter pertaining to
the cause[,] and which requires further steps . . . to enable
the court to adjudicate the cause on the merits[,]' is
interlocutory." Moon v. Warren Haven Nursing Home, 182 N.J.
507, 512 (2005) (alterations in original) (quoting Black's Law
Dictionary 815 (6th ed. 1990)).
The distinction between a final order, appealable of right,
and an interlocutory order, which is not, is a "principle . . .
easily stated," but "not always easily applied." Wein v.
Morris, 194 N.J. 364, 377 (2008). The distinction is critical
because finality is a jurisdictional prerequisite for appeal, R.
2:2-3, and neither the parties nor the trial judge "may invest
the Appellate Division with jurisdiction it does not otherwise
18 A-1832-14T1
have." Pressler & Verniero, Current N.J. Court Rules, cmt.
2.2.1 on R. 2:2-3 (2017).
Without consideration of the legal sufficiency of its
terms, we note the October 11, 2013 order answered the question
of whether Caitlyn could intervene in her parents' matrimonial
action, imposed a limited provision regarding Caitlyn's
emancipation, and fixed parental obligations for the 2013-2014
community college tuition costs. The order's terms also
addressed "future matriculation" and "subsequent school years,"
imposing executory obligations on all parties. Had the order
resolved all issues regarding Caitlyn's post-secondary school
education, it would have been final. However, its terms, as
well as the judge's remarks on the provisions, show no final
decision was made fixing the extent of the parental support
beyond the 2013-2014 community college tuition costs.
The language used in paragraphs four and five of the order
set procedures, laying the preliminary groundwork necessary to
review allocation of future college costs. However, contrary to
Caitlyn's assertion, which was erroneously adopted in the
October 30, 2014 order, the issue was never finally adjudicated.
For example, paragraph four expressed a need for additional
review, reciting Caitlyn's obligations undertaken "before
determining the [p]laintiff and [d]efendant's contribution" for
19 A-1832-14T1
subsequent school years. In addition, paragraph nine mentioned
future academic years and imposed an economic mediation
prerequisite, which further demonstrates said issues were open.
Moreover, during the October 11, 2013 hearing, the judge
remarked he had not reviewed financial information and ordered
payment shared because the amount was "de minimis." During the
December 8, 2014 hearing, the judge clarified there were no
prior discussions addressed to payment for the university or
another college; the issues were limited to community college.2
We conclude the October 11, 2013 order resolved
intervention and dealt with the immediate community college
tuition. The order settled only the interim issue and did not
resolve all college contribution requests or finalize all rights
and responsibilities of the parties by finally adjudicating the
merits of all issues raised in the action. See Adams v. Adams,
53 N.J. Super. 424, 429 (App. Div.), certif. denied, 30 N.J. 151
(1959).
Once the proceeding concluded on December 8, 2014, with the
denial of reconsideration of the October 11, 2013 order and
rejection of reconsideration of the October 31, 2014 order, the
2
We recognize remarks by the initial judge in entering the
order suggest the October 11, 2013 order's requirements for
modest payment amount appeared directed to deescalate this
family's growing alienation and sought to prompt healing of
their emotional turmoil.
20 A-1832-14T1
obligation for college contributions became final for purposes
of appeal. Accordingly, plaintiff's appeal properly sought
review of all orders leading to the final determination. See
Sutter v. Horizon Blue Cross Blue Shield of N.J., 406 N.J.
Super. 86, 106 (App. Div. 2009) ("'An appeal from a final
judgment raises the validity of all interlocutory orders'
previously entered in the trial court." (quoting In re Carton,
48 N.J. 9, 15 (1966))).
III.
For the first time, plaintiff argues the challenged orders
must be vacated because the Family Part has interfered with her
constitutional right to raise her daughter.
"[I]t is a well-settled principle that our
appellate courts will decline to consider
questions or issues not properly presented
to the trial court when an opportunity for
such a presentation is available unless the
questions so raised on appeal go to the
jurisdiction of the trial court or concern
matters of great public interest."
[Zaman v. Felton, 219 N.J. 199, 226-27
(2014) (quoting State v. Robinson, 200 N.J.
1, 20 (2009))].
See also Pressler & Verniero, supra, cmt. 3 on R. 2:6-2.
Because we conclude clarification of the law is necessary, we
have elected to address the merits of this argument.
Plaintiff's constitutional challenge maintains the court
may not interfere with a joint parental decision to set
21 A-1832-14T1
discipline and achievement requirements for Caitlyn. Caitlyn
argues no constitutional violation arises. She urges the court
properly enforced her right to support and her right to be
educated, and suggests the controversy is only about money.
These arguments speak to "the intersection between parents'
fundamental liberty interest in the care, custody, and control
of their children, and the state's interest in the protection of
those children." Fawzy v. Fawzy, 199 N.J. 456, 472-73 (2009).
A.
Unquestionably, "[t]he right to rear one's children is so
deeply embedded in our history and culture that it has been
identified as a fundamental liberty interest protected by the
Due Process Clause of the Fourteenth Amendment to the United
States Constitution." Id. at 473 (quoting Moriarty v. Bradt,
177 N.J. 84, 101 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct.
1408, 158 L. Ed. 2d 78 (2004)). "The Federal and State
Constitutions protect the inviolability of the family unit." In
re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 382
(App. Div. 1998) (citing Stanley v. Illinois, 405 U.S. 645, 651,
92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972),
vacated on other grounds, 163 N.J. 158 (2000). Therefore,
"[p]arents have a constitutionally protected, fundamental
liberty interest in raising their biological children." Id. at
22 A-1832-14T1
382 (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct.
1388, 1394, 71 L. Ed. 2d 599, 606 (1982)). See also Wisconsin
v. Yoder, 406 U.S. 205, 232-33, 92 S. Ct. 1526, 1541-42, 32 L.
Ed. 2d 15, 35 (1972) (explaining the "primary role" of parents
in raising their children is "an enduring American tradition"
and establishing the historic recognition of that right as
fundamental); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.
Ct. 438, 442, 88 L. Ed. 645, 652 (1944) (identifying privacy
interest attached to child rearing, labeled the "private realm
of family life which the state cannot enter"); Meyer v.
Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626, 67 L. Ed. 1042,
1045 (1923) (characterizing parental right to raise children
"as essential to the orderly pursuit of happiness by free men").
As our Supreme Court has stated:
Deference to parental autonomy means that
the State does not second-guess parental
decision making or interfere with the shared
opinion of parents regarding how a child
should be raised. Nor does it impose its
own notion of a child's best interests on a
family. Rather, the State permits to stand
unchallenged parental judgments that it
might not have made or that could be
characterized as unwise. That is because
parental autonomy includes the "freedom to
decide wrongly."
[Fawzy, supra, 199 N.J. at 473-74 (quoting
Janet Maleson Spencer & Joseph P. Zammit,
Mediation-Arbitration: A Proposal for
Private Resolution of Disputes Between
23 A-1832-14T1
Divorced or Separated Parents, 1976 Duke
L.J. 911, 913 (1976)).]
See also Sacharow v. Sacharow, 177 N.J. 62, 79 (2003) (holding
the Due Process Clause of the Fourteenth Amendment of the United
States Constitution "encompasses [the] 'fundamental right of
parents to make decisions concerning the care, custody, and
control of their own children.'" (quoting Troxel v. Granville,
530 U.S. 57, 67, 120 S. Ct. 2054, 2061, 147 L. Ed. 2d 49, 60
(2000))).
Legislation has been enacted to address and protect the
parent-child relationship. Specifically, N.J.S.A. 9:17-39
states a "'parent and child' relationship means the legal
relationship between a child and the child's . . . parents . . .
to which the law confers or imposes rights, privileges, duties,
and obligations." These rights, privileges, duties, and
obligations extend to both parents "equally . . . regardless of
marital status." N.J.S.A. 9:17-40.
B.
One duty imposed by law requires parents provide financial
support for their children. "The parental obligation to support
children until they are emancipated is fundamental to a sound
society." Kiken v. Kiken, 149 N.J. 441, 446 (1997). See
N.J.S.A. 9:17-53(c) (imposing an obligation to provide child
support to those against whom parentage is established).
24 A-1832-14T1
"In an intact family, the law assumes the parents will
provide for the children as well as they can." Kiken, supra,
149 N.J. at 447. Payment of "[c]hild support after divorce is
necessary to ensure that a child's basic needs are provided by
his parents, who might otherwise neglect their responsibilities
to maintain the child." Pascale v. Pascale, 140 N.J. 583, 590
(1995). See N.J.S.A. 2A:34-23(a) (authorizing courts to
establish or modify child support in pending matrimonial
actions).
The Court has repeatedly emphasized "[c]hildren of divorce
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, supra, 140 N.J. at
592 (citations omitted). To that end, various principles have
evolved.
First, "[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." 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)); see also
Cumberland Cnty. Bd. of Soc. Servs. v.
W.J.P., 333 N.J. Super. 362, 365 (App. Div.
2000) (noting that "[a]t common law, parents
had an absolute duty to support their
children"). The obligation to provide child
support "is engrained into our common law,
25 A-1832-14T1
statutory, and rule-based jurisprudence."
Burns, supra, 367 N.J. Super. at 39.
Second, "it is settled that the best
interests of the child [are] the greatest
and overriding consideration in any family
court matter." Monmouth Cnty. Div. of Soc.
Servs. v. G.D.M., 308 N.J. Super. 83, 88
(Ch. Div. 1997) (citing Wilke v. Culp, 196
N.J. Super. 487, 489 (App. Div. 1984)).
Accordingly, enforcing the parental duty to
support children is "an inherent part of the
'best interests of the child' rubric which
underlies our family courts." Ibid.
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[.]" Martinetti v.
Hickman, 261 N.J. Super. 531, 546 (App. Div.
1992). . . . "[C]hildren are entitled to be
supported at least according to the standard
of living to which they had grown accustomed
prior to the separation of their parents,"
and the "talisman of concern is always the
welfare of the child." Guglielmo v.
Guglielmo, 253 N.J. Super. 531, 546 (App.
Div. 1992).
Third, it 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. Pascale, [supra], 140
N.J. at 591; Patetta v. Patetta, 358 N.J.
Super. 90, 94 (App. Div. 2003); L.V. v.
R.S., 347 N.J. Super. 33, 41 (App. Div.
2001); Blum v. Ader, 279 N.J. Super. 1, 4
(App. Div. 1994).
[Colca v. Anson, 413 N.J. Super. 405, 414-15
(App. Div. 2010).]
The Legislature granted "equitable powers" to the Family
Part, which allows the court to enter, revise or alter support
26 A-1832-14T1
orders "from time to time as circumstances may require."
N.J.S.A. 2A:34-23).
Although parental disagreement is most often heightened in
divorce matters, the event of divorce is not the basis of the
court's authority. Rather, the State's parens patriae
responsibility to protect the rights of children is the source
of its authority. Importantly, a child's right to 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).
However, the court's authority to impose support
obligations is circumscribed: it terminates with a child's
emancipation. Pascale, supra, 140 N.J. at 591; Martinetti,
supra, 261 N.J. Super. at 512. "Where there is no longer a duty
of support by virtue of a judicial declaration of emancipation,
no child support can become due." Mahoney v. Pennell, 285 N.J.
Super. 638, 643 (App. Div. 1995).
A determination of emancipation is a legal issue, 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
27 A-1832-14T1
. . . ." Newburgh, supra, 88 N.J. at 543. When 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 v. Lee, 304 N.J.
Super. 301, 308 (App. Div. 1997).
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
obtains an independent status of his or her own.'" Filippone,
supra, 304 N.J. Super. at 308 (quoting Bishop v. Bishop, 287
N.J. Super. 593, 598 (Ch. Div. 1995)). 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. at 18 (citing Newburgh, supra, 88 N.J. at
545).
A parent establishes "prima facie, but not conclusive,
proof of emancipation" when a child reaches the age of majority,
now eighteen. Id. at 17. See also N.J.S.A. 9:17B-3. Once the
presumption arises, the burden of proof to rebut the statutory
28 A-1832-14T1
presumption of emancipation shifts to the party or child seeking
to continue the support obligation. Filippone, supra, 304 N.J.
Super. at 308.
"In certain situations, parents still have an economic duty
to support children after their eighteenth birthday . . . ."
Llewelyn v. Shewchuk, 440 N.J. Super. 207, 215 (App. Div. 2015)
(quoting N.J. Div. of Youth & Family Services v. W.F., 434 N.J.
Super. 288, 296 (App. Div.) (quoting Newburgh, supra, 88 N.J. at
543), certif. denied, 218 N.J. 275 (2014)). "[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 v. Patetta, 358
N.J. Super. 90, 94 (App. Div. 2003). See also Newburgh, supra,
88 N.J. at 543; Khalaf v. Khalaf, 58 N.J. 63, 71-72 (1971).
"[I]n appropriate circumstances, the privilege of parenthood
carries with it the duty to assure a necessary education for
children." Newburgh, supra, 88 N.J. at 543. In this regard,
college costs are recognized as a form of support for
unemancipated children. See Gac, supra, 186 N.J. at 542 ("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."); Kiken, supra, 149 N.J. at 453 ("N.J.S.A. 2A:34-
29 A-1832-14T1
23(a) authorizes courts to enter reasonable and equitable
support orders, including orders for the education of
children.").
Prior to addressing whether parental support is required
for a child who reaches majority, the pivotal question is
whether the child remains unemancipated. If so, the next
consideration is whether the child has an aptitude for college.
"Newburgh does not require . . . support and concomitant
deferred emancipation for a child unable to perform adequately
in his [or her] academic program." Filippone, supra, 304 N.J.
Super. at 311-12. If each of these questions is affirmatively
answered, then parental ability to afford the significant cost
of college must be examined; it is not presumed.
Some parents cannot pay, some can pay in
part, and still others can pay the entire
cost of higher education for their children.
In general, financially capable parents
should contribute to the higher education of
children who are qualified students. 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.]
To aid this determination, the Court in Newburgh provides
specific factors guiding the analysis of whether and to what
extent an obligation to pay for higher education is imposed.
Id. at 545. The Newburgh factors
30 A-1832-14T1
must be carefully applied by the trial court
in light of a wide range of relevant facts
and circumstances. The undertaking cannot
be accomplished except after a presentation
of all the evidence through direct and
cross-examination and until the trial court
has had an opportunity to observe the
demeanor of the witnesses. The issue . . .
implicates "highly significant policy
considerations," and for this reason should
not be decided on less than a full record.
[Bradbury, supra, 233 N.J. Super. at 136-37
(quoting Jackson v. Muhlenburg Hosp., 53
N.J. 138, 142 (1969)).]
"It remains the ultimate responsibility of the judiciary to
address the fact[-]sensitive issue of emancipation when
presented." Pennell, supra, 285 N.J. Super. at 643. As we have
recently advised: "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." Shewchuk, supra, 440 N.J. Super. at 217
(quoting Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div.
2007)). So too, the examination of parental obligations to
provide college contributions for unemancipated children
requires a hearing. Bradbury, supra, 233 N.J. Super. at 136-37.
C.
Applying these principles to the facts at hand, we reject
plaintiff's challenge attacking the order allowing Caitlyn to
31 A-1832-14T1
intervene. We conclude the judge correctly determined Caitlyn
had standing to do so. Llewelyn, supra, 440 N.J. Super. at 214;
Bradbury, supra, 233 N.J. Super. at 136. See also Pressler &
Verniero, supra, cmt. 1 on R. 4:33-1 (requiring a party moving
to intervene must "show an interest in the subject matter of the
litigation, an inability to protect that interest without
intervention, lack of adequate representation of that interest,
and timeliness of the application"). Caitlyn has an interest in
advancing the position she is unemancipated and in need of her
parents' support.
However, plaintiff's challenge to the conclusion Caitlyn
was unemancipated must be considered. Here, the October 11,
2013 order and hearing record are void of factual findings
supporting such a legal conclusion. Following our review, we
are unable to determine how or why the judge concluded to vacate
the prior order of emancipation.
Rule 1:7-4(a) requires a judge, "by an opinion or
memorandum decision, either written or oral, find the facts and
state [all] conclusions of law . . . on every motion decided by
a written order that is appealable as of right . . . ." Fodero
v. Fodero, 355 N.J. Super. 168, 170 (App. Div. 2002). We
emphasize a judge's failure to perform the fact-finding duty
"constitutes a disservice to the litigants, the attorneys and
32 A-1832-14T1
the appellate court." Curtis v. Finneran, 83 N.J. 563, 569-70
(1980) (quoting Kenwood Assocs. v. Bd. of Adjustment Englewood,
141 N.J. Super. 1, 4 (App. Div. 1976)).
In opposing Caitlyn's motion, plaintiff and defendant
asserted Caitlyn, by her own actions and decisions, was
emancipated. The certifications accompanying the motion papers
include quite divergent statements on this single issue. Not
only is there a material dispute about why Caitlyn left
plaintiff's home and did not seek residence with defendant, but
also at issue is whether Caitlyn diligently pursued her
secondary school education, whether she was a full-time student,
and whether Caitlyn affirmatively rejected efforts undertaken to
exercise reasonable parental influence to require she act
responsibly.
Plaintiff and defendant emphatically rejected the narrative
they "secretly" sought emancipation to avoid financial
responsibility. Rather, plaintiff and defendant maintain
Caitlyn frivolously squandered their emotional and financial
efforts because she desired to do what she wanted, without
parental oversight. They argue Caitlyn rejected their authority
to strike out on her own, sealing her emancipated status.
On the other hand, Caitlyn asserts she "made some mistakes"
but was dutiful and reasonably compliant. However, her parents
33 A-1832-14T1
continued to impose "impossible" requisites, in a joint effort
to thwart her efforts by foreclosing financial assistance.
It appears the initial motion judge recognized plaintiff
and defendant's prior provision of educational support to allow
Caitlyn's attendance at community and Disney college. He may
have assumed Caitlyn remained dependent and, therefore, was
unemancipated. The judge's comments also suggest a desire to
save the parties time and money by avoiding a plenary hearing on
the subject, perhaps believing payment of the relatively small
sum in controversy might mitigate fractures caused in the family
and reunite the parties.
Despite these very well intentioned purposes, the threshold
legal question of emancipation, which must precede any Newburgh
analysis, was not examined. Plaintiff and defendant advanced
facts showing Caitlyn, who was well over the age of eighteen,
rejected parental guidance and advice, because they were
accompanied by strings related to discipline and performance.
Caitlyn does not deny she committed the complained of conduct or
that her actions triggered parental demands for reform. Rather,
she dismisses her behavior as "things that teenagers typically
do," tempered by an admission she made some mistakes.
Whether Caitlyn's actions were irresponsible, as plaintiff
and defendant suggest, or youthful, as Caitlyn insists, begs the
34 A-1832-14T1
question. What is required is an examination of events that
triggered Caitlyn's departure from her mother's home and the
resultant March 30, 2013 order of emancipation. The fact that
Caitlyn is not living with either parent is significant. How
that event occurred bears heavily on whether Caitlyn exercised
"an independent status of . . . her own" and became emancipated.
Filippone, supra, 304 N.J. Super. at 308.
Caitlyn's subsequent decisions and interactions with her
parents also bears on this issue. The dependent parent-child
relationship indicative of unemancipation is not merely shown by
a child's claimed need for financial support. Our jurisprudence
unmistakably mandates there must be examination of the parent-
child relationship itself. Shewchuk, supra, 440 N.J. Super. at
216. In fact, a better description is the relationship is one
of interdependence: the child's right to support and the
parents' obligation to provide payment are inextricably linked
to the child's acceptance and the parents' measured exercise of
guidance and influence. Conversely, a finding of emancipation
is a recognition of a child's independence from a parental
influence.
Despite the detail of events and the expressed strength of
conviction, the positions of the parties' in their pleadings are
at odds, and the legal conclusion Caitlyn is unemancipated
35 A-1832-14T1
cannot be upheld. Such "material factual disputes presented by
the parties' pleadings bear directly on the legal conclusions
required to be made and these disputes can only be resolved
through a plenary hearing." Spangenberg, supra, 442 N.J. Super.
at 540-41. See Hand, supra, 391 N.J. Super. at 105 (stating a
plenary hearing is necessary when the parties' submissions show
a genuine and substantial factual dispute). The parties are
entitled to present their proofs and the judge must sift through
the evidence and state the supported factual findings.
Importantly, "[t]he credibility of the parties' contentions may
wither, or may be fortified, by exposure to cross-examination
and through clarifying questions posed by the court[]" in a
plenary hearing. Barblock v. Barblock, 383 N.J. Super. 114, 122
(App. Div.), cert. denied, 187 N.J. 81 (2006). See also Segal
v. Lynch, 211 N.J. 230, 264-65 (2012) (holding a "genuine,
material and legitimate factual dispute" requires resolution
following a plenary hearing).
If her parents' prove their claims, Caitlyn's choices have
consequences: a child is free to control his or her life;
however, this course relieves her parents of the obligation to
finance such self-determined decisions. See Black v. Black, 436
N.J. Super. 130, 146 (Ch. Div. 2013) ("If an adult 'child'
refuses to have a relationship with a parent without a clear
36 A-1832-14T1
showing of exceptional circumstances, and . . . refuses to
participate in trying to heal the relationship, . . . the
child's message rings loud and clear . . . the parent/child
relationship no longer has any value."). If the evidence
sustains Caitlyn's version of events that her parents "threw"
her out despite her rigorous compliance with their "impossible"
demands, the court must protect the child's right to financial
support.
We also correct what appears to be a misinterpretation of
the law. We focus on the declaration Caitlyn was "un-
emancipated [sic] solely for the purpose of a potential
contribution from [her parents] as it relates to college costs."
A child's decision to seriously pursue a college education
alone does not create the required dependency allowing him or
her to be unemancipated. In Filippone, this court concluded the
parties' son, who left home at age fourteen, was not emancipated
until he reached the age of majority and, thereafter,
unsuccessfully completed college classes. Filippone, supra, 304
N.J. Super. at 312. In Llewelyn, we affirmed the Family Part's
finding the plaintiff-child failed to rebut the presumption of
emancipation, when she decided to leave her mother's home,
despite her later pursuit of education as a full-time college
student. Llewelyn, supra, 440 N.J. Super. at 218-19.
37 A-1832-14T1
Thus, facts matter, and the judge must fully analyze all
circumstances that separated Caitlyn from her parents and their
homes. It is insufficient to merely review Caitlyn's decisions
and her parents' financial status at the time Caitlyn filed her
motion. An independent child choosing her own path is not
entitled to support because support is due only to a child who
is not emancipated. Pennell, supra, 285 N.J. Super. at 643.
For the reasons stated, we affirm the order allowing
Caitlyn to intervene. We reverse, as factually unsupported, the
provisions in the October 11, 2013 order concluding Caitlyn is
unemancipated and plaintiff and defendant must provide college
contributions. On these issues, the October 11, 2013 order is
vacated, and the matter remanded for further proceedings,
including a plenary hearing. See Tretola v. Tretola, 389 N.J.
Super. 15, 20-21 (App. Div. 2006) (reversing a court's denial of
the plaintiff-father's request to emancipate his son because the
court "failed to recognize there were material facts in dispute
and evidence beyond the motion papers necessary for resolution
of the matter" following an evidentiary hearing, when the child
is "both employed and attending college full time.").
On October 31, 2014, the provisions of the October 11, 2013
order were mistakenly viewed as requiring each parent contribute
to any and all college costs. However, the record shows no
38 A-1832-14T1
analysis of Newburgh's factors was undertaken, and the prior
order was based on less than a complete record. Moreover, as we
point out, no findings supported the issue of emancipation.
Consequently, the October 31, 2014 order, which purported to
enforce the October 11, 2013 order, is also vacated. We add
these additional comments to aid review on remand.
Once the issue of emancipation is decided, an obligation to
pay college costs for an academically motivated unemancipated
child requires a two-fold analysis. First, it demands a
determination of whether equitable or other considerations
militate against parents paying college costs. See Gac, supra,
186 N.J. at 547 ("[A] parent or child seeking contribution
should initiate the application to the court before the expenses
are incurred. The failure to do so will weigh heavily against
the grant of a future application."); Moss v. Nedas, 289 N.J.
Super. 352, 356 (App. Div. 1996) (noting parent cannot be viewed
as a "wallet" and deprived of involvement of college decision
making process); Black, supra, 436 N.J. Super. at 146 ("[A]
student's rejection of the opportunity to attempt reunification
with a parent may be factually so compelling as to equitably
overshadow and eclipse the other Newburgh factors, and tilt the
scales of justice in favor of suspending or completely
39 A-1832-14T1
terminating the parent's obligation to financially contribute
towards the child's college education.").
Second, the court must scrutinize whether the parents are
financially capable of contributing. Weitzman v. Weitzman, 228
N.J. Super. 346, 357 (App. Div. 1988). This requires broader
consideration than parental gross incomes. Other financial
obligations, expenses and debts must be weighed. Here, for
example, plaintiff and defendant each are responsible to support
other minor children, which reduces income available to pay
college costs. Indeed, the college student's contribution also
should be factored. This includes assets, income, scholarships,
loans and other financial aid.3
The October 31, 2014 order includes no analysis supporting
the allocation of the university tuition, fees and books, 40% to
plaintiff and 60% to defendant. Therefore, even if Caitlyn is
found to be unemancipated, the order cannot stand. See Rule
1:7-4(a).
We reject Caitlyn's claim plaintiff's motion for
reconsideration was untimely and also reverse the December 8,
2014 order. Plaintiff challenged the October 31, 2014 order's
interpretation of provisions ordered on October 11, 2013.
3
We note, the December 6, 2014 order clarified Caitlyn's
responsibility to apply for scholarships, and she acquired
financial aid.
40 A-1832-14T1
Unfortunately, the reviewing judge erred when he limited his
authority to consider only the terms of the October 11, 2013
order.
IV.
We turn to Caitlyn's cross-appeal, which seeks reversal of
the provisions denying her application for attorney's fees on
October 31, 2014 and December 8, 2014. New Jersey does not
subscribe to a system that "loser pays." Statutory provisions,
N.J.S.A. 2A:34-23, court rules, R. 5:3-5(c), R. 4:42-9(a), and
interpretative case law, see, e.g., Mani v. Mani, 183 N.J. 70,
94-95 (2005), clearly outline necessary considerations when
imposing a counsel fee award. The reviewing judges made
findings, albeit limited ones, regarding the plaintiff and
defendant's good faith in advancing the arguments presented,
which encompasses one consideration. Reese, supra, 430 N.J.
Super. at 586. Nevertheless, since we have vacated the orders,
attorney fee requests may abide the ordered remand proceedings.
V.
In summary, the starting point of the remand proceedings
determines whether Caitlyn was emancipated when she left her
parents' homes. Only when Caitlyn proves she was unemancipated
must a Newburgh analysis commence. See Newburgh, supra, 88 N.J.
at 542 ("Resolution of [the right to continued educational
41 A-1832-14T1
support] centers on a parent's duty to support a child until the
child is emancipated. Consequently, [the child], if
unemancipated, may be entitled" to continued support). This
includes all facts and circumstances surrounding the requested
college contributions, including the scope and cause of ongoing
estrangement and non-communication. Cf. Philipp v. Stahl, 344
N.J. Super. 262, 272-73 (App. Div. 2001) (holding the absence of
a relationship between parent and child was "one of the many
factors that go into" the determination of post-secondary
support), rev'd on other grounds, 172 N.J. 293 (2002). See also
Gac, supra, 186 N.J. at 546 (noting a parent or child seeking
contribution for college expenses must inform and communicate
with the parties concerning "the many issues inherent in
selecting a college"); Nedas, supra, 289 N.J. Super. at 356.
Upon an affirmative showing college contribution is warranted,
the inquiry turns to the amount of the financial obligation
itself. This encompasses parental ability to pay, Weitzman,
supra, 228 N.J. Super. at 357 (stating among the Newburgh
factors, parents' ability to pay is clearly the most
significant), the child's contributions, and reasonableness of
choice to enroll in a chosen school, despite a comparable
available education at other more economical universities, see
42 A-1832-14T1
Finger v. Zenn, 335 N.J. Super. 438, 444-45 (App. Div. 2000),
certif. denied, 167 N.J. 633 (2001).
Our final comments are observational. A plenary hearing on
emancipation, mandated by law, has one winner and the chasm
between parents and child surely will widen whatever the
outcome. The initial motion judge was very sensitive to this
possibility and urged the parties to seek an alternate course to
reach resolution. We applaud that effort imbued with common
sense. We also recognize demands placed on our Family Part
judges do not allow the luxury of uninterrupted consideration of
one matter at a time. Therefore, in addition to being
emotionally draining and time consuming, litigation is
expensive. In light of these realities, before undertaking the
course outlined by law, we encourage the parties give serious
consideration to whether their positions, and hopefully their
relationship, could be reconciled by a different course of
dispute resolution, which unlike litigation, might more closely
address the dynamic and complex interactions between parents and
child.
Affirmed in part, reversed and remanded in part for
additional proceedings as discussed in this opinion.
43 A-1832-14T1