The Parties' Own Knowing Agreement, Absent Fraud, Prevails In Emancipation

In Longer v. Nace, Robert Nace sought to emancipate the parties’ daughter, as the parties’ separation agreement entered at the time of their divorce, defined emancipation as attaining the age of 18 years or completing college. Plaintiff, Nina Longer, opposed the motion based on N.J.S.A. 2A:17-56.67 providing for child support until the age of 23 years. The daughter was enrolled full-time in a master’s degree program and living at home at the time. Plaintiff was not seeking contribution to the daughter’s tuition, only that child support continue. Under Newburgh v. Arrigo, 88 N.J. 529 (1982) the court denied the motion for emancipation. Robert Nace and Nina Longer divorced in 2002 with a property settlement agreement after eleven years of marriage. The children were ten and seven at the time of the divorce. The parties agreed to share equally the cost of all post-secondary education for the children. The parties further agreed that child support would terminate upon each child’s attaining the age of 18 years or completing college, the last of which occurs. The parties shared the costs of college for the children and the Defendant moved to emancipate the daughter upon her completing college, in accordance with the property settlement agreement. On appeal, the appellate division determined that the court below failed to properly apply Newburgh, which is to be applied only when tuition for the child is being sought and that the court should have enforced the property settlement agreement that the parties knowingly and voluntarily entered into which, on its face did not have any appearance of impropriety and therefore reversed the decision of the trial court with regard to the motion. If you are interested in emancipating a minor or preventing a minor from being emancipated early, visit DarlingFirm.com or call 973-584-6200 now to schedule a consultation. This blog is for informational purposes and not intended to replace the advice of counsel.

Emancipation And Alimony Termination Application Results in Child Support Modification

In Jackson v. Jackson, the Plaintiff appealed from a 2013 post-judgment matrimonial Order regarding the emancipation of the parties' daughter and the termination of alimony payments to the Defendant. The Family Court judge denied the emancipation request after finding that the Defendant's documentation showed the child was enrolled as a full-time college student and recalculated the child support obligation. N.J.S.A. 9:17B-3; Newburgh v. Arrigo, 88 N.J. 529, 543, 443 A.2d 1031 (1982); Gac v. Gac, 186 N.J. 535, 543, 897 A.2d 1018 (2006); Moehring v. Maute, 268 N.J. Super. 447, 480-81, 633 A.2d 1055 (Ch. Div. 1993). The judge also denied the Plaintiff's request to terminate alimony. On appeal, the Plaintiff challenged the income that was used to compute his child support obligation. Upon review, the Appellate Division discovered that the documentation that was relied upon by the Family Court judge to fix the Plaintiff's child support obligations revealed a gross weekly income of $1,219, which is the same amount that the Plaintiff reported on his case information statement submitted to the court. The Plaintiff's 2012 W-2 showed a gross annual income of $63,280 which is $1,217 a week. Therefore, the Appellate Court did not find any error on the N.J. Child Support Guidelines worksheet that was used to calculate the support obligation. The calculation did neglect to include the alimony paid by Plaintiff of $125 a week. According to the Appellate Court, the calculation should have deducted the alimony payment from the Plaintiff's income and included it within the Defendant's income. The child support calculation also failed to include the allocation of payments made for the child's health insurance. Therefore, the child support obligation of $183 a week was wrong and was vacated and recalculated. The Appellate Court affirmed the Family Court's Order using the Plaintiff's weekly income of $1,217 and reversed the Order that directed that the child support obligation was $183 a week and remanded the case back to the Family Court to recalculate the support accounting for alimony and the cost of health insurance. If you anticipate that it may be beneficial to you to seek a post-judgment modification of your child support obligation it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, child support, emancipation, divorce, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Child Support And College Expenses Calculated Based on Imputation of Income To Mother

In Haymaker v. Haymaker, the Plaintiff appealed from a post-judgment Court Order that required her to contribute to her daughter's college expenses and set a child support obligation and amount of arrears. The Appellate Court reversed and remanded the decision of the Family Court. The Plaintiff and Defendant were married and two (2) children were born to them. The parties were divorced in 1996. The parties' second child, C.H. was attending Syracuse University since August 2012. From the parties' divorce until 2011, C.H. lived primarily with the Plaintiff. In 2011, the Defendant submitted an application to the court for a change in custody which was granted and an order issued allowing C.H. to live in the primary custody of the Defendant. The Motion was initiated based upon a "four-year financial plan" which was established between the Defendant and C.H. to free the Defendant from his child support obligation and to permit his contribution to C.H.'s college expenses. The change in custody negatively impacted C.H.'s relationship with the Plaintiff. In 2012, the Defendant filed another Motion which sought a Court Order to determine his proportionate share of his daughter's college contribution for the support needs that were not covered by her attendance at college. Subsequent to this, the court issued an Order directing that the Plaintiff pay $125 per week in child support starting in July of 2012. The Plaintiff then filed a Motion for reconsideration which was denied. The Plaintiff appealed the decision and a subsequent decision affixing her child support that was heard during the pendency of the appeal. According to the Appellate Court, the Family Court has "substantial discretion" in deciding issues of contribution to college expenses. Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012); Pascale v. Pascale, 140 N.J. 583, 594-95 (1995). An award will not be disturbed unless is it manifestly unreasonable or arbitrary. In Newburgh v. Arrigo, 88 N.J. 529 (1982), the New Jersey Supreme Court provided a framework for evaluating parental contribution toward a child's post-secondary education. A Family Court judge has an obligation under Newburgh and N.J.S.A. 2A:34-23(a) to consider all of the factors contained in that decision when making a contribution award. Further, it is well established that a child over the age of 18 who is enrolled in a full-time educational program requires continued support. Gac v. Gac, 186 N.J. 535, 542 (2006). In this case, the Appellate Court did not take issue with the Family Court judge's analysis of the Newburgh factors in reaching his decision, rather, the court disagreed with the judge's factual findings relative to his consideration of a student loan and other unreimbursed costs in the calculus of his determination. The court also found that the Family judge's imputation of income to the Plaintiff was incorrect. Therefore, the case was reversed and remanded back to the Family Court for a re-calculation of these figures. If you believe that a post-judgment modification to your child support or college expense contribution obligation may be beneficial to you it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, child support, divorce, child custody, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice if an attorney.

Post-Judgment Motion For College Tuition Is Denied

White v. White, is a 2015 post-judgment modification involving a Plaintiff who petitioned the court to compel her ex-husband, the Defendant, to reimburse her and their son for loans that the Plaintiff and the child used to pay for his college education. The Plaintiff appealed the decision of the Family Court which denied her initial Motion, filed in 2012, to compel the Defendant to reimburse her and her son for the aforementioned loans. After being married for six (6) years and having two (2) sons the parties agreed to divorce. The divorce was granted pursuant to a judgment of divorce that granted custody of the children to the Plaintiff, set forth the Defendant's child support obligation, and incorporated the parties' agreement concerning the equitable distribution of their property. The record reflected that the Defendant did not have contact with either of his children from 1998 through the time the initial Motion was filed in 2012. In 2008, the parties' youngest son entered college and graduated in 2011. In 2012, nine (9) months after the parties' child graduated college the Plaintiff filed a Motion seeking retroactive child support effective May 2009 through December 2011 and an Order directing the Defendant to pay for the non-emancipated child's college education as well as a loan that the Plaintiff has used for that purpose. The court denied the relief requested. The Appellate Court found that it was required by Gac v. Gac, 186 N.J. 535, 546 (2006) to consider whether the Defendant had been involved in the college selection process at all. Further, the court noted that the Defendant was disabled and wondered whether or not it was fair to retroactively place the burden on him to inquire as to whether or not his children were entitled to any veteran benefits - as he was a veteran - to assist in the payment of college expenses. Relying on Newburgh v. Arrigo, 88 N.J. 529, 535 (1982), Gac v. Gac, N.J.S.A. 2A:34-23(a) the Appellate Division ruled that waiting until the child graduated from college was fatal to the Plaintiff's application for retroactive contributions to the loan that she took out. Courts "should balance the statutory criteria of N.J.S.A. 2A:34-23(a) and the Newburgh factors, as well as any other relevant circumstances, to reach a fair and just decision whether, and if so, in what amount, a parent or parents must contribute to a child's educational expenses." Gac v. Gac, surpa, 186 N.J. at 543. Being that it could not be determined exactly when the Defendant first learned that his son was attending college and why the Defendant was estranged from his son (and therefore not involved in the college selection process) the court was not willing to reverse the decision of the lower court. The issue was whether a non-custodial parent can be held liable to a child for the amount of educational benefits that would have been available from a non-parental source had the parent timely notified the child or child's custodial parent. The Plaintiff cited to no authority to support the imposition of such liability and therefore the court was not prepared to impose such. If you anticipate that you may want to petition the court for a post-judgment modification of your divorce judgment it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification , equitable distribution, divorce, alimony, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Emancipation and Child Support Adjusted To Military Enlistment Date

Schottel v. Kutyba, is a New Jersey case coming out of Bergen County, involving the emancipation and termination of child support of the daughter of a divorce couple. Specifically, the Plaintiff appealed the case because the Family Court judge issued a Court Order that was effective on the date it was entered instead of on the date the Plaintiff's daughter joined the military, six (6) months prior which affected when her child support obligation was terminated with regard to the child. The Appellate Court found that because the Plaintiff's prima facie showing that her eighteen (18) year old daughter had in fact enlisted in the United States armed forces in 2013, there was a presumption of emancipation at that time which was not rebutted and therefore the Family Court was mistaken in failing to make the Court Order retroactive to the date the daughter enlisted. The laws in New Jersey regarding emancipation have been well established. 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 he or her own.'" Filippone v. Lee, 304 N.J. Super. 301, 308 (App Div. 1997); Bishop v. Bishop, 287 N.J. Super. 539, 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). Therefore, a court's decision to grant an emancipation date predating the filing date of an application for emancipation 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). Many children throughout New Jersey continue to be dependent on their parents for a time after attaining the age of eighteen (18), specifically to pursue higher education. Proof of majority satisfies a non-custodial parent's prima facie showing of emancipation which in turn shifts the burden to rebut the presumption of emancipation to the custodial parent. The Plaintiff in this case, made notation in her Motion papers that the courts have long recognized that emancipation can occur upon a child's induction into military service. Slep v. Slep, 43 N.J. Super. 538, 543 (Ch. Div. 1957). Since the parties' daughter had already attained the age of majority by the time she graduated from high school and then she immediately enlisted in the armed forces, the Plaintiff's proof of those facts constituted proof of her emancipation. Therefore, the decision of the Family Court was reversed and remanded for the issuance of a Court Order reflecting the child's emancipation date as of the date she enlisted in the military and the subsequent re-calculation of the Plaintiff's child support arrears to account for that. Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995). If you have questions regarding the legal standard for emancipation or how a child's emancipation affects a parent's child support obligation it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about emancipation, divorce, alimony, child support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Daughter Emancipated Over Father's Objection

Ort v. Ort, is a case that was originally decided in New Jersey Family Court that involves an 18 year old daughter , Sharon, of divorced parents who filed an application for emancipation, against her father's objection, because she claimed that she desired to legally be her own person and make independent decisions regarding her life. According to N.J.S.A. 9:17B-1, the New Jersey Legislature recognizes an 18 year old person as an adult. Multiple other state statutes reflect this legal recognition - N.J.S.A 2C:58-3; N.J.S.A. 19:31-5; N.J.S.A. 37:1-6; N.J.S.A. 2A:4A-20; N.J.S.A. 5:8-59; N.J.S.A. 43:10-6. Sharon was 18 years old at the time she filed for emancipation and lived with her mother, the Plaintiff, at the time. She entered the current case as a party in interest seeking a legal Court Order of emancipation from both of her natural parents. Sharon wanted to have the ability to make decisions regarding her life, specifically regarding her college education, without her parents input, even though she had a good relationship with her mother (her relationship with her father was strained). She understood that if she was legally emancipated her parents would be under no obligation to financially contribute to her college education. Newburgh v. Arrigo, 88 N.J. 529, 443 A.2d 1031 (1982). Sharon's mother supported her decision to seek emancipation whereas her father did not. Sharon's father opposed her emancipation based upon the argument that she was too young and inexperienced to make decisions on her own and she was not outside the sphere of parental influence. The Family Court held a hearing regarding Sharon's application at which the attorneys for her parents questioned her about the voluntariness and understanding of her request for emancipation. The court found that there was no credible evidence presented by either party or through Sharon's testimony that she was incompetent or too immature to understand the nature of her request. The Appellate Court held that in Gac v. Gac, 186 N.J. 535, 897 A.2d 1018 (2006), the New Jersey Supreme Court acknowledged that there is a statutory mandate by the New Jersey legislature to declare a person reaching the age of 18 to be an adult. Therefore, the Appellate Court held that it stands to reason that if a person who has attained the age of 18 does not seek the compulsory financial support of a parent, then that parent should not have any legal control over the adult child as long as that particular child is competent and can function independently as an adult. The Appellate Court granted Sharon's application for emancipation and wished her well. If you have questions regarding the legal standard for emancipation or would like more information regarding how to petition the court for an emancipation it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about emancipation, divorce, alimony, child support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Post-Judgment Modification of Child Support And College Expenses

In the recent NJ Appellate Division case, Johnson v. Johnson, the Plaintiff, David Johnson, appealed from a Family Court's post-judgment Court Order concerning issues regarding his child support and college expenses obligations. The Appellate Division remanded the case back to the lower court for a reconsideration and for additional findings of fact and law. In this case, the parties obtained a legal divorce in 1994 after five (5) years of marriage. The Plaintiff is 53 years old and the Defendant, Patricia Johnson, is 59 years old. The parties' children, Warren and Nancy, born in 1992 and 1989 respectively, are college aged. The Plaintiff remarried after his divorce and had two (2) additional children with her, one born in 2001 and another in 2005. The Plaintiff lives in South Carolina, where he works at two (2) retailers. The Defendant is an accountant with county government and remains in New Jersey where she has primary residential custody of the parties' children. In 2011, the Plaintiff sought to reduce his child support obligation because he began to make less money. At that time, he was paying $180 a week in child support. Also at that time, he requested information regarding his children's college attendance. Both children were supposedly attending college. The Defendant submitted a cross motion for continued child support and for the Plaintiff to contribute to the children's college expenses. The court reduced the Plaintiff's child support obligation to $139 a week and used the NJ Child Support Guidelines to calculate the amount. The court noted that when the Plaintiff and Defendant divorced the Plaintiff was the breadwinner of the family and then the circumstances changed when the Defendant became employed and earned more than the Plaintiff. In addition, the Family Court directed that the Plaintiff pay 38% of the children's college costs. Following an appeal at that time, the Appellate Court reversed the decision and remanded the case back for reconsideration requiring the court to apply the statutory child support factors found in N.J.S.A. 2A:34-23(a). The Family Court lowered the child support to $100 per week and ordered the Plaintiff to pay 40% of the children's college expenses. In its opinion on these issues, the Family Court's decision recited the statutory factors found in N.J.S.A. 2A:34-23(a) and also the factors to determine a claim for college contribution set forth in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982). The Plaintiff appealed from this decision. In its holding the Appellate Court found that the trial court must make findings of fact and state its conclusions of law, according to Court Rule 1:7-4(a); N.J. Div. Youth & Family Servs v. M.C., 201 N.J. 328, 342-43 (2010). A motion judge must address the standards set forth in our statutes and cases to support a discretionary decision. Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990). According to this standard, the Appellate Court once again remanded this case to the Family Court to make the appropriate findings, as the trial court simply recited the relevant statutory factors without explaining its conclusions of law. Child support cases are among the most emotional and difficult cases in all of family law. If you anticipate that you may want to petition the court for a post-judgment modification of your current child support obligation or to seek any other relief pertaining to your divorce it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about child support, post-judgment modification, parenting time, divorce, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Court Compels Father To Pay College Tuition

In a recent post-judgment matrimonial case, Martin v. Martin, the NJ Appellate Court reversed a Family Court order denying the Defendant's Motion for college tuition contributions for her daughter because the Family Court judge did not conduct the proper analysis. The parties in this case were married in 1993 and subsequently divorced in 2010. The marriage yielded two children - a son and a daughter. The parties incorporated a property settlement agreement (PSA) with their final divorce judgment that specified that it was anticipated that the parties' daughter would matriculate to college in 2011 and that the son would eventually attend college. The agreement stated that any parental contribution toward the children's college expenses would be governed by the factors set forth in Newburgh v. Arrigo, 88 N.J. 529 (1982) and that the Defendant possessed the children's savings bonds for the benefit of the children and these bonds were not to be used toward the children's college expenses. The Defendant did not file a Motion for college contribution until the end of 2012, which was well into the daughter's third college semester. According to the Defendant, the delay was the result of not being able to incur any additional attorney fees and because she was hospitalized for five days during that time. The Family Court denied her Motion for contribution, in part, because of the delay. In the Defendant's appeal, she argued that the Family Court judge erred in not requiring the Plaintiff to contribute to their daughter's college expenses by improperly evaluating the factors set forth by Newburgh. According to the Appellate Division, the Family Court had "substantial discretion" in deciding the issue of contribution to the daughter's college expenses. Jacoby v. Jacoby, 427 N.J. Super 109, 116 (2012). According to this decision: "If consistent with the law, [the] award will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice." In Newburgh, the New Jersey Supreme Court established a framework for evaluating parental contribution toward a child's college expenses and instructed courts to consider the following factors: • Whether the parent, if will living with the child, would have contributed toward the costs of the higher education; • The effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; • The amount of the contribution sought by the child for the cost of higher education; • The ability of the parent to pay that cost; • The relationship of the requested contribution to the kind of school or course of study sought by the child; • The financial resources of both parents; • The commitment to an aptitude of the child for the requested education; • The financial resources of the child, including assets owned individually or held in custodianship or trust; • The ability of the child to earn income during the school year or vacation; • The availability of financial aid in the form of college grants and loans; • The child's relationship to the paying parent; and • the relationship of the education requested to any prior training and the overall long-range goals of the child. According to the Appellate Court, the trial judge had an obligation under Newburgh and N.J.S.A. 2A:34-23(a), to consider all of these factors and in this case the judge did not meet this obligation because he did not consider all of the factors. Therefore, the case was reversed and remanded for a proper evaluation. If you anticipate that you may want to petition the court for a post-judgment modification of a lower court's order or decision with regard to the other party's college expense contribution or any other aspect of your divorce including alimony, child support or custody it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modifications, divorce, alimony, child support, custody and visitation, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.