Child support continues after age 18 if there is a property settlement agreement |
|
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1561-04T21561-04T2
BARBARA M. DOLCE, v VINCENT J. DOLCE, SR.,
Defendant-Respondent.
_ Decided February 7, 2006
Before Judges Lintner, Parrillo and Holston, Jr.
In this post-judgment matrimonial matter, plaintiff, Barbara M.
Dolce, appealed from an order of the Family Part declaring the parties'
son emancipated as of age eighteen and terminating the child support
obligation of defendant, Vincent J. Dolce, Sr.
At the time of their divorce on October 18, 2001, the parties were
parents of a son, Vincent, Jr., who was born on July 17, 1986. Prior
to their divorce, the parties entered into a property settlement
agreement (PSA) on September 18, 2001, that was eventually incorporated
into the final judgment of divorce (FJD). For purposes here relevant,
the parties agreed that plaintiff would be awarded primary residential
custody of their son, and that defendant would pay child support
of $200 per week until the son's emancipation, which would occur
at the earliest of the following events:
A) Reaching the age of twenty-three (23) years or completion of
four (4) academic years of college, whichever occurs first.
B) Marriage of the child, even though such marriage may be void
or avoidable or annulled;
C) Death of the child;
D) Entry of the child into the Armed Forces of the United States,
whether voluntary or involuntary.
Although the parties proceeded without benefit of counsel, they
acknowledged that the PSA was "fair, adequate and satisfactory
to them."
Despite the emancipation provision of the PSA, defendant moved to
declare his son emancipated shortly after Vincent, Jr. turned eighteen
on July 17, 2004. By then, Vincent, Jr. had discontinued his formal
high school education at the age of fifteen, was subsequently home
schooled for a time, but had yet to successfully obtain his GED.
In support of his motion, defendant relied exclusively on the fact
that Vincent, Jr. had attained the age of majority. He did not allege,
much less demonstrate, that his son was economically self-sufficient
or otherwise met any of the emancipation events listed in the PSA,
or that circumstances had substantially changed. The Family Part
judge granted defendant's motion, declaring the son emancipated
as of September 4, 2004, the date the motion was filed. Although
the judge acknowledged that Vincent, Jr. suffered from "education
problems for quite some time," - a fact conceded by both parties
- he nevertheless found the son emancipated essentially "by
operation of law":
There's one difference in this case, and that is he's emancipated
by operation of law. I don't believe that you can contract to compel
him to pay beyond what he's required to do legally. In other words,
this boy is not a student. We know that. He's not a good student,
but that's not the issue. Not being a good student has no bearing
on it. He dropped out of school. He was home-schooled. He didn't
pass the GED. He's been employed. I don't believe that you can compel
the father to pay support beyond his emancipation, and I think he's
emancipated by law. The law says you are emancipated when you enter
the service, marriage, finish high school at the age of 18 and don't
go beyond. He has done that.
The Appellate Division disagreed.
The Appellate Division held: Emancipation - the conclusion of the
fundamental dependent relationship between parent and child - is
not a self-executing principle. It does not occur, as suggested
by the motion judge, automatically, by operation of law, simply
by reason of the dependent child reaching the age of majority, now
eighteen. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). Indeed, "emancipation
need not occur at any particular age . . . ." Ibid.; see also
Limpert v. Limpert, 119 N.J. Super. 438, 440 (App. Div. 1972). In
fact, a rebuttable presumption against emancipation exists prior
to attaining the age of eighteen. Newburgh, supra, 88 N.J. at 543;
see also N.J.S.A. 9:17B-3. Correspondingly, reaching the age of
majority establishes only "prima facie, but not conclusive,
proof of emancipation." Newburgh, supra, 88 N.J. at 543 (citing
Alford v. Somerset County Welfare Bd., 158 N.J. Super. 302, 310
(App. Div. 1978); Limpert, supra, 119 N.J. Super. at 440)).
The issue of "whether a child is emancipated at age eighteen,
with the correlative termination of the right to parental support,"
is fact-sensitive. Ibid. "[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 v. Lee, 304 N.J. Super. 301, 308 (App.
Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch.
Div. 1995)). This 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. Newburgh,
supra, 88 N.J. at 545.
A significant consideration in this regard is the agreement of the
parties to voluntarily extend the parental duty of support beyond
the presumptive age of emancipation. In other words, a parent can
bind himself or herself by consensual agreement, voluntarily and
knowingly negotiated, to support a child past majority, and such
agreement is enforceable if fair and equitable. Of course, a parent
cannot bargain away a child's right to support because the right
to support belongs to the child, not the parent, Martinetti v. Hickman,
261 N.J. Super. 508, 512 (App. Div. 1993), and no agreement between
the parents can deprive a court of its authority to require that
adequate provision be made for dependent children. On the other
hand, however, nothing in the law, and no principle of public policy
prevents a parent from freely undertaking to support a child beyond
the presumptive legal limits of parental responsibility. See Church
v. Hancock, 136 S.E.2d 81, 83 (N.C. 1964); Worthington v. Worthington,
179 S.W.2d 648, 649 (Ark. 1944); Dep't of Revenue ex rel. Hall v.
Hall, 699 So.2d 1036, 1037 (Fla. Dist. Ct. App. 1997). In such an
instance, the parental obligation is not measured by legal duties
otherwise imposed, but rather founded upon contractual and equitable
principles. Church, supra, 136 S.E. 2d at 83.
To be sure, given the inherent equitable powers of the Family Part,
support orders, including those setting emancipation events, "may
be revised and altered by the court from time to time as circumstances
may require," including an order resulting from an agreement.
N.J.S.A. 2A:34-23; see also Lepis v. Lepis, 83 N.J. 139, 146 (1980);
W.S. v. X.Y., 290 N.J. Super. 534, 541 (App. Div. 1996); Dunne v.
Dunne, 209 N.J. Super. 559, 565 (App. Div. 1986). Thus, "[i]f
circumstances have changed in such a way that [the support provision]
would no longer be equitable and fair, the court also remains free
to alter the prior arrangement." Lepis, supra, 83 N.J. at 161
n.12 (citing Khalaf v. Khalaf, 58 N.J. 63, 71-72 (1971) and Rufner
v. Rufner, 131 N.J. Eq. 193, 196 (E. & A. 1942)). The duty of
support is "always subject to review and modification on a
showing of 'changed circumstances.'" Lepis, supra, 83 N.J.
at 146 (quoting Chalmers v. Chalmers, 65 N.J. 186, 192 (1974)).
"[T]he moving party has the burden of establishing the circumstances
that warrant the change." Zazzo v. Zazzo, 245 N.J. Super. 124,
132 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991). In this
regard, while an analysis of "'changed circumstances' [is]
not limited in scope to events that were unforeseeable at the time
of divorce," Lepis, supra, 83 N.J. at 152, at least from an
objective perspective, it is clear that the "'reasonable expectations
of the parties at the time . . . the agreement'" was executed
is a significant consideration. Deegan v. Deegan, 254 N.J. Super.
350, 355 (App. Div. 1992) (quoting Dilger v. Dilger, 242 N.J. Super.
380, 388 (Ch. Div. 1990)); Avery v. Avery, 209 N.J. Super. 155,
161-62 (App. Div. 1986). Indeed, "[i]f the existing support
arrangement has in fact provided for the circumstances alleged as
'changed,' it would not ordinarily be 'equitable and fair,' to grant
modification." Lepis, supra, 83 N.J. at 153 (quoting Smith
v. Smith, 72 N.J. 350, 360 (1977)).
In any event, unlike modification of an alimony award, "[w]hen
the movant is seeking modification of child support, the guiding
principle is the 'best interests of the children.'" Lepis,
supra, 83 N.J. at 157 (quoting Hallberg v. Hallberg, 113 N.J. Super.
205, 209 (App. Div. 1971)); see also Bengis v. Bengis, 227 N.J.
Super. 351 (App. Div. 1987). Moreover, where there has been a voluntary
undertaking to advantage the child beyond that minimally required,
courts must "give due weight to the strong public policy favoring
stability of [consensual] arrangements," Smith, supra, 72 N.J.
at 360, before releasing one of the contracting parties from disadvantageous
terms actually agreed upon. Cf. Konzelman v. Konzelman, 158 N.J.
185, 193 (1999).
Settlement agreements in matrimonial matters, being "essentially
consensual and voluntary in character, . . . [are] entitled to considerable
weight with respect to their validity and enforceability" in
equity, provided they are fair and just. Petersen v. Petersen, 85
N.J. 638, 642 (1981) (citing Carlsen v. Carlsen, 72 N.J. 363, 370-71
(1977); see also Lepis, supra, 83 N.J. at 153; Berkowitz v. Berkowitz,
55 N.J. 564, 569 (1970); Schlemm v. Schlemm, 31 N.J. 557, 581-82
(1960). "'Separation agreements . . . are generally favored
by the courts as a peaceful means of terminating marital strife
and discord so long as they are not against public policy.'"
Konzelman, supra, 158 N.J. at 194 (quoting Gordon v. Gordon, 675
A.2d 540, 544 (Md. 1996)); see also Weishaus v. Weishaus, 180 N.J.
131, 143 (2004). "And while incorporation of a PSA into a divorce
decree does not render it immutable, nor its terms solely governed
by contract law, nevertheless, if found to be fair and just, it
is specifically enforceable in equity." Eaton v. Grau, 368
N.J. Super. 215, 224 (App. Div. 2004) (citations omitted).
Here, defendant has failed to demonstrate any unfairness or inequity
in the PSA. As noted, neither law nor public policy intervenes to
prohibit the voluntary undertaking by a parent to support a child
beyond the presumptive age of emancipation. Moreover, no reason
has been advanced why defendant should be relieved from the provisions
of an agreement freely negotiated and knowingly executed only three
years ago. The terms of defendant's child support obligation are
plain and explicit, and the events of emancipation are set forth
in clear and unambiguous language, leaving no room for interpretation.
They should be enforced as written and agreed to by the parties,
absent a substantial change in circumstances. But none here are
alleged, much less that circumstances have changed in such a way
that the child's continued dependency would no longer be fair or
equitable. On the contrary, it may be strongly inferred that the
parties actually foresaw the very contingency that eventuated in
this case and purposely provided for extended term support in light
of their son's acknowledged "education problem" and consequent
economic need. Under these circumstances, we perceive no inequity
or unfairness in enforcing the plain and clear terms of the parties'
agreement.
Accordingly, that portion of the order of October 22, 2004 declaring
Vincent, Jr. emancipated and terminating defendant's child support
obligation was vacated, and the matter was remanded for entry of
an order consistent with this opinion. |
|
|
Kenneth
Vercammen is the Managing Attorney at Kenneth Vercammen & Associates
in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial
portion of his professional time to the preparation and trial of
litigated matters. He has appears in Courts throughout New Jersey
each week for litigation and contested Probate hearings.
Mr.
Vercammen has published over 125 legal articles in national and
New Jersey publications on elder law, probate and litigation topics.
He is a highly regarded lecturer on litigation issues for the American
Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex
County Bar Association. His articles have been published in noted
publications included New Jersey Law Journal, ABA Law Practice Management
Magazine, and New Jersey Lawyer.
He
is chair of the Elder Law Committee of the American Bar Association
General Practice Division. He is also Editor of the ABA Estate Planning
Probate Committee Newsletter and also the Criminal Law Committee
newsletter. Mr. Vercammen is a recipient of the NJSBA- YLD Service
to the Bar Award. And past Winner "General Practice Attorney
of the Year" from the NJ State Bar Association. He is a 22
year active member of the American Bar Association. He is also a
member of the ABA Real Property, Probate & Trust Section.
He
established the NJlaws website www.njlaws.com which includes many
articles on Elder Law. Mr. Vercammen received his B.S., cum laude,
from the University of Scranton and his J.D. from Widener/Delaware
Law School, where he was the Case Note Editor of the Delaware Law
Forum, a member of the Law Review and the winner of the Delaware
Trial Competition.
RECENT SPEAKING ENGAGEMENTS ON WILLS, ELDER LAW, AND
American Bar Association - Elder Law 2008 New York Annual Meeting
Edison Adult School -Wills, Elder Law & Probate- 2007, 2006,
2005, 2004, 2003, 2002 [inc Edison TV], 2001, 2000,1999,1998,1997
Nuts & Bolts of Elder Law - NJ Institute for Continuing Legal
Education/ NJ State Bar ICLE/NJSBA 2007, 2006, 2005, 2004, 2003,
2002, 2000, 1999, 1996
Elder Law and Estate Planning- American Bar Association Miami 2007
Elder Law Practice, New Ethical Ideas to Improve Your Practice by
Giving Clients What They Want and Need American Bar Association
Hawaii 2006
South Plainfield Seniors- New Probate Law 2005, East Brunswick Seniors-
New Probate Law 2005
Old Bridge AARP 2002; Guardian Angeles/ Edison 2002; St. Cecilia/
Woodbridge Seniors 2002;
East Brunswick/ Hall's Corner 2002;
Linden AARP 2002
Woodbridge Adult School -Wills and Estate Administration -2001,
2000, 1999, 1998, 1997, 1996
Woodbridge Housing 2001; Metuchen Seniors & Metuchen TV 2001;
Frigidare/ Local 401 Edison 2001; Chelsea/ East Brunswick 2001,
Village Court/ Edison 2001; Old Bridge Rotary 2001; Sacred Heart/
South Amboy 2001; Livingston Manor/ New Brunswick 2001; Sunrise
East Brunswick 2001; Strawberry Hill/ Woodbridge 2001;
Wills and Elder Law - Metuchen Adult School 1999,1997,1996,1995,1994,1993
Clara Barton Senior Citizens- Wills & Elder Law-Edison 2002,
1995
Contact the Law
Office of
Kenneth Vercammen & Associates, P.C.
at 732-572-0500
for an appointment.
Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Ave.
Edison, NJ 08817
732-572-0500
PayPal
.
Disclaimer
This web site is purely a public resource
of general New Jersey information (intended, but not promised
or guaranteed to be correct, complete, or up-to-date). It is not
intended be a source of legal advice, do not rely on information
at this site or others in place of the advice of competent counsel.
The Law Office of Kenneth Vercammen complies with the New Jersey
Rules of Professional Conduct. This web site is not sponsored
or associated with any particular linked entity unless specifically
stated. The existence of any particular link is simply intended
to imply potential interest to the reader, inclusion of a link
should not be construed as an endorsement.
Kenneth Vercammen
handles Wills, Last Will and Testament, probate contests, estate
administration, inheritance tax, executor, surrogate, Living Wills,
estates, trusts, undue influence, administrator, elder law, elderlaw,
senior citizen, eldercare, guardianship, trusts, estates, Avoid
Probate, Personal Injury, Deceased, Estate Planning, New Jersey
Lawyer, New Jersey Attorney, New Jersey Lawyers, New Jersey Law
Firm, New Jersey Legal Service, New Jersey attornies, New Jersey
legal, New Jersey law, NJ Lawyer, NJ Attorney, NJ Attorneys, NJ
Lawyers, NJ Law Firm, Middlesex County, Monmouth County, Mercer
County, Somerset County, Union County, Ocean County, Cranbury
Police, East Brunswick, Edison, Highland Park, Jamesburg, Old
Bridge, Metuchen, Monroe, New Brunswick, North Brunswick, Perth
Amboy, Piscataway, Plainsboro, Sayreville, South Brunswick, South
Plainfield, Woodbridge, Superior Court, attorny, attorney, attornee,
attorneys, atorney, ahtorny, ahtorney, ahtornee, atornee, atorny,
Layer, Lawer, Laywer, LawFirm, 08817, 07095,08816, 08901, 08903
Last Revised
August 18, 2008
© 2008 Kenneth Vercammen & Associates, P.C. |
|
