Lisa Llewelyn v. James Shewchuk

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0596-13T1

LISA LLEWELYN, f/k/a LISA SHEWCHUK,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

April 13, 2015
v.
APPELLATE DIVISION
JAMES SHEWCHUK,

Defendant-Respondent.

________________________________________

Argued October 15, 2014 – Decided April 13, 2015

Before Lihotz, Espinosa and Rothstadt.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Camden
County, Docket No. FM-04-271-02.

Michael P. Albano argued the cause for
appellant Adrianna Shewchuk (Albano & Viola,
L.L.C., attorneys; Mr. Albano, on the
briefs).

Maury K. Cutler argued the cause for
respondent James Shewchuk.

Respondent Lisa Llewelyn has not filed a
brief.

The opinion of the Court was delivered by

ROTHSTADT, J.A.D.
 Appellant, Adrianna Shewchuk, the parties' adult daughter,

appeals from the Family Part's August 23, 2013 order granting

defendant's motion to terminate child support because she was

emancipated, which the court entered with plaintiff's consent.

Appellant appeared as an "[i]nterested [p]arty" and participated

in the motion.1 On appeal, she argues she is not emancipated as

she "has not moved beyond [her parents'] sphere of influence or

responsibility . . . and has not obtained an independent status

of her own[.]" Defendant James Shewchuk argues in opposition

his daughter's voluntary actions resulted in her being

emancipated, justifying the court's entry of the subject order.

We have carefully reviewed the record and considered the

arguments presented in light of the applicable legal principles.

We affirm.

We discern the facts from the motion record. Appellant was

born in 1992 to plaintiff and her biological father. The

parties were married in August 1994, and defendant adopted

appellant that same year. Approximately a year later, a child

was born to the parties. The parties divorced in 2002 and

shared joint custody of the two children. Plaintiff was

designated as the parent of primary residence and defendant was

1
The court did not enter an order permitting her intervention.
See R. 4:33.

2 A-0596-13T1
to pay child support and contribute to the children's college

costs.

In April 2013, defendant filed a motion seeking various

relief, including having appellant declared emancipated.

According to defendant's supporting certification, he learned

appellant left plaintiff's home and moved into the home of her

biological father as of January 1, 2013, she was not attending

school (she graduated from high school in 2011), and was

working. In her responsive certification, plaintiff confirmed

appellant moved in with her biological father on January 1, but

plaintiff thought the move was only temporary. However, as

appellant never returned to her residence, plaintiff "join[ed]

in on [d]efendant's [m]otion to emancipate [appellant]

immediately" and consented to terminating the child support

order and crediting defendant with any overpayment.

Appellant filed two certifications in opposition to

defendant's motion. In her first certification, she confirmed

she left her mother's home in December 2012 to live with her

biological father, although she never identified a reason for

the move. She further stated she was a "full-time student at" a

community college as she "started taking classes in the summer

of 2011 . . . [and she was] continuing [her] education" at a

different community college "pursuing an associate's degree and

3 A-0596-13T1
then . . . plan[ning] on continuing [her] education in the

medical field." In support of her statement, she provided a

copy of her college transcript from the first school she

attended. Appellant also confirmed she was working part-time at

a doughnut shop, earning $7.75 per hour. Based on these facts,

appellant argued she was "not emancipated," "[could not]

support" herself "or live independently." According to

appellant, her "biological father and his wife [were] supporting

[her]."

The "unofficial" community college transcript appellant

provided revealed she took one course in the summer of 2011, for

which she did not receive college credits. In the ensuing year

she took thirty credits, an additional three credits in the

summer of 2012 and thirteen more credits in the fall term. She

did not provide transcripts from the second school, but instead

supplied "Registration Statement and Bill" documents issued by

the school. Those statements, for the period after she left her

mother's home, show appellant registered for eight credits for

spring 2013 and twelve credits for the fall 2013 semester. A

course schedule form for the spring 2014 semester indicated

appellant intended to take twelve credits.

Appellant also filed a supplemental certification in

further opposition to her father's motion. In that

4 A-0596-13T1
certification, appellant confirmed she was registered for the

fall 2013 semester at the second school, she was taking four

classes and her "natural father's wife paid [the] bill." She

also explained in the spring 2013 semester she originally

registered for four classes for eleven credits, dropped a class

and completed the remaining eight credits. Appellant stated

that her "natural father's wife paid $705.25" of the $1024

tuition bill and $441.10 for her books.

Appellant also stated she had "been seeing [her] doctors

for depression and anxiety[,]" and attached a copy of a

"Clinical Visit Summary" for an examination conducted on July

22, 2013, by an internist and a July 22, 2013 letter from a

psychologist. The summary listed the symptoms that the

physician addressed during the examination, recorded her vitals

and listed her medications, which included anti-anxiety and

anti-depressive medications. It did not indicate a diagnosis.

The psychologist's letter, addressed "to whom it may concern,"

stated "appellant has been a patient of mine since March 2013,

and is diagnosed with an anxiety disorder with mixed anxiety and

depression related to her family situation."

The court considered oral argument on August 23, 2013.

Counsel for appellant and both parties appeared. At the

conclusion of counsel's arguments, the court relied upon our

5 A-0596-13T1
decision in Filippone v. Lee, 304 N.J. Super. 301 (App. Div.

1997), found appellant left her mother's home and was being

supported by "other people," and concluded "by her own choosing,

she . . . moved beyond the sphere of influence and

responsibility exercised by her parents, and she is now

independent of her parents." The court entered an order

memorializing its decision and this appeal followed.

Clear standards guide our limited review. We "do not

disturb the factual findings and legal conclusions of the trial

judge unless we are convinced that they are so manifestly

unsupported by or inconsistent with the competent, relevant and

reasonably credible evidence as to offend the interests of

justice . . . . " Rova Farms Resort, Inc. v. Investors Ins. Co.

of Am., 65 N.J. 474, 484 (1974) (citation and internal quotation

marks omitted). Also, "[b]ecause of the family courts' special

jurisdiction and expertise in family matters, appellate courts

should accord deference to family court factfinding." Cesare v.

Cesare, 154 N.J. 394, 413 (1998). Accordingly, when a reviewing

court concludes there is satisfactory evidentiary support for

the trial court's findings, "its task is complete and it should

not disturb the result, even though it has the feeling it might

have reached a different conclusion were it the trial tribunal."

6 A-0596-13T1
Beck v. Beck, 86 N.J. 480, 496 (1981) (citation and internal

quotation marks omitted).

However, we confer no deference to a trial court's

interpretation of the law, which we review de novo to determine

whether the judge correctly adhered to applicable legal

standards. See Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995). Reversal is reserved only

for those circumstances when we determine the factual findings

and legal conclusions of the trial judge went "so wide of the

mark that a mistake must have been made." N.J. Div. of Youth &

Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citation and

internal quotation marks omitted). It is when we are convinced

the trial court's determinations "are so manifestly unsupported

. . . as to offend the interests of justice," that we intervene.

Rova Farms, supra, 65 N.J. at 484 (internal citation and

quotation marks omitted) accord N.J. Div. of Youth & Family

Servs. v. E.P., 196 N.J. 88, 104 (2008).

We begin our review by recognizing a child's right to

pursue support from his or her parents. Children of divorced

parents have the right "to be supported at least according to

the standard of living to which they had grown accustomed prior

to the separation of their parents." Pascale v. Pascale, 140

N.J. 583, 592 (1995) (citations and internal quotation marks

7 A-0596-13T1
omitted). "[O]ne of the fundamental concepts in American

society is that parents are expected to support their children

until they are emancipated, regardless of whether the children

live with one, both, or neither parent." Colca v. Anson, 413

N.J. Super. 405, 414 (App. Div. 2010) (citations and internal

quotation marks omitted). "The obligation to provide child

support is [i]ngrained into our common law, statutory, and rule-

based jurisprudence." Ibid. (citations and internal quotation

marks omitted). "Accordingly, a parent is obliged to contribute

to the basic support needs of an unemancipated child to the

extent of the parent's financial ability[.]" Ibid. (alteration

in original)(citation and internal quotation marks omitted).

"[I]t is also firmly established that child support is for

the benefit of the children; therefore, the right to receive

support belongs to the children, not the custodial parent."

Ibid. (citations omitted). A child's right to support is,

therefore, enforceable not only at the insistence of a custodial

parent against a non-custodial parent, but at the child's

insistence as well. See Uniform Parentage Act, N.J.S.A. 9:17-

45(a) and (b); and -53 (c)(permitting an adult child to bring an

action for paternity and support up to the age of twenty-three);

and Sakovits v. Sakovits, 178 N.J. Super. 623, 631 (Ch. Div.

1981) (holding that a previously emancipated child should not

8 A-0596-13T1
"forever . . . be estopped from seeking . . . contribution from

his parents" towards beginning or resuming his education).

Enforcement by the child is not necessarily defeated by the

fact that she has reached the age of majority. "In certain

situations, parents still have an economic duty to support

children after their eighteenth birthday, . . . ." N.J. Div. of

Youth & Family Services v. W.F., 434 N.J. Super. 288, 296 (App.

Div.) (quoting Newburgh v. Arrigo, 88 N.J. 529, 543 (1982)),

certif. denied, 218 N.J. 275 (2014)). "[I]n appropriate

circumstances, the privilege of parenthood carries with it the

duty to assure [for example] a necessary education for

children." Newburgh, supra, 88 N.J. at 543; see also Gac v.

Gac, 186 N.J. 535, 542 (2006) ("The Legislature and our courts

have long recognized a child's need for higher education and

that this need is a proper consideration in determining a

parent's child support obligation.").

A determination of emancipation is a legal concept, imposed

when the fundamental dependent relationship between parent and

child ends. See Dolce v. Dolce, 383 N.J. Super. 11, 17 (App.

Div. 2006) (stating emancipation is "the conclusion of the

fundamental dependent relationship between parent and child").

It is not automatic and "need not occur at any particular age

. . . ." Newburgh, supra, 88 N.J. at 543. When the

9 A-0596-13T1
circumstances surrounding the parent-child relationship support

a finding the child is emancipated, "the parent relinquishes the

right to custody and is relieved of the burden of support, and

the child is no longer entitled to support." Filippone, supra,

304 N.J. Super. at 308. However, a child's right to support is

also not "defeated merely because both parents are united in

their determination to declare the child emancipated." Johnson

v. Bradbury, 233 N.J. Super. 129, 136 (App. Div. 1989).

The law also provides that once a child reaches the age of

majority, now eighteen, N.J.S.A. 9:17B-3, a parent has

established "prima facie, but not conclusive, proof of

emancipation." Ibid. (citations omitted). Once the presumption

is established, the burden of proof to rebut the statutory

presumption of emancipation shifts to the party or child seeking

to continue the support obligation. See Filippone, supra, 304

N.J. Super. at 308. The presumption of emancipation may be

overcome by evidence that a dependent relationship with the

parents continues because of the needs of the child. Dolce,

supra, 383 N.J. Super. at 18.

Deciding whether a child is emancipated requires a fact-

sensitive analysis. Newburgh, supra, 88 N.J. at 543. "[T]he

essential inquiry is whether the child has moved beyond the

sphere of influence and responsibility exercised by a parent and

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obtains an independent status of his or her own." Filippone,

supra, 304 N.J. Super. at 308 (citations and internal quotation

marks omitted). A court's emancipation "determination involves

a critical evaluation of the prevailing circumstances including

the child's need, interests, and independent resources, the

family's reasonable expectations, and the parties' financial

ability, among other things." Dolce, supra, 383 N.J. Super. at

18 (citing Newburgh, supra, 88 N.J. at 545).

The critical evaluation required for emancipation

determinations typically necessitates a plenary hearing,

especially "when the submissions show there is a genuine and

substantial factual dispute[,]" which the trial court must

resolve. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div.

2007); see also Tretola v. Tretola, 389 N.J. Super. 15, 20 (App.

Div. 2006) (reversing motion on emancipation because the court

"failed to recognize there were material facts in dispute and

evidence beyond the motion papers necessary for resolution of

the matter" required a plenary hearing); Conforti v. Guliadis,

128 N.J. 318, 322 (1992) (holding plenary hearings are required

when there are "contested issues of material fact on the basis

of conflicting affidavits"). However, "[a]s is particularly the

case in matters that arise in the Family Part, a plenary hearing

11 A-0596-13T1
is only required if there is a genuine, material and legitimate

factual dispute." Segal v. Lynch, 211 N.J. 230, 264-65 (2012).

Following our review, we conclude appellant's opposition to

defendant's motion did not trigger the obligation for a plenary

hearing, Harrington v. Harrington, 281 N.J. Super. 39, 47 (App.

Div.), certif. denied, 142 N.J. 455 (1995), because the

certifications filed did not present a material factual dispute.

"All of the relevant material was supplied to the motion judge

. . . at the time of the original application . . . ." Fineberg

v. Fineberg, 309 N.J. Super. 205, 218 (App. Div. 1998). "A

plenary hearing would adduce no further facts or information,"

ibid., as it was undisputed appellant voluntarily moved out of

her mother's home to live with her biological father, attended

community college part-time, had her expenses paid for by his

wife, worked and was under a doctor's care for anxiety and

depression. No other facts were raised.

Appellant argues although she is a legal adult and chose to

relocate to her biological father's home, she remains a student

and needs financial assistance, now provided by a third party

who has no legal obligation to do so. Appellant has presented

no legal authority directly on point to support her claim she is

not emancipated under these circumstances.

12 A-0596-13T1
 In cases involving minors or adult children with special

needs, we determined "residence by a minor apart from his

parents does not by itself result in emancipation." Filippone,

supra, 304 N.J. Super. at 311 (citation omitted). We also

observed: "Other states have, even more to the point, expressly

held that a troubled minor's removal from his parents' home to a

public or private institutional alternative or even to the home

of friends or relatives does not relieve the parents of their

support obligation during minority provided the child is not

entirely self-supporting." Ibid. (citations omitted). In L.D.

v. K.D., 315 N.J. Super. 71 (Ch. Div. 1998), the Family Part

refused to emancipate a nineteen year-old high school student

who, with the aid and consent of her mother, the custodial

parent, lived in an apartment with roommates so she could finish

her studies in the same school district. Id. at 76-77. The

court relied on the fact that the child, who had handicaps and

disabilities, "was pursuing her senior year of high school [and]

was completely financially dependent upon her mother who also

utilized the child support paid by her father to finance [the

child's] living arrangement." Id. at 77.

We find appellant's situation to be extremely different.

Although she provided information about her treatment for

depression and anxiety, there was no evidence her issues

13 A-0596-13T1
interfered with her ability to be independent. Also, unlike the

cases we previously considered, there was no evidence of her

parents continuing to provide her with support once she left her

mother's home. Rather, to the extent appellant required any

support, she voluntarily relied upon support provided by others

who were not under any legal obligation to provide her with

anything.

We conclude the Family Part judge correctly determined

appellant failed to rebut the presumption of her emancipation.

It was undisputed she voluntary left her mother's home at the

age of twenty to live with her biological father. She simply

withdrew from her parents' supervision and control, obtained

part-time employment, sporadically attended school and arranged

for her support in reliance upon the financial relationship she

entered into with her biological father and his wife. The

Family Part correctly found under these circumstances appellant

emancipated herself and the motion judge properly applied the

law to these facts.

Affirmed.

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