DEBORAH A. CONTE VS. DAVID S. AINSWORTH (FD-12-0446-93, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3337-15T1
DEBORAH A. CONTE,

Plaintiff-Appellant,

v.

DAVID S. AINSWORTH,

Defendant-Respondent.

__________________________________________

Submitted May 25, 2017 – Decided August 31, 2017

Before Judges Lihotz and O'Connor.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex
County, Docket No. FD-12-0446-93.

Deborah A. Conte, appellant pro se.

Jabin & Fleming, LLC, attorneys for
respondent (Christian P. Fleming, on the
brief).

PER CURIAM

Plaintiff Deborah A. Conte (mother) appeals from a March 2,

2016 Family Part order declaring the parties' daughter

emancipated and terminating defendant David S. Ainsworth's
(father) obligation to pay child support. We reverse and remand

for further proceedings.

I

We derive the following facts from the motion record. The

parties' child was born in 1992 and is presently twenty-five

years of age. In 1992, the parties executed an agreement which

established parenting time and a weekly child support amount the

father was to pay the mother. The father agreed to pay child

support until the child was deemed emancipated. At the time the

court declared the child was emancipated, the father was paying

$330 per week. The father never exercised parenting time and

saw the child for the first time when she was an adult.

In their agreement, the parties defined when the child was

to be deemed emancipated. Among other things, emancipation was

to occur "upon the completion of the child's college education."

The agreement did not address the parties' contribution toward

graduate school or, for that matter, college, apart and aside

from the father's agreement to pay child support until the child

completed college.

In May 2015, the child graduated from Caldwell University,

with honors, with a B.A. in psychology and art. The child

managed to graduate from college even though, according to the

mother, the child suffers from debilitating anxiety and

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depression, for which she had been treated with medication and

therapy. In September 2015, the child enrolled in a two-year

program at the same institution to obtain a Master's Degree in

mental health counseling. As she had throughout college, the

child planned to live in her mother's home while attending

graduate school.

One month after the child graduated from college, the

father unilaterally reduced his weekly child support obligation

from $330 per week to $250 per week, and in August 2015, filed a

motion to emancipate the child. The mother filed a cross-motion

to compel, among other things, the father to: (1) pay child

support in the amount of $390 per week; (2) pay arrears in the

amount of $880; (3) pay one-half of the child's graduate school

expenses; (4) reimburse the child $10,647.50, representing one-

half of the student loans the child borrowed to pay for the last

two years of college; (5) provide a completed Financial

Statement for Summary Support Actions and Confidential Litigant

Information Sheet; and (6) pay counsel fees.

In the certification she filed in support of her motion,

the mother stated the cost for the child to attend the graduate

program was about $16,000 per year. Although the child had

obtained student loans in the past, the mother made no mention

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of whether the child sought financial aid to defray graduate

school costs.

The mother noted her income was limited to Social Security

disability benefits of $1470 per month, plus food stamps,

severely restricting her ability to contribute to the cost of

the child's education. However, the mother had used the weekly

child support payments to help pay for the child's food,

shelter, and other living expenses. The mother did not indicate

if the child had any assets or income. She mentioned the father

was a practicing dentist, but did not know his income.

The father's position was straightforward. In his view,

because the child had graduated from college, she was

emancipated under the terms of the parties' agreement.

Therefore, he maintained his obligation to pay child support

should be terminated.

The trial court granted the father's motion to emancipate

the child and to terminate his obligation to pay child support.

The trial court held the child's emancipation was "guided by the

agreement [the parties] entered into back in 1992. . . . Once

she graduated from college, not post graduate, . . . the support

obligation would stop. . . . Typically, under the laws of

emancipation there would be some other considerations, but the

agreement is what it is."

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 II

The mother challenges the court's determination to

emancipate the child and terminate the father's child support

obligation. Specifically, she contends the court erred by

focusing on only the parties' agreement to determine the child

was emancipated upon her graduation from college. The mother

maintains the court should have utilized the factors provided by

decisional authority addressing emancipation, such as Newburgh

v. Arrigo, 88 N.J 529 (1982), to determine if the child was in

fact emancipated and, if not, whether the father was obligated

to contribute to the cost of graduate school. She also

complains the court failed to rule on the other points of relief

she sought in her notice of cross-motion.

The father argues the parties' agreement is binding and

thus dispositive on the issue of the child's emancipation. He

also notes that, because there is no relationship between him

and the child, not to mention the child failed to discuss going

to graduate school with him before she enrolled in the graduate

program, under Newburgh, he is not required to contribute to the

cost of graduate school, including paying child support.

At the outset, we review the fundamental legal principals

governing the issues under review. We generally defer to a

trial court's findings of fact, unless they are demonstrated to

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lack support in the record or are inconsistent with the

substantial, credible evidence. Rova Farms Resort, Inc. v.

Inv'rs Ins. Co., 65 N.J. 474, 483-84 (1974). However, we owe no

special deference to a trial court's "interpretation of the law

and the legal consequences that flow from established facts."

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,

378 (1995).

"One 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)).

"[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. 508,

513 (App. Div. 1993).

Parents may agree child support is to terminate upon the

occurrence of a certain event, but the right of a child to be

supported by his or her parents is one that belongs to the child

and cannot be waived by the custodial parent. Patetta v.

Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003) (citing Pascale

v. Pascale, 140 N.J. 583, 591 (1995)). A child's right to

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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).

"[T]he parental duty to support a child may not be waived or

terminated by a property settlement agreement." Patetta, supra,

358 N.J. Super. at 95; see also Martinetti, supra, 261 N.J.

Super. at 512 (finding right to child support not barred by a

property settlement agreement providing for the termination of

support when the child turned eighteen).

When a child reaches eighteen, the age of majority in this

State, a parent can establish "prima facie, but not conclusive,

proof of emancipation," see Newburgh, supra, 88 N.J. at 543

(citing Alford v. Somerset Cty. Welfare Bd., 158 N.J. Super.

302, 310 (App. Div. 1978), and the burden of persuasion shifts

to the party seeking to maintain support to rebut the

presumption of emancipation. Filippone v. Lee, 304 N.J. Super.

301, 308 (App. Div. 1997).

At that point, in determining whether a child is

emancipated, "the 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.'" Ibid. (quoting Bishop v. Bishop, 287 N.J. Super.

593, 598 (Ch. Div. 1995)). Such a "determination involves a

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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 v. Dolce, 383 N.J. Super.

11, 18 (App. Div. 2006) (citing Newburgh, supra, 88 N.J. at

545).

"[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, supra, 358 N.J. Super. at 94. Contributing toward the

cost of a higher education, including graduate school, is a form

of support for an unemancipated child. Gac v. Gac, 186 N.J.

535, 542 (2006). "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.

However, before considering whether a parent is required to

contribute toward the child's support or higher education, the

question whether the child is emancipated must be answered.

If the child is emancipated, the child's parents have no

obligation to contribute toward the support of that child,

including his or her higher education. But if the child is

unemancipated and is seeking a parent's contribution toward

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higher education, "the next consideration is whether the child

has an aptitude for college." Ricci v. Ricci, 448 N.J. Super.

546, 573 (App. Div. 2017). If so, "then parental ability to

afford the significant cost of college must be examined; it is

not presumed." Ibid. To determine the extent to which a parent

is to contribute toward a higher education, the factors in

Newburgh must be considered.1 Ibid.

1
These factors are:

(1) whether the parent, if still living with
the child, would have contributed toward the
costs of the requested higher education; (2)
the effect of the background, values and
goals of the parent on the reasonableness of
the expectation of the child for higher
education; (3) the amount of the
contribution sought by the child for the
cost of higher education; (4) the ability of
the parent to pay that cost; (5) the
relationship of the requested contribution
to the kind of school or course of study
sought by the child; (6) the financial
resources of both parents; (7) the
commitment to and aptitude of the child for
the requested education; (8) the financial
resources of the child, including assets
owned individually or held in
custodianship or trust; (9) the ability of
the child to earn income during the school
year or on vacation; (10) the availability
of financial aid in the form of college
grants and loans; (11) the child's
relationship to the paying parent, including
mutual affection and shared goals as well as
responsiveness to parental advice and
guidance; and (12) the relationship of the

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 Here, the court determined the child was emancipated

because the parties agreed she would be once she finished

college. However, the fulfillment of one of the parties'

definitions of emancipation – graduation from college – was not

dispositive of the issue of the child's emancipation. As

previously stated, the right to child support belongs to the

child, not the parent, and cannot be waived by an agreement

between the parents.

The court was obligated to examine whether the child was in

fact emancipated and, if the child is found unemancipated,

calculate the amount of support she needs and each parent's

obligation toward that need. The court must examine the child's

needs and financial resources to determine the extent of the

child's financial dependence upon her parents, if any, as she

continues her educational endeavors. Many graduate programs

provide teaching assistant positions and other earning

opportunities allowing students to defray living

expenses. Also, the child's ability to earn income, now that

education requested to any prior training
and to the overall long-range goals of the
child.

[Newburgh, supra, 88 N.J. at 545.]

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she has completed undergraduate education, must be weighed when

examining the extent of the child's need for support.

Thereafter, there must be an examination of whether either

parent is obligated to contribute toward the cost of her higher

education, after taking into consideration the Newburgh factors.

These factors govern the outcome and whether and to what extent

the parties are required to contribute toward graduate school

costs.

In addition, the father and child have never had a

relationship. Why that is so may be relevant on the question of

whether the father is required to contribute toward the cost of

the child's higher education. See Philipp v. Stahl, 344 N.J.

Super. 262, 272-73 (App. Div. 2001) (finding the absence of a

relationship between parent and child is "one of the many

factors to be considered when determining post-secondary

support"), rev'd on other grounds, 172 N.J. 293 (2002). Here,

if the child is deemed unemancipated and a party considers the

relationship between the father and child material on the

question of whether the father should contribute to the child's

higher education costs, he or she may raise such issue.

Accordingly, for the reasons provided, we reverse the March

2, 2016 order and remand the matter for further proceedings

consistent with this opinion.

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 Finally, the mother complains the court did not address the

other points raised in her notice of cross-motion including,

among other things, her request for child support arrears that

accrued before the court terminated child support. We agree the

court did not explicitly rule on this and other requests,

although many were implicitly denied when the court granted the

father's motion and declared the child emancipated. On remand,

the court shall make explicit rulings on the requests for relief

listed in the mother's notice of cross-motion.

Reversed and remanded for further proceedings consistent

with this opinion. We do not retain jurisdiction.

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