Opinion
DOCKET NO. A-4470-11T2
2013-10-11
GEORGIA SIMONE, Plaintiff-Respondent, v. JOSEPH SERFOZO, Defendant-Appellant.
Brian W. DeRosa, attorney for appellant. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fasciale and Haas.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FD-02-749-94.
Brian W. DeRosa, attorney for appellant.
Respondent has not filed a brief. PER CURIAM
Defendant appeals from a December 16, 2011 order un-emancipating the parties' daughter (the "daughter"), and a March 26, 2012 order denying reconsideration. The primary question presented to the judge was whether the daughter was a full-time student. We conclude that the judge properly un-emancipated the daughter and affirm.
In June 2011, defendant filed a motion to emancipate the daughter and terminate his support obligations. He contended that the daughter was nineteen years old, she was not "currently" attending college, and "to the best of [defendant's] knowledge[,] and based on [defendant's] limited conversations with [the daughter], [he believed that she was] employed." On July 22, 2011, the court granted defendant's motion and entered an "unopposed order." After the return date, plaintiff pro se asserted that she did not receive notice of the motion. She then filed a "reply certification" objecting to defendant's request to emancipate the daughter.
In September 2011, plaintiff filed a motion to un-emancipate the daughter and reinstate defendant's support obligations. On November 4, 2011, the judge entered an order denying plaintiff's motion on the papers; however, in late November, plaintiff filed another motion to reinstate defendant's child support and un-emancipate the daughter. Plaintiff maintained that she did not receive defendant's June 2011 motion papers, certified that the daughter was a full-time student, and provided to the judge a college schedule to support her contention that the daughter was a full-time student. Defendant then filed a reply certification indicating that plaintiff had failed to show that the daughter was enrolled in college.
On October 21, 2011, the judge entered an order adjourning this motion to November 4, 2011 and indicated that the matter would be decided on the papers.
On December 16, 2011, the judge conducted a hearing at which defendant's counsel, plaintiff, and the daughter appeared. The judge conducted this hearing in light of the convoluted procedural history and to resolve the factual dispute regarding whether the daughter was attending college. At the hearing, defendant's counsel was unable to dispute that the daughter was a full-time student. The judge stated,
I . . . have [the daughter's] course list for fall 2010 and spring 2011 . . . . [S]he's enrolled in classes . . . for 2011 and spring 2012. So[,] she's in her second year [of college].The judge then questioned plaintiff and the daughter, reserved decision, and issued a written opinion. In her written opinion, the judge found that the daughter was a full-time college student, and that plaintiff "raised serious doubts as to whether [plaintiff] received notice of the [d]efendant's [June 2011] motion to emancipate [the daughter]." On December 16, 2011, the judge granted plaintiff's motion, un-emancipated the daughter, and concluded that plaintiff met her burden of rebutting the statutory presumption of emancipation.
I also have the listings of the credit hours and the courses that she's taken for fall 2010 and spring 2011, fall 2011, [and] spring 2012. And I also have . . . her report card . . . for fall 2010 and spring 2011. Obviously, she doesn't have her report card for fall 2011 or spring 2012, yet.
The judge awarded counsel fees to defendant's attorney in the amount of $1696 because plaintiff "failed to comply with the rules and procedures of the family court." The December 16, 2011 order does not specifically vacate the November 4, 2011 order denying plaintiff's motion to un-emancipate the daughter and reinstate defendant's support obligations, but it is clear that the judge intended to do so.
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On January 24, 2012, defendant filed a motion for reconsideration of the December 16, 2011 order. Defendant argued primarily that pro se plaintiff filed her motions out of time and there is insufficient evidence in the record to un-emancipate the daughter. On March 26, 2012, the judge conducted oral argument on the reconsideration motion. The judge stated
I don't have any information before me today which would cause this [c]ourt to reconsider [my findings] that [the daughter] was not emancipated and that her parents were still required to support [the daughter] through college.Defendant's counsel admittedly raised new contentions that defendant underwent surgery and that the court should consider that defendant had a limited income. The judge stated that "if you can show me some significant change in circumstances, . . . that I didn't know about [in December 2011], I would be inclined to grant [defendant's motion for reconsideration], but there's nothing that you're presenting today that I didn't know back in December 2011." As a result, she denied the reconsideration motion. This appeal followed.
. . . .
[I]f you can produce proof to this [c]ourt that [the daughter] is not . . . a bona fide student, [then] you can make an application to the [c]ourt.
On appeal, defendant argues essentially that there is insufficient evidence in the record to un-emancipate the daughter. Defendant does not contend on appeal that the judge erred generally by un-emancipating an emancipated child. Rather, he challenges whether ultimately there is sufficient evidence to emancipate the daughter.
The decision to emancipate a minor child from his or her parents necessarily involves a Family Court's inherent equitable powers. Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006). As a result, we review a trial court's decision regarding the emancipation of a child under an abuse of discretion standard. See Sears Mortg. Corp. v. Rose, 134 N.J. 326, 354 (1993). Using this standard, we see no abuse.
The emancipation of a child does not automatically occur at any specific age, but rather, is a fact-sensitive inquiry. Dolce, supra, 383 N.J. Super. at 17. The essential question "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)). In making this determination a court must engage in "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 (relying on Newburgh v. Arrigo, 88 N.J. 529, 545 (1982)).
Here, the judge found, after conducting a hearing in December 2011, that the daughter was a full-time college student. The judge reached that determination after she reviewed the competing certifications of the parties; questioned plaintiff, the daughter, and defendant's counsel; and described the class schedules for the daughter's 2010-2011 and 2011-2012 college courses. During the December 2011 hearing and on reconsideration, defendant was unable to produce any credible evidence to challenge the daughter's full-time status as a college student. The record further reveals that the daughter resides with plaintiff.
Finally, the judge reminded defense counsel, especially after defendant's counsel raised new arguments on reconsideration purportedly establishing changed circumstances, that he can file a new motion if warranted. We conclude that defendant's remaining arguments are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION