Opinion
DOCKET NO. A-1930-14T1
01-03-2017
TAMMY McGARRIGAN, Plaintiff-Respondent, v. STEPHEN MCGARRIGAN, Defendant-Appellant.
J.P. Reilly, Jr., attorney for appellant. Tammy McGarrigan, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Accurso. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-239-95. J.P. Reilly, Jr., attorney for appellant. Tammy McGarrigan, respondent pro se. PER CURIAM
Defendant Stephen McGarrigan appeals from a November 14, 2014 order denying without prejudice his motion to emancipate the parties' child and terminate his child support obligation. Because the record on appeal provides an inadequate basis for proper appellate review, we remand this matter to the trial court for additional proceedings.
Defendant and plaintiff Tammy McGarrigan divorced in 1996 following a six-year marriage. The parties' Property Settlement Agreement (PSA) provided that if their only child, then a toddler, attended college, she would "first apply for all grants, scholarships and loans to which she would be entitled." The parties agreed "to split the remaining college expenses in accordance with their incomes and assets at the time."
The child completed her undergraduate degree during the summer of 2014. In September 2014, she was accepted into a graduate MBA program. One month after her acceptance, defendant moved to emancipate the child and terminate his child support obligation. Defendant had filed a similar motion six months earlier, which was denied by a Family Part order filed in May 2014.
Plaintiff opposed the motion, arguing defendant made no contribution to their child's undergraduate education. Rather, plaintiff alleged she and the child funded the college expenses through student loans. Plaintiff asked the court to continue defendant's child support obligation through May 2016, when the child was expected to complete the MBA program. Lastly, plaintiff asserted the child remained completely financially dependent upon plaintiff and defendant's child support payments, "without which she would not be able to survive." Plaintiff alleged the child's financial dependence would continue through her MBA program.
The record also refers to the child receiving a full scholarship for her undergraduate education.
The trial court denied the motion at the conclusion of oral argument. The court was unconvinced the parties' financial circumstances had changed since another judge had denied defendant's previous application six months earlier. Nonetheless, "to obviate the need . . . for further motion practice," the court ordered plaintiff to provide defense counsel with information concerning the child's living situation and expenses, a current case information statement, and information pertaining to the nature and hours of the child's internship. The court, at defense counsel's request, also required plaintiff to disclose what job opportunities the child had sought, the cost of the graduate MBA program the child was enrolled in, and what loans, grants and scholarships the child had applied for or received.
The prior order, filed May 23, 2014, stated: "[t]he Court finds that [the child] has not yet completed her undergraduate degree." The order required plaintiff to notify defendant when the child completed her undergraduate education.
The court concluded:
Defendant's application for an order to emancipate [the child], thereby terminating
his child support obligation is denied without prejudice based on the fact that at this point in time it appears that the circumstances, but for the change from Bachelor to Master's program, are unchanged and therefore she is still pursuing her graduate degree in order to have a leg up in the employment market when she gets through with school, and that it's a denial without prejudice, but [p]laintiff is to supply to [d]efendant's counsel within [thirty] days [the information enumerated above].
The court entered a conforming order the same day, which also required plaintiff to provide an accounting of her support contribution to the child.
On appeal, defendant contends the trial court failed to consider the factors set forth in N.J.S.A. 2A:34-23(a) (listing the factors to be considered by a court in determining the amount and the duration of child support) before denying his motion. Defendant asserts that in failing to consider the statutory factors, the court abused its discretion. Defendant also argues the court erred in its determination that the child's graduation from college was not a significant change in circumstances requiring re-evaluation of defendant's support obligation.
Plaintiff contends defendant has appealed from a non-final order. She asserts the provision in the court's order requiring her to provide discovery of her and the child's considerable financial information, as well as the order's denial of defendant's motion without prejudice, evidences the court's contemplation of additional proceedings. Alternatively, plaintiff argues defendant did not appeal from the previous order and her opposing motion papers made clear neither she nor her daughter's financial plight had changed since then. Plaintiff points to defense counsel's inability, when asked by the court, to explain what circumstances had changed. Defense counsel could only point to the child's enrollment in a post-graduate program. Plaintiff suggests that if this court disagrees with her arguments, this case should be remanded to the trial court.
Plaintiff also asserts she has complied with the order's discovery provision. --------
Our analysis begins with the principle 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) (quoting Burns v. Edwards, 367 N.J. Super. 29, 39 (App. Div. 2004)). Children are emancipated when they have moved "beyond the sphere of influence and responsibility exercised by a parent and obtain[] an independent status of [their] 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 fact-sensitive evaluation must include consideration of issues such as 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). See also Newburgh v. Arrigo, 88 N.J. 529, 545 (1982).
When a child has reached the age of eighteen, the child is presumed to be emancipated, N.J.S.A. 9:17B-3, but the presumption is not conclusive. Newburgh, supra, 88 N.J. at 543. Consequently, if a child has reached age eighteen, the person seeking to have parental support continue has the burden of overcoming the statutory presumption. Llewelyn v. Shewchuk, 440 N.J. Super. 207, 216 (App. Div. 2015); Filippone, supra, 304 N.J. Super. at 308.
A well-established instance defeating a request for emancipation and requiring continued support occurs when a custodial parent proves the child remains a full-time student. Limpert v. Limpert, 119 N.J. Super. 438, 442-43 (App. Div. 1972). When a dependent child is enrolled in a full-time educational program, child support must continue. See 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"); Patetta v. Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003) (stating "while 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").
Child support for an unemancipated child is guided by the factors set forth in N.J.S.A. 2A:34-23(a), which requires consideration of:
(1) Needs of the child;
(2) Standard of living and economic circumstances of each parent;
(3) All sources of income and assets of each parent;
(4) Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment;
(5) Need and capacity of the child for education, including higher education;
(6) Age and health of the child and each parent;
(7) Income, assets and earning ability of the child;
(8) Responsibility of the parents for the court-ordered support of others;
(9) Reasonable debts and liabilities of each child and parent; and
(10) Any other factors the court may deem relevant.
We are unable to adequately review the trial court's decision under these principles. It may be, as the trial court appeared to assume, that the child's circumstances had not significantly changed since defendant's previous motion was denied six months earlier. However, such a determination cannot be made without an adequate record. Moreover, we are unable to discern from the court's November 14, 2014 order — denying the motion without prejudice but requiring plaintiff to provide significant financial information concerning her daughter — whether the court anticipated conducting further proceedings. Denial of the motion without prejudice suggests the court contemplated further proceedings before the parties' daughter completed the MBA program.
For those reasons, we remand this matter to the trial court for further proceedings. If the trial court anticipated conducting further proceedings, then it should schedule a management conference and schedule any additional motion practice or a hearing, if necessary. If, on the other hand, the trial court did not intend to conduct additional proceedings, then the court shall amplify its decision with findings of fact and conclusions of law, applying, among other things, the statutory factors concerning child support. Additionally, if the court enters the order without prejudice, it should explain its rationale so that neither the parties nor an appellate court are left to speculate about the court's intention. Lastly, if as a result of the remand proceedings the trial court needs to modify its November 2014 order, it should do so.
Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION