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(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0386-09T30386-09T3 CAROL MATHER, Plaintiff-Appellant, v. GORDON BABCOCK, Defendant-Respondent. _______________________________

Argued May 18, 2010 - Decided Before Judges Parrillo and Lihotz. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-633-00. John A. Underwood argued the cause for Appellant (Underwood & Micklin, LLC, attorneys; Mr. Underwood, on the brief). Michael S. Rothmel argued the cause for respondent. PER CURIAM Plaintiff Carol Mather appeals from two post-judgment Family Part orders emancipating the parties' children and terminating defendant Gordon Babcock's obligation to pay child support. On appeal, plaintiff, although not conceding that the children are emancipated, argues the court erred in retroactively fixing the date of emancipation and the amount of credit for the overpayment of support without conducting a plenary hearing. Both children reside with plaintiff. She advanced the older child suffered from a disabling medical condition while the younger child had enrolled and paid tuition as a full-time student in the county community college. The court rejected as insufficient the proffered evidential support regarding the older child's disability. With respect to

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the younger child, it was discovered that he had not successfully completed most classes, earning only fifteen credits over three semesters. Plaintiff maintains she was duped and believed the child was passing all courses. The court concluded both children were emancipated and retroactively terminated child support. The dates of emancipation were fixed for the older child, on the date defendant first filed his motion and, for the younger child, on the date he was last a full-time student. Consequently, a large overpayment was calculated, which plaintiff was ordered to satisfy at the rate of $125 per week. On appeal, plaintiff argues the order requiring reimbursement of support and college tuition payments is unfair and inequitable. She also believes the court should have conducted a plenary hearing to determine whether, and if so, when, the children became emancipated, whether reimbursement was warranted, and the method of repayment based on plaintiff's lifestyle needs. We conclude the motion judge's determinations were properly premised upon substantial credible facts in the record and consonant with applicable legal principles. Further, we discern no abuse of discretion in denying plaintiff's request for a plenary hearing. We reject plaintiff's contention that she should not bear the costs of reimbursement resulting from the younger child's deception. In balancing the equities, we conclude a custodial parent who advances a request for support, based on an unemancipated child's pursuit of full-time, post-secondary education, bears the burden of proof and shall confirm the child's compliance with the educational endeavors underpinning the claim. Here, plaintiff should have known the child was not attending classes, studying or otherwise fulfilling the degree requirements. Accordingly, we affirm. I. The parties were married on October 18, 1975 and have four children. A Final Judgment of Divorce, which incorporated a Property Settlement Agreement (PSA), was entered on July 13, 2000. The PSA awarded sole custody of the children to plaintiff and required defendant to pay alimony and child support until "the first of the following [events] occur: . . . (4) the completion of schooling by a child (including college), or (5) the child's becoming emancipated." On September 22, 2008, plaintiff filed a post-judgment motion seeking, among other relief, an increase in child support for the younger two children, as their siblings previously had been emancipated. In her supporting certification, plaintiff averred the older child, then age twenty-five, was afflicted with gigantism, a condition causing

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excessive growth and above-average height as a result of an over-production of human growth hormone, and unable to work. The younger child, age twenty-one, had returned to reside with her after transferring from a college in Michigan and was attending Camden County College (CCC). On October 23, 2008, defendant filed a cross-motion to emancipate the two children and terminate his support obligation. He argued the older child's condition did not preclude employment and challenged the purported educational status of the younger child. Buttressing his application, defendant attached emails between the older child and a family friend discussing anticipated employment and the younger child's course registrations showing enrollment in "freshman level courses" during what was the fifth college semester. The motion judge found a change in circumstances had occurred since entry of the last child support order warranting a review of defendant's support obligations. In its November 7, 2008 order, the Family Part judge denied defendant's request for emancipation and recalculated child support without prejudice, pending presentation by plaintiff of documentation demonstrating the children's continued dependence. Specifically, plaintiff was ordered to release the older child's records confirming a medical disability precluding employment and to submit an application for Medicaid and other available government assistance. Also, plaintiff was required to prove the younger child was, and continued to be, a full-time student, including verification of periods of attendance along with all grades received and credits earned. On January 23, 2009, defendant again moved for suspension of child support and reimbursement of monies paid for child support and college tuition. He stated the Social Security Administration (SSA) denied the older child's application for disability. Further, plaintiff failed to provide proof of the younger child's college grades and credits. Plaintiff opposed the application, asserting the SSA denial was not conclusive on the issue of disability. She provided a letter from the child's physician, explaining gigantism "makes it difficult for [the older child] to work on a full-time basis." Also, plaintiff introduced notice of a scheduled appointment with a New Jersey Department of Labor and Workforce Development, Division of Vocational Rehabilitative Services (DVRS) counselor. Further, plaintiff attached a CCC transcript showing enrollment in four courses for each of the Spring and Fall 2008 semesters, totaling twenty-five credits and proof of current enrollment in four courses for the Spring 2009 semester. Although the transcript was redacted to omit the grade for each course, plaintiff stated she "know[s] [the younger child]" and believed the child "[wa]s trustworthy." Additionally, plaintiff included an uncertified letter authored by the child, which stated, "revealing my grades other than government financial aid is a breach of my privacy . . . . Defendant has no privilege to see my grades."

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In an order filed March 3, 2009, the court denied defendant's motion for emancipation without prejudice. In analyzing the documentation provided to verify the older child's circumstances, the motion judge rejected both the physician's letter and the scheduled appointment with DVRS as proof of an inability to work. Nevertheless, the judge granted plaintiff an additional opportunity to provide evidential support of the child's total or partial disability. The judge determined plaintiff's attachments substantiated the younger child's full-time college enrollment but ordered release, within thirty days, of information pertinent to his academic progress as a condition of continued tuition payments. Plaintiff was ordered to provide proof of the younger child's earned credits, class withdrawals, grades earned, financial aid received, tuition payments made, and anticipated date of graduation. On May 15, 2009, defendant moved a third time for retroactive termination of his child support obligation. He argued the information plaintiff supplied failed to substantiate the children's continued financial dependence. Regarding the older child, defendant sought termination of his support obligation effective October 23, 2008, the date of his initial emancipation motion. Noting plaintiff had supplied only (1) an October 25, 2002 physician's letter stating that the child was "clinically stable - however, has frequent syncopal [i.e. fainting] episodes," and (2) a notice of eligibility for vocational planning from DVRS, defendant maintained these documents did not corroborate the alleged inability to obtain employment. Likewise, he advocated termination of support for the younger child, as plaintiff had not complied with the court's order to supply documentation regarding the educational pursuits. Additionally, defendant learned the child transferred only ten credits to CCC from his previous college semesters and, while attending CCC, earned only six credits in Spring 2008, nine credits in Fall 2008, and no credits in Spring 2009. As of May 28, 2009, the younger child's grade point average was 1.111. Plaintiff rejected defendant's position regarding their disabled child and maintained she had no idea the younger child had not passed the courses for which he registered. She insisted both children remained dependent and required support. In its June 26, 2009 order, the court granted defendant's application to emancipate the children and terminated his support obligation for the older child effective October 23, 2008, the filing date of his initial application, and for the younger child effective December 31, 2007, the date the child was last a full-time student. Defendant received a total credit for support and tuition payments made after these dates of emancipation totaling $18,517.79, and plaintiff was ordered to repay defendant through a $125 per week reduction in alimony.

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In her motion for reconsideration, plaintiff argued the court needed to conduct a plenary hearing to review the facts and circumstances with respect to the children before declaring them emancipated. She re-affirmed her ignorance of the younger child's lack of academic achievement and argued both parents should equally share in the loss, as she received no benefit from tuition payments made to CCC. Further, plaintiff asserted she should be permitted to show the financial hardship resulting from the order, averring both children continued to reside with her and remained dependent on her for their support. The trial judge denied the motion. This appeal ensued. II. We set forth the standards governing the limited scope of our review. Ordinarily, a trial court's findings are "not disturbed unless 'they are so wholly unsupportable as to result in a denial of justice[.]'" Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)); Roe v. Roe, 253 N.J. Super. 418, 432 (App. Div. 1992). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms, supra, 65 N.J. at 484). 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.'" Beck v. Beck, 86 N.J. 480, 496 (1981) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Family Part factfinding receives particular deference because of the family courts' special jurisdiction and expertise in family matters and we give "due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters." Martindell v. Martindell, 21 N.J. 341, 355 (1956); see also Rolnick v. Rolnick, 262 N.J. Super. 343, 359 (App. Div. 1993). If the trial judge's conclusions are evidentially supported, we accept them. Cesare, supra, 154 N.J. at 412. 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." Division of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation 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 quotation omitted); Division of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). Finally, we note a "trial judge's findings are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." Division of Youth & Family Servs. v. Z.P.R., 351 N.J.

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Super. 427, 434 (App. Div. 2002) (citing Manalapan Realty, L.P. v. Tp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995)). Thus, we are not bound by "[a] trial court's interpretation of the law" and do not defer to legal consequences drawn from established facts. Manalapan Realty, supra, 140 N.J. at 378. Turning to the central issue presented, emancipation is "the conclusion of the fundamental dependent relationship between parent and child[.]" Dolce v. Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006). The examination of whether a child is emancipated is fact-sensitive. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982); Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997). "[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, supra, 304 N.J. Super. at 308 (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)). Emancipation does not occur automatically by reason of the dependent child reaching the age of majority, now eighteen, and in fact, "need not occur at any particular age[;]" however, the fact that a child reaches the age of majority establishes "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)); Patetta v. Patetta, 358 N.J. Super. 90, 92 (App. Div. 2003); Limpert v. Limpert, 119 N.J. Super. 438, 440 (App. Div. 1972). See also 389 N.J. Super. 200, 207 (App. Div. 2006) (holding "retroactive modification of child support is permitted based upon a court's declaration that a child had been emancipated on a date certain"), certif. denied, 192 N.J. 295 (2007); Bowens v. Bowens, 286 N.J. Super. 70, 73 (App. Div. 1995) (holding a duty to support is terminated at emancipation, obviating any judicial obligation to enforce payment); Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995) (stating "[w]here there is no longer a duty of support by virtue of a judicial declaration of emancipation, no child support can become due"). New Jersey law recognizes specific instances necessitating a parent's continuing obligation to provide support for a child past the age of majority. One instance recognized by the Legislature addresses special needs children, incapable of self-sufficiency due to disability. 100 N.J. Super. 107, 119-20 (App. Div. 1968) (suggesting parent is responsible to support an adult child, disabled as a minor, to avoid the child becoming a public charge). Another well-established instance requires continued support for a child over age eighteen enrolled in a fulltime educational program. 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"); Newburgh, supra, 88 N.J. at 543 (stating "the privilege of parenthood carries with it the duty to assure a necessary education for children[,]" requiring the continuation of support); Khalaf v. Khalaf, 58 N.J.

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63, 71-72 (1971); Patetta, supra, 358 N.J. Super. at 94 (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"); L.D. v. K.D., 315 N.J. Super. 71, 77 (Ch. Div. 1998) (holding financially unemancipated nineteen year-old child remained in need of support while she completed her residential substance abuse treatment program and earned her GED); Limpert, supra, 119 N.J. Super. at 442-43 (directing continued child payment for twenty-year-old full-time undergraduate student). With these principles in mind, we examine the issues presented by plaintiff on appeal and turn to the particular circumstances of this case. Because the bases of emancipation differ, we separately address the arguments advanced on behalf of each child. III. A. Regarding the older child, plaintiff suggests the weight of the evidence clearly demonstrated the older child's long-term disability, for which she continues to pursue Social Security benefits and which renders the child unable to obtain employment. We conclude the argument lacks sufficient merit to warrant extended discussion in our opinion. R. 2:11-3(e)(1)(E). We add these brief comments. As the moving party requesting support, plaintiff carried the burden of proof. Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001). The proofs she supplied describe the child's condition and suggest it may cause "a substantial impediment to employment." Additionally, the older child was meeting with the DVRS for vocational planning and rehabilitation as necessary "to obtain and maintain employment." These proofs do not evince the child's inability to obtain or sustain full-time employment. Plaintiff was given ample opportunity to obtain an expert opinion to sustain her burden. She did not. This failure to produce evidence of the child's disability defeats the application for support and no error results. We conclude the court properly granted defendant's motion terminating child support, effective the date he initiated the emancipation request. Addressing the parties' younger child, plaintiff suggests she had no idea the child was failing and not attending classes. Consequently, she and defendant were "economic victims of [the child's] deception." Additionally, she suggests the younger child has not abandoned achievement of a college degree, and although his past lackluster performance caused a "brief hiatus" in reaching this goal, support should continue until he achieves success.
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Alternatively, she urges equitable considerations necessitate waiver of repayment caused by the retroactive emancipation because she was not unjustly enriched. Because defendant's child support payments actually were used for the child's support, and she too paid her share to CCC, she states it is "unfair[]" to force her to reimburse defendant, as well as "bear one hundred percent (100%) responsibility for [the child's] tuition," which she "paid in good faith[.]" Plaintiff emphasizes the order unduly penalizes her and the court erred in denying her request for an evidentiary hearing to determine whether and to what extent she must repay defendant. Finally, she suggests the repayment of these sums equates to a reduction in alimony that impacts her standard of living. We are not persuaded. This matter is typical of most in that the child does not reside with parent advocating emancipation. Also characteristic of post-judgment emancipation matters is the noncustodial parent's reliance on the fact the child has reached the age of majority because he or she lacks corroboration of the child's full-time student status. As the Supreme Court has confirmed, "[a]lthough there is no fixed age when emancipation occurs, N.J.S.A. 9:17B-3 provides that when a person reaches eighteen years of age, he or she shall be deemed to be an adult." Gac, supra, 186 N.J. at 542. Thus, proof of majority satisfies a non-custodial parent's prima facie showing, shifting the burden to rebut the statutory presumption of emancipation to the custodial parent. See Filippone, supra, 304 N.J. Super. at 308 (stating statutory presumption is rebuttable). To prevail on a request for dependent support, the custodial parent must prove the child remains a full-time student. Limpert, supra, 119 N.J. Super. at 442-43. Addressing the quantum of necessary proofs, while reinforcing that any determination of emancipation remains fact-sensitive, Dolce, supra, 383 N.J. Super. at 17, we conclude that mere registration for post-secondary education does not defeat a motion for emancipation. What is required is registration for a full-time class load coupled with efforts designed to satisfy the degree or certification requirements of the educational institution. Implicit in this standard is that a child must act in good faith: the student must attend class and comply with other course requirements in an effort to satisfactorily pass. See Filippone, supra, 304 N.J. Super. at 311-12 (holding child pursuing post-secondary education may no longer be dependent when the "child [is] unable to perform adequately in his academic program"). Here, plaintiff first advanced the position that the younger child required continued child support as a fulltime student attending CCC. Yet, the twenty-year-old child, who was past the age of majority, had performed poorly while attending school in Michigan, and fared no better at CCC. The facts unmistakably reveal he lacked "commitment to and aptitude . . . for the requested education[,]" Newburgh, supra, 88 N.J. at 545, making
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emancipation proper. Filippone, supra, 304 N.J. Super. at 311-12. The record substantially supports the motion judge's rejection of plaintiff's suggestion that reimbursement was unfair since her acceptance of the child's assertion of privacy with respect to his grades left her equally blameless and defendant's continued payment was solely caused by the child's deceit. Applying the burden shifting analysis stated above, plaintiff's premise is faulty. Moreover, as the sole custodial parent following divorce, plaintiff was the one to whom the child returned when he left his studies in Michigan. In her parental role, plaintiff saw the child daily and cannot abrogate that responsibility by suggesting she relied on the child's statements of satisfactory academic success. Plaintiff stood in the most advantageous position to know whether the child attended class, purchased books, studied or prepared papers. Cf. Lepis v. Lepis, 83 N.J. 139, 151 (1980) (noting a custodial parent is in intimate contact with the child and is in a better position than the non-custodial parent to notice an increase in the child's needs). The child's assertion of his right to privacy was perfectly legitimate. However, such conduct is an exercise of independence representing a rejection of the necessary parental "sphere of influence," Filippone, 304 N.J. Super. at 308 (quotation omitted), and is a consideration impacting the overall facts and circumstances determining emancipation. More important, plaintiff filed a motion for increased support and should have garnered the proofs that the child was a full-time student. This need was highlighted upon receipt of defendant's cross-motion unequivocally challenging the child's full-time student status. Plaintiff took no action for over nine months. Knowing her entitlement to continued receipt of child support was premised on the child's dependent academic status, the acceptance of the child's assertion of privacy is simply implausible. B. Here, the trial court decided the emancipation issue solely on the parties' certifications. Plaintiff asserts a plenary hearing was needed to resolve the question of emancipation, the amount of any reimbursement, and the manner of necessary repayment. She proffers that "[r]ather than relying upon dueling and contradictory certifications . . . the trial court should have conducted a plenary hearing, [to] . . . test the parties' veracity in the crucible of oral examination under oath." A "plenary hearing is required 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
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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 that plenary hearings are required when there are "contested issues of material fact on the basis of conflicting affidavits"). However, when material facts are not in dispute, equity does not demand an evidentiary hearing. Lepis, supra, 83 N.J. at 159. We conclude this dispute 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). No benefit would result from a hearing to determine the extent of the parties' son's disability or whether he has the capability to obtain or maintain gainful employment. Plaintiff was given one year to present documents to establish the children's continued dependency; she could not. Therefore, the trial court appropriately exercised its discretion in denying plaintiff's request for a plenary hearing. In sum, there is "no reason to vacate the . . . order and compel a plenary hearing that would only disrupt the lives of the parties and their children and be very unlikely to lead to a different outcome." Barblock v. Barblock, 383 N.J. Super. 114, 127 (App. Div.), certif. denied, 187 N.J. 81 (2006).

Affirmed See N.J.S.A. 9:17B-3 (stating with limited exceptions that "every person 18 or more years of age shall in all other matters and for all other purposes be deemed to be an adult"). N.J.S.A. 2A:17-56.23a provides in pertinent part: No payment or installment of an order for child support, or those portions of an order which are allocated for child support . . . shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed either directly or through the appropriate agent. "[T]he Legislature intends to assure adequate and enforceable support orders for dependents, and to avert the need for public maintenance." Monmouth County Div. of Soc. Servs. ex. rel Div. of Youth & Family Servs. v. C.R., 316 N.J. Super. 600, 612 (Ch. Div. 1998); see, e.g., N.J.S.A. 44:10-2 (providing, where possible, the taxpayers must be protected from bearing the burden of a debt owed and payable by a private individual). Our determination must not be misconstrued as a pronouncement that college students must pass every class taken. On the contrary, each student experiences his or her own unique adjustment to post-secondary schooling, which must always be considered in any review of the totality of the circumstances. (continued) (continued) 22 A-0386-09T3

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