LANA WEISER v. ROBERT WEISER

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Superior Court of New Jersey, Appellate Division.

LANA WEISER, Plaintiff–Respondent, v. ROBERT WEISER, Defendant–Appellant.

DOCKET NO. A–3171–12T1

Decided: April 3, 2014

Before Judges Simonelli and Fasciale. Gruber, Colabella & Liuzza, attorneys for appellant (Chris H. Colabella and Kristen C. Montella, on the briefs). Lana Weiser, respondent pro se.

In this post-judgment matrimonial matter, defendant Robert Weiser appeals from the November 9, 2012 Family Part order, which denied his motion to declare his children emancipated, and from the February 8, 2013 order, which denied his motion for reconsideration.   We reverse and remand for further proceedings.

These are the pertinent facts.   Defendant and plaintiff Lana Weiser were married in 1987, and divorced in 2006.   They have two children, R.W., born in 1988, and L.W., born in 1992.1  Their Separation and Property Settlement Agreement (PSA), which was incorporated into their final judgment of divorce, required defendant to pay child support until the children were emancipated.   The PSA defined “emancipation,” in pertinent part, as “[r]eaching the age of eighteen (18) years or graduation from college, which ever last occurs;  if the children remain at home while attending college, the child support shall remain unchanged.”   The PSA also required defendant to pay “for the children's undergraduate college education after taking [into] account all scholarships, grants, loans and aid,” contingent upon his consent to the college to be attended.

In October 2012, defendant filed a motion, seeking an order declaring the children, then ages twenty-five and twenty, respectively, emancipated.   Plaintiff opposed the motion.   The parties' certifications raised factual disputes as to whether the children were attending college or had moved beyond the sphere of influence.   The trial judge considered the motion on the conflicting certifications without conducting a plenary hearing.   This was error.

A child is emancipated when he or she “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) Ibid. (quoting Bishop v. Bishop, 287 N.J.Super. 593, 598 (Ch. Div.1995)).   Whether a child had moved beyond the sphere of influence is a fact-sensitive inquiry.  Dolce v. Dolce, 383 N.J.Super. 11, 17 (App.Div.2006).   The determination requires “a critical evaluation of the prevailing circumstances including the child's need[s], interests, and independent resources, the family's reasonable expectations, and the parties' financial ability, among other things.”  Id. at 18.

Here, the judge decided the emancipation issue solely on the parties' certifications.   With the parties having presented conflicting certifications, we conclude that the judge mistakenly decided the issue without the benefit of a plenary hearing to determine the whether the children were attending college or had moved beyond the sphere of influence.   See Conforti v. Guliadis, 128 N.J. 318, 322 (1992) (holding that a plenary hearing is required when there are “contested issues of material fact on the basis of conflicting affidavits”);  Wilke v. Culp, 196 N.J.Super. 487, 501 (App.Div.1984) (holding that “[i]t is basic that a case should not be decided merely on the basis of conflicting affidavits, or an inadequate record”), certif. denied, 99 N.J. 243 (1985).   Accordingly, we reverse and remand for the purpose of conducting a plenary hearing to determine whether the children should be declared emancipated.

Reversed and remanded for further proceedings consistent with this opinion.   We do not retain jurisdiction.

FOOTNOTES

1.  FN1. We use initials to identify the children to protect their identities.

PER CURIAM

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