ALEXANDER V. ALEXANDER A-5593-09T2 June 16, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5593-09T2

EVERALD ALEXANDER,

Plaintiff-Appellant,

v.

SANDRA ALEXANDER,

Defendant-Respondent.

Submitted May 4, 2011 – Decided June 16, 2011

Before Judges Axelrad and Lihotz.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1740-00.

Koulikourdis and Associates, attorneys for appellant (Sasha C. Intriago, on the brief).

Sandra Alexander, respondent pro se.

PER CURIAM

In this post-judgment matrimonial matter, plaintiff Everald Alexander successfully obtained an order emancipating his twenty-two-year-old son and terminating his obligation to provide child support. When defendant Sandra Alexander received a copy of the April 21, 2010 order, she moved for reconsideration asserting the parties' son was a full-time student attending Bergen Community College. The Family Part judge granted defendant's request for reconsideration and reinstated child support for the unemancipated full-time college student. Plaintiff appeals from this order. We affirm.

The parties were divorced on October 10, 2000. Defendant was designated the residential custodian of the parties' two children. In the fall of 2007, their son commenced the pursuit of an associate's degree from Bergen Community College (Bergen). Plaintiff moved for emancipation in August 2009. Although the court denied plaintiff's motion without prejudice, the Family Part ordered the child would be deemed emancipated if he failed to resume full-time studies by January 2010. In March 2010, plaintiff filed his second request to emancipate his son, who he maintained had not earned sufficient credits to be considered a full-time student. The unopposed motion was granted. The court terminated plaintiff's obligation to pay child support as of the date fixed for emancipation, March 10, 2010.

Defendant moved for reconsideration, asserting she had not received plaintiff's motion papers because of a change of address and maintained the parties' son was attending college on a full-time basis. In her reply to plaintiff's opposition, defendant provided the child's unofficial transcript showing he had taken additional summer classes toward obtaining his degree and also successfully completed fifteen credits in the fall 2009 semester and thirteen credits in spring 2010 semester. Defendant also supplied the child's registration for 2010 summer classes and an application to enroll in a four-year degree program at William Patterson University.

Judge Lisa Perez Friscia granted defendant's motion for reconsideration. The judge determined defendant did not receive or respond to plaintiff's motion for emancipation because he mailed the motion papers to defendant's former address. Further, examining the child's updated schedule of completed courses, the judge determined that on the date of the prior order, March 10, 2010, he was a full-time student "clearly making efforts to complete his degree" and that emancipation had been improvidently granted. The judge found the child's best interests required that plaintiff's payment of child support continue, conditioned on the child's satisfactory completion of a full-time course load for each successive semester. See Van Brunt v. Van Brunt, 419 N.J. Super. 327, 329 (Ch. Div. 2010) ("requiring a student to produce proof of college attendance, course credits and grades as a condition for ongoing child support and college contribution does not violate the student's rights to privacy" and that "the student and the custodial parent each have a responsibility and obligation to make certain that the non-custodial parent is provided with ongoing proof of the student's college enrollment, course credits and grades"). Plaintiff's appeal ensued.

Our review of a trial judge's factfinding is limited: any such findings will be binding on appeal "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998). When confronted with a claim that the trial court erred in its determination of the facts, we consider "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record.'" 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," Cesare, supra, 154 N.J. at 413, and will be disturbed only upon a showing that they are "manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence." Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)) (internal quotation marks omitted).

When a reviewing court satisfies itself of the 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, supra, 86 N.J. at 496 (quoting Johnson, supra, 42 N.J. at 162). Accordingly, if the trial judge's conclusions are evidentially supported, we accept them. Cesare, supra, 154 N.J. at 412. On the other hand, we owe no deference to a court's application of the governing law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). With these principles in mind, we review the arguments offered by the parties.

Plaintiff argues the court erred in not emancipating the parties' son and eliminating his support obligation. The issue of whether a child is emancipated with the correlative termination of the right to parental support, is fact-sensitive, Newburgh v. Arrigo, 88 N.J. 529, 543 (1982), requiring a critical review of all facts and circumstances surrounding the child. See N.J.S.A.9:17B-3.

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). "[E]mancipation is reached "when the fundamental dependent relationship between parent and child is concluded, the parent relinquishes the right to custody and is relieved of the burden of support, and the child is no longer entitled to support." Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997). See also L.D. v. K.D., 315 N.J. Super. 71, 75 (Ch. Div. 1998). "[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)). This determination involves a critical evaluation of the prevailing circumstances, including the child's needs, interests, and independent resources, the family's reasonable expectations, and the parties' financial ability. Newburgh, supra, 88 N.J. at 545.

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 v. Gac, 186 N.J. 535, 542 (2006). 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 the 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 v. Limpert, 119 N.J. Super. 438, 442-43 (App. Div. 1972).

We have also explained:

"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) . . . . The obligation to provide child support "is engrained into our common law, statutory, and rule-based jurisprudence." [Id.] at 39.

[Colca v. Anson, 413 N.J. Super. 405, 414 (App. Div. 2010) (internal citations omitted).]

A well-established instance defeating a request for emancipation and requiring continued support occurs when a child is enrolled in a full-time educational program. See Gac, supra, 186 N.J. at 542 ("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").

Plaintiff argues his son had not achieved full-time student status until the fall 2009 semester. While we agree that during the prior four semesters, the child had not completed at least twelve credit hours, he did complete two summer classes in 2009, achieving twenty-five credit hours in the 2008-2009 academic year. This was followed by the fulfillment of fifteen credit hours in the fall 2009 semester and thirteen in the spring 2010 semester.

Proof of full-time student status requires 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 a child pursuing post-secondary education may no longer be dependent when the "child [is] unable to perform adequately in his academic program").¹

In rejecting plaintiff's argument that the child had not accomplished the requirements of a full-time student, Judge Friscia examined the totality of the circumstances presented. She identified the child's slow start during the 2007-2008 academic year, resulting in part-time student status based on the completion of courses. However, for the 2008-2009 and 2009-2010 academic years, the parties' son passed courses garnering twenty-five and twenty-eight credit hours respectively. The court concluded sufficient facts unmistakably revealed the child presented a "commitment to and aptitude . . . for the requested education[,]" Newburgh, supra, 88 N.J. at 545, making emancipation improper. Filippone, supra, 304 N.J. Super. at 311-12.

We find no flaw in Judge Friscia's analysis and conclude the court properly determined plaintiff should not be relieved of his obligation to pay child support as "the privilege of parenthood carries with it the duty to assure a necessary education for children." Newburgh, supra, 88 N.J. at 543.

Plaintiff next suggests the court erred in relying on an unauthenticated uncertified college transcript, as the document is inadmissible hearsay. We reject this contention.

Principally we note plaintiff never raised this objection before the Family Part. "It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer,58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). Nevertheless, for completeness we provide these brief remarks supporting the rejection of plaintiff's contention.

"As a general rule, admission or exclusion of proffered evidence is within the discretion of the trial judge whose ruling is not disturbed unless there is a clear abuse of discretion." Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991);see also Purdy v. Nationwide Mut. Ins. Co., 184 N.J. Super. 123, 130 (App. Div. 1982). We give "substantial deference" to the trial judge's evidentiary rulings. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999) (citations omitted), certif. denied, 163 N.J. 79 (2000). Evidential determinations should not be overturned on appeal "'unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide off the mark that a manifest denial of justice resulted.'" Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (quoting State v. Carter, 91 N.J. 86, 106 (1982)).

Although we agree with plaintiff that the copy of the unofficial transcript is hearsay, which is generally inadmissible,N.J.R.E. 801(c), we note certain defined exceptions allow the review of hearsay evidence. N.J.R.E. 802. Specifically,

[u]nder the business records exception to the hearsay rule[, N.J.R.E. 803(c)(6),] a party seeking to admit a hearsay statement pursuant to this rule must demonstrate that "the writing [was] made in the regular course of business," the writing was "prepared within a short time of the act, condition or event being described," and "the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence."

N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 347 (2010) (quoting State v. Matulewicz, 101 N.J. 27, 29 (1985)).]

We can infer from the Family Part Judge's determination that she accepted the document as originating from Bergen in the regular course of its business activities, which contemporaneously reflected the college's records of the son's academic status. The circumstances supported the unofficial transcript's trustworthiness and reliability. The court's reliance upon the document was not an abuse of its considered discretion.

Affirmed.

1 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.

WEAVER V. WEAVER A-2901-09T1 May 26, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2901-09T1

MEHRVASH WEAVER,

Plaintiff-Respondent,

v.

RONALD WEAVER,

Defendant-Appellant.

May 26, 2011

Submitted April 6, 2011 – Decided

Before Judges Cuff and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-806-00.

Hollander, Strelzik, Pasculli, Hinkes, Vandenberg & Hontz, L.L.C., attorneys for appellant (Alan Strelzik, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant Ronald Weaver appeals from the January 12, 2010 Family Part order denying his motion to terminate permanent alimony based on changed circumstances, and granting the cross-motion of plaintiff Mehrvash Weaver to temporarily modify alimony. We affirm.

The parties were married on April 20, 1979, and divorced on December 12, 2002. Their Property Settlement Agreement (PSA), which was incorporated into the final judgment of divorce, required defendant to pay $2900 per month for permanent monthly alimony for thirty-six months and $2800 per month thereafter. The parties based the alimony amount on plaintiff having and anticipating no gross earned income in excess of $10,000 per year and defendant earning a yearly $90,000 gross income with eligibility for bonus income.¹ At the time of the divorce, plaintiff was sixty-two years old and defendant was fifty-two.

The PSA also contained the following provisions:

6. Husband's alimony obligation as set forth herein shall continue until such time as either party dies, Wife remarries and/or an Order of the Superior Court of New Jersey suspends or terminates alimony consistent with the existing New Jersey case and statutory law respecting the issue of alimony.

. . . .

9. Husband and Wife mutually waive any rights he/she may have under the Lepis decision to later argue that such subsequent change in circumstances rendered the amount of alimony either unfair or inequitable.

10. Husband and Wife each acknowledge that the case of Crews v. Crews has been explained to them and further acknowledge that neither will be able to maintain a lifestyle reasonably comparable to that which they enjoyed during their marriage. Notwithstanding that fact, each party is willing to accept the terms of the within Agreement and waive any right either may have to make a future application to increase support based on lifestyle.

The parties equally divided approximately $200,000 from the net proceeds of the sale of the marital home, and plaintiff received an additional $39,000 from defendant's share. The PSA also required the sale of a timeshare property located in Pennsylvania and the equal division of the net proceeds between the parties.² Plaintiff also received $213,000 from defendant's retirement benefits. Thus, plaintiff received approximately $352,000 in equitable distribution, not including the Pennsylvania timeshare, which had not yet been sold.

Defendant became unemployed in October 2007. He received $26,085 in unemployment benefits in 2008. He claimed he began depleting other assets to pay plaintiff's alimony. In December 2008, defendant filed a motion to modify alimony. By order dated February 6, 2009, the trial judge temporarily reduced alimony to $1400 monthly, effective February 6, 2009, and ordered its reinstatement to $2800 monthly when defendant obtained employment.

In August 2009, defendant obtained employment with an annual salary of $60,000. Thereafter, pursuant to the February 6, 2009 order, the $2800 monthly alimony payment was reinstated. Relying on paragraph 6 of the PSA, in October 2009, defendant filed a motion to terminate alimony. He argued his financial circumstances had changed because his new annual income is $60,000, or less than one-half of his previous income, and his net worth was $88,954. Conversely, plaintiff's circumstances had improved "dramatically" in that she owns a home worth $250,000 with no mortgage, and has a $250,000 retirement account, making her net worth $500,000.

Plaintiff filed a cross-motion to temporarily modify alimony to $1867 monthly, effective the date of the filing of defendant's motion and until he obtained employment with a minimum $90,000 annual salary. Plaintiff certified that despite her entitlement to a greater amount of alimony, she agreed to the lesser amount because it would be permanent, that is, until she died or remarried. Also, she did not seek an increase in alimony when defendant's gross income increased to $145,656 in 2007; she was almost seventy years old, in poor health, had never worked, and relied exclusively on the alimony; and she used her portion of equitable distribution to purchase her home in Maryland without a mortgage.

The trial judge denied defendant's motion and granted plaintiff's cross-motion. The judge found that pursuant to provision 9 of the PSA, defendant waived his right pursuant to Lepis v. Lepis, 83 N.J. 139 (1980), to seek a termination of alimony based on changed circumstances. Addressing the merits, the judge found that defendant's reduced income did not warrant termination of alimony and plaintiff's cross-motion to temporarily modify alimony was an equitable and reasonable solution. Accordingly, the judge temporarily suspended defendant's alimony obligation by one-third until he obtains employment earning a minimum of $90,000 annually, effective October 28, 2009. This appeal followed.

On appeal, defendant contends the trial judge erred in failing to terminate his alimony obligation because he demonstrated changed circumstances based on his reduced income, two years of unemployment that required him to deplete his assets, and plaintiff's better economic situation. Defendant also contends the judge erred in failing to order discovery and a plenary hearing. We disagree with both contentions.

"Settlement agreements in matrimonial matters, being 'essentially consensual and voluntary in character, . . . [are] entitled to considerable weight with respect to their validity and enforceability' in equity, provided they are fair and just." Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006) (alteration in original) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)); see also Lepis, supra, 83 N.J. at 148-49; Berkowitz v. Berkowitz, 55 N.J. 564, 569 (1970); Schlemm v. Schlemm, 31 N.J. 557, 581-82 (1960). "'[S]eparation agreements . . . are generally favored by the courts as a peaceful means of terminating marital strife and discord so long as they are not against public policy.'"Dolce, supra, 383 N.J. Super. at 20 (alteration in original) (quoting Konzelman v. Konzelman, 158 N.J. 185, 194 (1999)); see also Weishaus v. Weishaus, 180 N.J. 131, 143 (2004). "And while incorporation of a PSA into a divorce decree does not render it immutable, nor its terms solely governed by contract law, nevertheless, if found to be fair and just, it is specifically enforceable in equity." Eaton v. Grau, 368 N.J. Super. 215, 224 (App. Div. 2004) (citations omitted).

"[G]iven the inherent equitable powers of the Family Part, support orders . . . 'may be revised and altered by the court from time to time as circumstances may require,' including an order resulting from [a PSA]." Dolce, supra, 383 N.J. Super. at 18 (quoting N.J.S.A. 2A:34-23); see also Glass v. Glass, 366 N.J. Super. 357, 370 (App. Div.) (indicating that even if the parties enter an agreement about alimony, a former spouse may seek judicial review or modification of the spousal support based on a showing of changed circumstances), certif. denied, 180 N.J. 354(2004). "[A] PSA is 'subject to amendment by the court when changed circumstances make its enforcement inequitable[.]'" Heller-Loren v. Apuzzio, 371 N.J. Super. 518, 535 (App. Div. 2004) (quoting Brawer v. Brawer, 329 N.J. Super. 273, 284 (App. Div.), certif. denied, 165 N.J. 138 (2000)); see also Lepis, supra, 83 N.J. at 148-49. However, the party challenging the validity and enforceability of a PSA must "show that its terms, in light of changed circumstances, are unfair and unjust." Petersen, supra, 85 N.J. at 644. "[T]hat party must demonstrate that changed circumstances have substantially" impaired the ability to support himself or herself." Lepis, supra, 83 N.J. at 157.

Thus, here, the court clearly maintained the authority to determine whether, in light of changed circumstances, enforcement of the waiver provision in the PSA is unfair and inequitable. In addition, defendant bore the burden of showing that changed circumstances have substantially impaired his ability to support himself.

Defendant has failed to establish that the waiver provision is unfair and inequitable and his reduced income has "substantially impaired" his ability to support himself. Defendant still has a $60,000 annual income and an $88,954 net worth. Unlike, plaintiff, he is working and not at the normal retirement age, and thus, has time to recoup assets.

Defendant has also failed to establish that plaintiff's economic circumstances have improved so "dramatically" that a termination of alimony is warranted. Plaintiff's investment of her share of equitable distribution in a home and retirement account allowed her economic position relative to defendant's to improve slightly. Accordingly, because there is no sufficient evidence of changed circumstances, discovery and a plenary hearing were not required. See Palmieri v. Palmieri, 388 N.J. Super. 562, 564 (App. Div. 2006); Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976).

Affirmed.

1 Defendant's annual gross income at the time of the divorce was approximately $140,000.

2 In his 2002 Case Information Statement, defendant valued the timeshare at $34,000. The record does not disclose whether it was ever sold.

Numon v. Numon A-0556-10T1 May 20, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0556-10T1

RONALD and JUDITH NUMON,

Plaintiffs-Appellants,

v.

MICHAEL NUMON,

Defendant-Respondent.

Argued April 5, 2011 – Decided May 20, 2011

Before Judges Parrillo, Yannotti and Roe.

On appeal from Superior Court of New Jersey, Chancery

Division, Family Part, Warren County, Docket No. FD-

21-465-10.

Donald F. Scholl, Jr., argued the cause for appellants (Scholl, Whittlesey & Gruenberg, LLC, attorneys;

Mr. Scholl, on the brief).

Respondent has not filed a brief.

PER CURIAM

Plaintiffs Ronald and Judith Numon, husband and wife, appeal from a September 16, 2010 order of the Family Part dismissing their verified complaint seeking to emancipate their twenty-one-year-old son, defendant Michael Numon, who consented to the relief sought. For the following reasons, we reverse and remand.

According to plaintiffs' June 4, 2010 verified complaint for emancipation, their son was born in April, 1989 and presently attends Colorado State University. He resides, is registered to vote, and is licensed to operate a motor vehicle in Colorado. Michael pays for his own automobile insurance and his parents do not claim him as a deduction for income tax purposes. Apparently, Michael wishes to apply for financial aid as an in-state resident of Colorado and the State of Colorado supposedly requires a court order of emancipation to process the application.Compare N.J.A.C. 9A:5-1.1(f) (establishing a presumption that dependent students with parents domiciled outside of the State are non-domiciliaries for tuition purposes). To that end, in support of their emancipation complaint, plaintiffs attached a proposed consent order, signed by Michael and notarized, agreeing to the relief sought, for the court's execution. Nearly four months later, on September 16, 2010, the Family Part judge summarily denied the request and dismissed plaintiffs' complaint. In an accompanying statement of reasons, the judge concluded:

A custodial parent does not have a right to waive child support because said support duty runs to the supported child — not to the custodial parent. Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993). "Even an explicit waiver agreement cannot vitiate a child's right to support." Gotlib v. Gotlib, 399 N.J. Super. 295, 305 (App. Div. 2008). . . . Here, plaintiffs are still married to each other and there is no pending complaint for divorce. Irrespective of the marital status, both parents share the obligation to support the child.Pascale v. Pascale, 140 N.J. 583, 591 (1995). Furthermore, plaintiffs fail to show that defendant meets the requirements for emancipation.

. . . .

. . . This Court finds that a motor vehicle license, proof that defendant is registered to vote, or that he pays his own automobile insurance does not meet the burden of showing that the child has moved beyond the sphere of influence of his parents. Plaintiffs fail to show that the child has moved beyond the sphere of influence of his parents. For example, plaintiffs do not show how long defendant has lived apart from his parents, whether he is employed, how he is paying for his college tuition, whether he owns or rents a home, and how he pays for same.

On appeal, plaintiffs argue that the court erred in summarily denying the relief. We agree.

Although the Family Part judge correctly noted that the right to child support belongs to the child and may not be waived by a custodial parent, Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993) (holding that the parents' agreement in a consent order that support would end when their daughter turned eighteen did not waive the daughter's right to support beyond her eighteenth birthday), we discern no principle of law precluding parents and their child over the age of majority from consensually agreeing to the latter's emancipation. The issue arises in this case because the parties, in addition, seek judicial sanction of their agreement. Yet given the force and effect of a judicial decree of emancipation — in this instance, extraterritorial in nature — a court is not bound by the mutual arrangement struck simply because all parties are united in their determination to declare a child emancipated.

Somewhat analogously, "a court cannot hear a case as to which it lacks subject matter jurisdiction even though all parties thereto desire an adjudication on the merits." Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 65 (1978). Nor will a court issue an advisory opinion where there is no genuine adversity or dispute between the parties, N.J. Ass'n for Retarded Citizens, Inc. v. N.J. Dep't of Human Servs., 89 N.J. 234, 241 (1982), or where the controversy has become moot. Bd. of Educ. of Sea Isle City v. Kennedy, 196 N.J. 1, 18 (2008). Moreover, an order consented to by the parties is not appealable. Winberry v. Salisbury, 5 N.J. 240, 255 (1950).

Although jurisdiction is not here in issue and the matter appears ripe for resolution, we are of the view that the court was under no obligation to execute the proposed consent order merely because all the parties mutually agreed to it. Indeed, the court's withholding of approval was all the more appropriate in this instance given its expressed reservation over the sufficiency of proof of the son's emancipation. On this score, by way of example, the court detailed additional information, not contained within the four corners of plaintiffs' verified complaint, that would be necessary in determining whether the son has, in fact, moved beyond his parents' sphere of influence, including, most significantly, his financial circumstances. Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (noting that the essential inquiry of emancipation is whether the child has moved "beyond the sphere of influence and responsibility exercised by a parent and obtains independent status of his or her own"). After all, a court being asked to, in effect, adjudicate one's legal status as emancipated, has a duty to satisfy itself that a factual basis for such a determination exists, independent of the parties' agreement.

That said, given the perceived deficiencies of proof, the preferred judicial course would have been to afford plaintiffs the opportunity to prove their allegations rather than summarily dismiss their complaint without a hearing. This procedure was especially warranted in light of plaintiffs' affirmative offer to present testimony and other proof in support of their emancipation application, including the voluntariness of Michael's consent. While the verified complaint in this instance may not have sufficed, in and of itself, to establish the twenty-one-year-old son's emancipation, it nevertheless met the requisites for notice pleading under our court rules to have allowed the parties the opportunity to be fully heard prior to a final disposition of the matter. Accordingly, we vacate the order of dismissal and remand the matter to the Family Part to conduct proceedings it deems necessary and appropriate to properly adjudicate the issue of emancipation.

Reversed and remanded.

M.A. V. D.M.A. A-0081-10T1 May 12, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0081-10T1

M.A.,

Plaintiff-Respondent/

Cross-Appellant,

v.

D.M.A.,

Defendant-Appellant/

Cross-Respondent.

Argued March 7, 2011 – Decided May 12, 2011

Before Judges A.A. Rodríguez and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-001343-10.

Marcy M. McMann argued the cause for appellant/cross-respondent (Stephen S. Weinstein, P.C., attorney; Ms. McMann, on the brief.)

Clifford J. Weininger argued the cause for respondent/cross-appellant (Mr. Weininger, attorney; Joseph J. Fritzen, on the brief).

PER CURIAM

Defendant appeals from the July 30, 2010 domestic violence final restraining order (FRO) issued against him in favor of plaintiff. Plaintiff cross-appeals from the judge's denial of her request for counsel fees and costs. We reverse the FRO, thereby rendering the cross-appeal moot.

At the time of the FRO hearing, plaintiff was sixteen and defendant was eighteen-and-a-half years old. They had been in a "boyfriend/girlfriend relationship" for "about a year." Plaintiff testified that she would frequently accompany defendant when he pawned jewelry that he told her he had stolen from his grandmother. She was aware that defendant "had a drug problem" and knew that he spent the money on Oxycontin, as she had seen him "high" on that drug "many times." At some point, plaintiff became aware that defendant was stealing jewelry from her home and pawning it.

On June 5, 2010, defendant was at plaintiff's home "just hanging out." When defendant attempted to pull plaintiff's dog out from under a desk, the dog bit him twice. Plaintiff "immediately grabbed [her] dog . . . and got him away from everything because [she] didn't know what was going on." Defendant was upset and told plaintiff and her mother that he "want[ed] to kill [the] f-ing dog."

Plaintiff spent that night at defendant's house; she came home briefly the following morning and saw her dog, who seemed "fine again running around the house." Plaintiff then left with her mother to spend the day at her grandmother's home. Her mother dropped plaintiff at defendant's house around 8:30 p.m.; her mother went home and then called plaintiff "hysterically screaming and crying that the dog [wa]s dead." Defendant then drove plaintiff home. About two weeks later, defendant admitted that he "beat" plaintiff's dog to death.

Plaintiff did not tell anyone about defendant killing her dog at that time because she "believed that these were just issues [defendant] had . . . that he needed to deal with and he needed help with them. And . . . [she] cared so much about him at the time."

On or about June 18, 2010, the parties were in an attic at defendant's house smoking a cigarette. Plaintiff "believe[d] [defendant] was high at the time." Defendant

lit the lighter and he held it lit and he said ["]you're going to remember me forever.["] [Plaintiff] had no idea that he was going to do that. [She] thought he was just saying that as in general boyfriend/girlfriend conversation.

He [held] the lighter lit for maybe a minute and . . . the metal [got] really hot. He let go of it and he jabbed it into [her] leg and [she] still ha[s] a scar[] two months later.

. . . .

[She] was really shocked at first. And [she] kind of . . . playfully . . . slapped him. But . . . after [she] showed [her] Mom and after . . . reporting everything to the [p]olice [she] realized that [it] is really dangerous to mess around with this kind of thing . . . .

On or about June 25, 2010, plaintiff was called into police headquarters to identify certain jewelry that defendant had been charged with stealing. At some point, plaintiff learned that defendant had stolen other property belonging to her parents, and she decided that she "couldn't take it anymore [sic]." On June 28, 2010, plaintiff obtained a temporary restraining order (TRO) against defendant.

Plaintiff stated that "looking back on [her] relationship with [defendant] . . . [she] ha[s] a lot of fear[.]" Because she had reported to the police that defendant stole jewelry from her home, she felt that "he's going to blame this all on [her]" and "come after [her] one day."

On cross-examination, plaintiff acknowledged that she had a close relationship with defendant's mother and communicated with her via Facebook. On June 27, 2010, plaintiff posted a message on Facebook to defendant's mother stating that the only reason she was pursuing a restraining order was because her parents were forcing her to do so. A few minutes later, plaintiff sent defendant's mother the following message:

"I'm thinking just to avoid any more s—t with my Mom that I’ll do what she wants me to do. And then like the next day or two I'll get the restraining order dropped . . . . If I can go in and drop it they won't even be notified and then everything will be okay with my Mom, and I’ll be able to see [defendant]."

She also told defendant's mother, "If I walk out of that court room saying he's not a threat to me, I'll never stop hearing it from them about how I'm basically not a member of the family any more . . . ."

In the early morning of June 28, the day plaintiff obtained her TRO, she sent a message to defendant's mother to "say good luck [to defendant] and [she] hope[s] for the best[,]" because he was "going to some interview." On June 29, plaintiff sent a message that she still loved defendant. However, she denied that she still loved him at the time of trial.

At the conclusion of plaintiff's testimony, defendant moved to dismiss the TRO, arguing that she had not established any predicate acts constituting domestic violence under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the Act). Defendant also argued that plaintiff had failed to demonstrate a current need for the protection of a final restraining order under Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). The judge denied the motion. Defendant then rested without calling any witnesses.

In his decision rendered from the bench, the judge noted at the outset that this "was a difficult case to analyze." He stated that the theft of the jewelry, the killing of plaintiff's dog and the burn with the cigarette lighter "suggest a very unhealthy situation" and that plaintiff's position that she "wants a restraining order" because she has "come to a new understanding of herself and her situation all make perfect sense." The judge "ha[d] a strong sense that somewhere, somehow there should be a way to end this unhealthy relationship."

The judge described defendant's killing of the dog as an "inappropriate and mean thing . . . to avenge himself against the dog. . . . [T]he larger portion of the motivation was that the dog bit him therefore the dog is going to get it and did." He then characterized the killing as "about as clear an act of domestic violence as there could be."

With respect to the theft of the jewelry, the judge noted that "there are many circumstances in which something like that can be done as an attack on the petitioner." He added that "the way to understand" the jewelry theft was, as plaintiff had testified, "for the purpose of funding a drug habit."

The judge opined that plaintiff "acquiesced" in the burning of her leg, which made it "harder to see that as an assault, although not impossible." He noted that "even after all of these events . . . [p]laintiff had occasion to say I still love . . . him."

The judge stated: "All that makes it difficult to accept these either individually or cumulatively as a basis for the relief." He noted, however, that plaintiff testified she has had a "change of heart" and is now afraid of defendant, and found her fear "objectively reasonable."

Regarding defendant's "intent," the judge noted that "the greater weight of the evidence is that the majority of the motivation was to accomplish those other ends I talked about drug habit [sic] and avenge [sic] against the dog." He further noted that there "seem[ed] to be an element of at least indifference to the [e]ffect on [plaintiff] and [her] family[,] [b]ut also . . . perhaps more than almost [sic] an element of control."

The judge then characterized the "thefts from the house and the killing of the dog" as "a course of alarming conduct[,]" noting that N.J.S.A.2C:33-4(c) "talks about a course of alarming conduct with a purpose to alarm or seriously annoy such other person." "[L]ooking at all the circumstances[,]" the judge found it "fair to conclude that . . . an element that was going on was a controlling and harassing element."

The judge concluded that he was "inclined to issue a restraining order under [h]arassment[,]" adding: "I reserve the right to entertain a motion for reconsideration . . . . My sense is this is an unusual case. I am announcing a judgment that I think is sensible under the law and under a broad common sense."

Plaintiff's counsel then asked for attorney's fees and punitive damages for the killing of the dog. The judge denied both requests.

On appeal, defendant contends that (1) he did not commit an act of domestic violence; and (2) a restraining order is not necessary to protect plaintiff. We concur with defendant on both issues.

Cognizant of our limited and deferential scope of review, Cesare v. Cesare, 154 N.J. 394, 413 (1998), we are nonetheless not satisfied that sufficient credible evidence exists in the record to support the judge's decision to issue an FRO. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Where, as here, we determine that "the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'" we will intervene "to ensure that there is not a denial of justice." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citation omitted).

Here, none of the three acts at issue — the theft of jewelry, the killing of plaintiff's dog, and the burning of plaintiff's leg with the cigarette lighter — was ever established as having been done with the "purpose to alarm or seriously annoy" plaintiff. N.J.S.A. 2C:33-4(c). The judge himself noted that the theft of the jewelry was to support defendant's drug habit; the killing of the dog was to "avenge" the dog having bitten defendant; and plaintiff "acquiesced" in the cigarette lighter incident.

Plaintiff testified that she was afraid of defendant because she had told the police he was the one who stole the jewelry; she stated that, despite the fact that they were engaged in a loving relationship during the time the three pertinent acts occurred, she now fears him because she has come to realize that he is controlling.

However, plaintiff never testified that she believed defendant committed any of the acts with the purpose "to alarm or seriously annoy" her. The theft of the jewelry upset her because defendant had lied to her about whose jewelry he had stolen and because her parents' possessions were involved. The death of her dog upset her greatly, but did not cause her to fear defendant as a result. The cigarette lighter incident took place during what she apparently considered a romantic exchange when defendant said he wanted her to remember him forever.

While these incidents may, as the judge found, have been signs of "an unhealthy situation," the record does not support the conclusion that any of them was committed with the requisite purpose sufficient to establish harassment under the Act. Where, as here, the judge found it "difficult to accept" those acts "either individually or cumulatively as a basis for . . . relief[,]" his ensuing cursory conclusion that they constituted "a course of alarming conduct" warranting entry of an FRO cannot reasonably said to be supported by the record.

N.J.S.A. 2C:25-29(a) provides that at an FRO hearing, "the standard for proving the allegations in the complaint shall be by a preponderance of the evidence." Here the judge did not articulate any standard of proof for his findings, let alone the statutorily required standard.

"Integral to a finding of harassment . . . is the establishment of the purpose to harass, which is set forth in the statute itself." Corrente v. Corrente, 281 N.J. Super. 243, 249 (App. Div. 1995).

A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist.

[N.J.S.A. 2C:2-2(b)(1).]

To find that "defendant's purpose was to alarm plaintiff requires proof of anxiety or distress. The serious annoyance requirement 'under subsection (c) means to weary, worry, trouble, or offend.'" H.E.S. v. J.C.S., 175 N.J. 309, 327 (2003) (quoting State v. Hoffman, 149 N.J. 564, 581 (1997)). Nothing in this record evinces defendant's "conscious object" to "alarm or seriously annoy" plaintiff. N.J.S.A. 2C:33-4(c). No evidence satisfied the required proof elements. Nor, as noted, did the judge find by a preponderance of the evidence that they were met.

Having determined that the judge erred in concluding that defendant's conduct constituted the predicate offense of harassment under the Act and, therefore, the FRO must be reversed on that basis, we need not address defendant's second contention. We will note, however, that the judge failed to follow the two-step process required by Silver, namely:

First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred. . . .

. . . .

The second inquiry, upon a finding of the commission of a predicate act of domestic violence, is whether the court should enter a restraining order that provides protection for the victim. . . .

. . . .

. . . [T]he guiding standard is whether a restraining order is necessary . . . to protect the victim from an immediate danger or to prevent further abuse.

[Silver, supra, 387 N.J. Super. at 125-27.]

The judge never addressed the "second inquiry[.]" Id. at 126.

Reversed on the appeal; the cross-appeal is moot.