Bishop v. Bishop

• Citation: 287 N.J.Super. 593,671 A.2d 644
• Parties: , 64 USLW 2563 Carlene BISHOP, Plaintiff, v. Robert BISHOP, Defendant.
• Decision Date: 28 July 1995
• Court: Superior Court of New Jersey

Page 593

287 N.J.Super. 593

671 A.2d 644, 64 USLW 2563

Carlene BISHOP, Plaintiff, v. Robert BISHOP, Defendant.

Superior Court of New Jersey, Chancery Division,

Family Part, Passaic County.

Decided July 28, 1995.

Robert P. Donovan, Newark, for plaintiff.

James M. Cerra, Newton, for defendant.

DeLUCCIA, J.S.C.

The issue in this case is whether a 20-year old cadet enrolled at the United States Military Academy at West Point (West Point) should be declared emancipated, thus relieving his divorced father from any obligation to provide his former spouse with child support. This question does not appear to have been previously considered in any reported decision in this jurisdiction. What hereinafter follows is the court's written supplementation of its oral decision rendered from the bench on July 28, 1995.

The matter is before the court by way of plaintiff's post-judgment motion which seeks enforcement of a certain interspousal agreement entered into at the time of the divorce. Plaintiff requests an increase in child support as well as establishment of support arrears. Other issues not germane to this question were also presented for the court's consideration. They were separately addressed in the court's oral decision, and are not included in this opinion.

The present controversy evolved as follows: The parties were divorced by judgment entered January 7, 1988. The judgment incorporated the terms of a "verbal property settlement and support agreement" which had been placed upon the record on an earlier date. The agreement purportedly resolved the custody and economic issues in the dissolution of their marriage.

The agreement provided that the parties were to share "joint legal custody" of their three children with physical custody reposing with plaintiff. Defendant was obligated to pay child support in the sum of $600 per month. The support payments were allocated $200 per month per child. The agreement also required that "... the payment of support for each child ... continue until such time as each child is emancipated." The parties failed to define "emancipation" in their agreement. The agreement also stipulated that the parties were to "... share expenses for the attendance at college by the children on a basis consistent with the respective financial abilities to pay at the time a particular child attends college." The agreement did not recite a formula or method for the determination of that obligation. However, the parties were to confer in respect of the selection of any post-secondary educational opportunity for the children.

Sometime prior to this motion, defendant reduced his support payments from $600 to $400. This action was apparently the consequence of the emancipation of the parties' eldest child. This reduction has not been contested by plaintiff. However, when the parties' second child entered West Point in August 1993, defendant again unilaterally reduced his monthly child support obligation by an additional $200. Plaintiff now resists defendant's action.

Plaintiff contends that notwithstanding her son's status as a cadet at West Point, she continues to provide him with significant financial support, and therefore, is entitled to have defendant's support obligation continue, if not increased. Plaintiff argues that their son should be treated in the same fashion as any other unemancipated child attending college. She claims that she continues to maintain the former marital home in part to accommodate her son's seven to nine weekend visits per semester. Additionally, her son returns home for approximately one month during the summer. Plaintiff maintains that during such visits she incurs additional expenses for food and transportation.

Defendant argues that his son's status at West Point is not analogous to the typical college student. He maintains that federal law considers cadets at West Point as members of the United States Army on active duty. He further notes that not only does his son receive his education without parental contribution, but all of his other expenses including room and board are paid by the military. In addition, he receives a stipend of $100.00 per month. He notes that traditionally, minors who enter the military are deemed emancipated.

The parties submitted certifications and affidavits in support of their respective positions. Upon review, the court has concluded that there are no material facts which are genuinely controverted. Consequently, the motion will be addressed without the benefit of a plenary hearing. Shaw v. Shaw, 138 N.J.Super. 436, 440, 351 A.2d 374 (App.Div.1976). ¹

It is firmly established that there is no specific age at which the emancipation of a child occurs. The issue is fact sensitive and requires a critical evaluation of then prevailing circumstances as they are presented in each case. Newburgh v. Arrigo, 88 N.J. 529, 543, 443 A.2d 1031 (1982). Generally, a rebuttable presumption against emancipation exists prior to the attainment of the age of majority which is eighteen. Reaching age eighteen establishes prima facie, but not conclusive proof of emancipation. Ibid.

The reported decisions in this jurisdiction hold that the emancipation of a child occurs when the fundamental dependant relationship between parent and child is terminated. When a child moves beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status on his or her own, generally he or she will be deemed emancipated. Thus emancipation has been recognized upon a child's marriage, Leith v. Horgan, 24 N.J.Super. 516, 518, 95 A.2d 15 (App.Div.1953); induction into the military service, Slep v. Slep, 43 N.J.Super. 538, 543, 129 A.2d 317 (Ch.Div.1957), or by the entry of a court order based upon a determination as to the child's best interest, N.J. Div. of Youth & Family Serv. v. V, 154 N.J.Super. 531, 536-537, 381 A.2d 1241 (J. & D.R.Ct.1977).

In Newburgh, supra, the Supreme Court recognized that, "... in appropriate circumstances, the privilege of parenthood carries with it the duty to assure a necessary education for children." Id. at 543, 443 A.2d 1031. Consonant with that principle, our courts have required divorced parents to contribute towards a child's post-secondary education, Khalaf v. Khalaf, 58 N.J. 63, 71-72, 275 A.2d 132 (1971); required supporting spouses to continue support payments while a child was enrolled in a full time undergraduate program, Limpert v. Limpert, 119 N.J.Super. 438, 442-443, 292 A.2d 38 (App.Div.1972); and have even required the continuation of support payments for a twenty-three year old child pursuing a post-graduate law degree, Ross v. Ross, 167 N.J.Super. 441, 444-446, 400 A.2d 1233 (Ch.Div.1979). An examination of the facts in these cases reveals that the children continued to maintain a dependant relationship with the custodial parent notwithstanding their chronological age. Accordingly, the parental support obligations continued.

The issue in the present case must be examined by the same standards. Thus, it is not Cadet Bishop's age that is dispositive, rather it is his status as a West Point cadet and how, if at all, that status affects his dependency upon his parents. Although New Jersey courts have yet to report any decisions on this issue, other states have addressed this question. In Porath v. McVey, 884 S.W.2d 692 (Mo.App.S.D.1994), the Missouri Court of Appeals concluded that an eighteen year old West Point cadet was emancipated, as a consequence of which his father's child support obligation was terminated. Although the decision in Porath in part relied upon a specific Missouri statute which legislatively terminated child support obligations when a child entered "active duty in the military", that court's analysis of this issue is nonetheless here pertinent. The Missouri court was required to determine whether the child's attendance at West Point constituted "active duty in the military" as that term was employed in the Missouri statute authorizing termination of child support payments. The parties in Porath framed the issues in a similar fashion as have the parties here. The Missouri Court of Appeals analyzed the issue in view of whether the lifestyle changes imposed upon a cadet by West Point had by their very nature terminated parental control and responsibility.

Although the Missouri statute did not define the meaning of "active duty in the military", the court resorted to review of the United States Code to determine whether a West Point cadet obtained that status. The court found that:

10 U.S.C. § 101(d) 1 defines active duty as "... full time duty in the active military service of the United States. Such term includes full time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned."

[(emphasis added) Id. at 695.]

Furthermore, by virtue of 10 U.S.C. § 3075 West Point cadets are deemed part of the Regular Army, which is the component of the Army that consists of persons whose continuous service on active duty in both peace and war is contemplated by law. Ibid.

The Missouri court also observed that 10 U.S.C. § 4349 divided the Corps of Cadets into companies with each company being commanded by a commissioned officer of the Army; required a cadet to perform duties at such places and of such type as the President may direct; and required the Corps of Cadets to be trained in the duties of members of the Army with yearly encampments. Ibid.

The court determined that West Point cadets receive room, board, tuition and medical care from the military and are paid $6500 a year all of which is retained for the expenses of a personal computer, uniforms, textbooks and activity fees except for $75 (now $100) per month which is available to the cadet for personal use. Ibid.

The court observed that plebes entering the academy must...