Limpert v. Limpert

• Decision Date: 23 June 1972
• Citation: 119 N.J.Super. 438,292 A.2d 38
• Parties: Dorothy H. LIMPERT, Plaintiff-Appellant, v. Francis J. LIMPERT, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 438

119 N.J.Super. 438

292 A.2d 38

Dorothy H. LIMPERT, Plaintiff-Appellant, v. Francis J. LIMPERT, Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Argued June 6, 1972.

Decided June 23, 1972.

Robert S. Solomon, Newark, for appellant (Kirsten, Solomon & Friedman, Newark, attorneys).

Alan M. Grosman, Newark, for respondent (Grosman & Grosman, Newark, attorneys).

Before Judges LEWIS, HALPERN and LORA.

PER CURIAM.

Plaintiff, Dorothy H. Limpert, was divorced from defendant, Francis J. Limpert, in 1955, and granted custody of their 4 1/2-year-old son Gregory for whose support defendant was ordered to pay plaintiff $20 a week, plus necessary hospital, medical and dental expenses. Since plaintiff was working at the time, she did not seek alimony. Under an order entered October 27, 1961, the child support was increased to $27.50 a week, plus reasonable medical expenses.

By order to show cause, dated November 20, 1969, plaintiff instituted this action seeking (1) increased support for the son, Gregory, who was attending college in Boston; (2) support for herself, since she was then unable to work due to polymyositis; and (3) counsel fees. An application for an oral hearing was denied and the matter was heard on affidavits and interrogatories. The trial judge found that Gregory was emancipated and terminated support and maintenance for him as of January 16, 1970. He also denied plaintiff's application for alimony at that time but provided that if she were denied social security disability payments, further application for alimony could be made to the court. A counsel fee of $250, plus costs, was allowed plaintiff.

Plaintiff appealed from the whole of the order and the Appellate Division, in an unpublished opinion, reversed and remanded the entire matter for plenary hearing. Jurisdiction was not retained.

After such plenary hearing, the trial judge, by letter opinion dated April 26, 1971, found that the son was emancipated upon his graduation from high school and that defendant had no liability for the past, present, or future education of the son. He denied plaintiff's application for alimony and allowed a counsel fee of $350. Plaintiff appeals from the whole of that order.

Emancipation in its general sense signifies a surrender and renunciation of the correlative rights and duties touching the care, custody and earnings of the child. Cafaro v. Cafaro, 118 N.J.L. 123, 124, 191 A. 472 (E. & A. 1936). According to Straver v. Straver, 26 N.J.Misc. 218, 222, 59 A.2d 39 (Ch.1948), there is no age fixed in the law when a child becomes emancipated; prior to 21 years there is a presumption against it, and the burden of establishing the status by competent evidence is on him who asserts it.

In Straver the court rejected the contention of a divorced father that he was no longer obligated to make support payments pursuant to a divorce decree by reason of the fact that his 18-year-old daughter had become emancipated in that she had relinquished the use of his name and had become known by the name of her stepfather, and that she refused to visit him. The court pointed out that the mother had the custody and control of the child, that she lived with her, was subject to her parental domination, and was still attending school. Generally, as to voluntary acts of a child which will terminate a parent's obligation to support, see Annotation, 32 A.L.R.3d 1055 (1970).

Aside from the issue of emancipation, it appeared to be established law in this State that generally a father is under no duty to provide a college education for a son or daughter regardless of his financial capacity. Straver v. Straver, Supra at 224, 59 A.2d 39. See also Rosenthal v. Rosenthal, 19 N.J.Super. 521, 526, 88 A.2d 655 (Ch.Div.1952), mod. 26 N.J.Super. 400, 98 A.2d 338 (App.Div.1953). However, there has been a trend in our courts towards providing greater education for children by including the expense of a college education as part of child support where the child shows scholastic aptitude and the parents are well able to afford it. See Khalaf v. Khalaf, 58 N.J. 63, 71--72, 275 A.2d 132 (1971), and the cases cited therein.

In the present case there is support in the record below for the trial judge's findings that Gregory's high school record demonstrated dubious scholastic ability and lackadaisical determination, and that neither the income of plaintiff nor defendant, nor both incomes combined,...