Ross v. Ross

• Decision Date: 02 April 1979
• Citation: 400 A.2d 1233,167 N.J.Super. 441
• Parties: Beatrice ROSS, Plaintiff, v. Robert E. ROSS, Jr., Defendant.
• Court: New Jersey Superior Court

Page 441

167 N.J.Super. 441

400 A.2d 1233

Beatrice ROSS, Plaintiff, v. Robert E. ROSS, Jr., Defendant.

Superior Court of New Jersey, Chancery Division.

April 2, 1979.

Joseph S. Trapanese, Paterson, for plaintiff.

Gregory J. Aprile, Paterson, for defendant.

CONN, J. D. C. (temporarily assigned).

This post-divorce controversy focuses on the recurring question of the outer limits of a support obligation for a child who has attained majority. Continuing education of the child, through enrollment in a college, university or other post high school training program, has already been established as a possible basis for prolonging the noncustodial parent's support obligation beyond the age of majority. See Khalaf v. Khalaf, 58 N.J. 63, 275 A.2d 132 (1971); Limpert v. Limpert, 119 N.J.Super. 438, 292 A.2d 38 (App.Div.1972); Jonitz v. Jonitz, 25 N.J.Super. 544, 96 A.2d 782 (App.Div.1953); Schumm v. Schumm, 122 N.J.Super. 146, 299 A.2d 423 (Ch.Div.1973), and Straver v. Straver, 26 N.J.Misc. 218, 59 A.2d 39 (Ch.1948).

In this controversy the continuing education concept moves to the next level. For at issue here is the question of whether graduate school enrollment should likewise be construed as sufficient grounds for prolonging the noncustodial parent's support obligation, in this case for a 23-year-old, only child of a marriage. The question is a novel one in New Jersey.

Plaintiff mother, by judgment of divorce of October 19, 1973 and under an agreement made a part of that judgment, was to receive $17.50 a week from defendant father for the support of the child, Jane, "until emancipated."

Jane is now completing her first year of law school at Seton Hall University, to which she commutes as a full-time student. She graduated Seton Hall University in May 1978, obtaining a Bachelor of Arts degree, Magna cum laude. Defendant father continued the support payments until the week after Jane graduated college. Plaintiff mother thereafter moved to compel defendant to continue that support for Jane until she completes law school. Defendant objected; memos were submitted. Thereafter a plenary hearing was held and the following factual picture, essentially uncontroverted, developed.

As a high school student Jane indicated an early interest in becoming a lawyer. The testimony revealed that she had shown an interest in government and history and was advised by guidance counselors to consider pursuing a law career. The parties separated in 1972 when Jane was 15 and a sophomore in high school. She has always been in the custody of plaintiff mother. There was no persuasive proof that defendant was ever included in discussions with Jane as to her desires for a law career. The father was invited to and attended her high school graduation in 1974, but has not seen her again until these proceedings. The father never sought visitation with his daughter other than to tell her, at the time of separation in 1972, that "his door was always open to her." Likewise, Jane never took affirmative steps for visitation with her father and stated that her father always sent her a card with a money gift for her birthday and at Christmas. She always sent him a "thank you" note in which she briefly would describe her current activities.

At the divorce hearing in 1973, when the terms of the support obligation were reviewed, plaintiff testified that Jane would probably be going to law school. Nevertheless, there was no understanding reached with regard to how long support would continue.

The father is a chemical worker who earns approximately $16,000 a year. He has remarried and his present wife works. They own their own home and are presently supporting a daughter of defendant's present wife from her prior marriage. Neither party produced any evidence of professional training or of any post-high school education.

Plaintiff is a bookkeeper and earns approximately $12,000 a year. She has not remarried. She has paid and continues to pay for both college and law school, including all fees, tuition costs and books.

At the outset the father claims that he is entitled to a ruling, as a matter of law, that the maximum period for which support should continue would be up to graduation from an accredited college or university. He insists there must be a limit and that the cases, when analyzed, all suggest the completion of college as the outer limit of the support obligation. The argument continues that even if law school was the clearly established goal, there is nothing to prevent the child in question upon graduation from college from going to work and attaining her graduate degree by going to law school part-time.

However, a review of the case law on the subject, specifically, Khalaf v. Khalaf, 58 N.J. 63, 275 A.2d 132 (1971), and other cases cited therein, suggests that the question is an open one in which the court is free to apply various tests to assess the overall situation as to what the reasonable expectations are, the parties' means, etc., and what obligation, if any, there should be on the noncustodial parent. In short, the court is satisfied that there is no clearly established cut-off date that would entitle the father to a ruling as a matter of law. Admittedly there is no reported decision on this precise question in New Jersey, but several New Jersey courts have noted that "There is no age fixed in the law when a child becomes emancipated." Schumm v. Schumm, supra, 122 N.J.Super. at 150, 299 A.2d at 425 and Limpert v. Limpert, supra, 119 N.J.Super. at 440, 292 A.2d at 39.

With regard to the argument that the professional goal can be attained by part-time school attendance while also working, the answer is simply that the decision belongs to the child and the custodial parent. Our courts have long since noted that it is the custodial parent who is invested with the discretion regarding the method and means of educating the children. Subject to the issue such as that which is before the court, and also subject to the claim that certain decisions regarding the method of education are being made to harass or spite the noncustodial parent the noncustodial parent has no right to insist on alternative ways of accomplishing the goal. See Straver v. Straver, supra.

Before listing and analyzing the various factors that must be considered, the court believes that there is the following threshold question: Had there not been a separation and divorce, would the parties, while living together, have sent their daughter to law school and financed that schooling? It would seem clear from the facts, particularly the respective incomes of the parties; the...