NJSBA Family Law Section

​Please reply directly to me. Thanks for your time. My client's ex wife (she is custodial parent) has been enrolling the parties' now 20 year old son in college for 2 years and he obviously does not attend as he has a 0 GPA. Its obvious that the ex wife is requiring him to enroll so as to continue to collect child support. The son would rather play video games 24 hours per day & nothing else. After we filed our Motion to emancipate, the ex wife then claims in her Cross Motion  that the son has generalized anxiety which (if he actually has it),  we believe is due to her forcing son to enroll and deceive his father. On the date of oral argument, the ex wife brings son to court and now there is  new claim that was never raised before in any Cross Motion or anywhere else- that the son is now enrolled in an online veterinarian technician program (enrolled just in time for oral argument)  The court requests a plenary hearing on the issue and we need to submit supplemental certifications , wherein the ex wife admits that the son is not full time and we have looked the school up online and it is not accredited.  Plenary hearing is this week and I have a few questions-1) I don't believe that the son's psychiatrist, who prepared a 3 sentence report in anticipation of plenary hearing which states that son has generalized anxiety, (don't we all have some anxiety?)  is allowed to go outside the scope of the report in his testimony and what is the caselaw regarding limiting his testimony? 2) Doesnt Rule 5:5-4 (d) which gives dates certain for filing Motions and replies mean that a litigant cannot come up with new info at oral argument and now have a plenary hearing about this new info? 3) Is there caselaw that actually states how many credits are considered full time in college/trade school? Twelve credits seems to be the lingo, but cant find the caselaw 4) must a college /trade school be accredited and is there caselaw/statute on that? 5) Is a O GPA enough to emancipate a child and should the child be given a third year of education to try to turn that GPA around? 6) What questions should be asked of the son's therapist/psychiatrist about his generalized anxiety and how that should affect his ability to not attend school full time and thus continue his child support? Please reply directly to me . Thank you so  much!

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Christine Moriarty Brophy Esq
Upper Saddle River NJ
(201)785-1658
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Original Message------

​Please reply directly to me. Thanks for your time. My client's ex wife (she is custodial parent) has been enrolling the parties' now 20 year old son in college for 2 years and he obviously does not attend as he has a 0 GPA. Its obvious that the ex wife is requiring him to enroll so as to continue to collect child support. The son would rather play video games 24 hours per day & nothing else. After we filed our Motion to emancipate, the ex wife then claims in her Cross Motion  that the son has generalized anxiety which (if he actually has it),  we believe is due to her forcing son to enroll and deceive his father. On the date of oral argument, the ex wife brings son to court and now there is  new claim that was never raised before in any Cross Motion or anywhere else- that the son is now enrolled in an online veterinarian technician program (enrolled just in time for oral argument)  The court requests a plenary hearing on the issue and we need to submit supplemental certifications , wherein the ex wife admits that the son is not full time and we have looked the school up online and it is not accredited.  Plenary hearing is this week and I have a few questions-1) I don't believe that the son's psychiatrist, who prepared a 3 sentence report in anticipation of plenary hearing which states that son has generalized anxiety, (don't we all have some anxiety?)  is allowed to go outside the scope of the report in his testimony and what is the caselaw regarding limiting his testimony? 2) Doesnt Rule 5:5-4 (d) which gives dates certain for filing Motions and replies mean that a litigant cannot come up with new info at oral argument and now have a plenary hearing about this new info? 3) Is there caselaw that actually states how many credits are considered full time in college/trade school? Twelve credits seems to be the lingo, but cant find the caselaw 4) must a college /trade school be accredited and is there caselaw/statute on that? 5) Is a O GPA enough to emancipate a child and should the child be given a third year of education to try to turn that GPA around? 6) What questions should be asked of the son's therapist/psychiatrist about his generalized anxiety and how that should affect his ability to not attend school full time and thus continue his child support? Please reply directly to me . Thank you so  much!

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Christine Moriarty Brophy Esq
Upper Saddle River NJ
(201)785-1658
------------------------------

Original Message------

Hi Christine – very interesting questions and a fact pattern that seems to come up quite frequently these days!  Please do share the outcome of your hearing.

 

I can't answer many of your questions, but have comments on a couple of them:

 

#2 Rule 5:5-4 (d) does give dates certain for filing Motions and replies, but in my experience the Family Part judges generally find it within their equitable power to include new information and grant a plenary hearing when they feel the equities require it.

 

# 5 I don't have caselaw but did look into this aspect of the new child support termination statute recently, which may make a good argument by analogy – for a continuation of child support request for a child 19 or older, NJ 2A:17-56.67 provides that the parent seeking continuation of support needs to show that either "(a) the child is still enrolled in high school or other secondary educational program; or (b) the child is a student in a post-secondary education program and is enrolled for the number of hours or courses the school considers to be full-time attendance during some part of each of any five calendar months of the year."  In my case the child is at Mercer Community College which considers 12 to 18 credits to be full time, and there should be no continuation of support for a child who has been taking 6-8 credits per semester.

 

Good luck!

 

C. Megan Oltman

Oltman Law & Mediation

475 Wall St

Princeton, NJ 08540

http://moltmanlaw.com

(609) 924-2044

 

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Original Message------

​Please reply directly to me. Thanks for your time. My client's ex wife (she is custodial parent) has been enrolling the parties' now 20 year old son in college for 2 years and he obviously does not attend as he has a 0 GPA. Its obvious that the ex wife is requiring him to enroll so as to continue to collect child support. The son would rather play video games 24 hours per day & nothing else. After we filed our Motion to emancipate, the ex wife then claims in her Cross Motion  that the son has generalized anxiety which (if he actually has it),  we believe is due to her forcing son to enroll and deceive his father. On the date of oral argument, the ex wife brings son to court and now there is  new claim that was never raised before in any Cross Motion or anywhere else- that the son is now enrolled in an online veterinarian technician program (enrolled just in time for oral argument)  The court requests a plenary hearing on the issue and we need to submit supplemental certifications , wherein the ex wife admits that the son is not full time and we have looked the school up online and it is not accredited.  Plenary hearing is this week and I have a few questions-1) I don't believe that the son's psychiatrist, who prepared a 3 sentence report in anticipation of plenary hearing which states that son has generalized anxiety, (don't we all have some anxiety?)  is allowed to go outside the scope of the report in his testimony and what is the caselaw regarding limiting his testimony? 2) Doesnt Rule 5:5-4 (d) which gives dates certain for filing Motions and replies mean that a litigant cannot come up with new info at oral argument and now have a plenary hearing about this new info? 3) Is there caselaw that actually states how many credits are considered full time in college/trade school? Twelve credits seems to be the lingo, but cant find the caselaw 4) must a college /trade school be accredited and is there caselaw/statute on that? 5) Is a O GPA enough to emancipate a child and should the child be given a third year of education to try to turn that GPA around? 6) What questions should be asked of the son's therapist/psychiatrist about his generalized anxiety and how that should affect his ability to not attend school full time and thus continue his child support? Please reply directly to me . Thank you so  much!

------------------------------
Christine Moriarty Brophy Esq
Upper Saddle River NJ
(201)785-1658
------------------------------

Original Message------

​Please reply directly to me. Thanks for your time. My client's ex wife (she is custodial parent) has been enrolling the parties' now 20 year old son in college for 2 years and he obviously does not attend as he has a 0 GPA. Its obvious that the ex wife is requiring him to enroll so as to continue to collect child support. The son would rather play video games 24 hours per day & nothing else. After we filed our Motion to emancipate, the ex wife then claims in her Cross Motion  that the son has generalized anxiety which (if he actually has it),  we believe is due to her forcing son to enroll and deceive his father. On the date of oral argument, the ex wife brings son to court and now there is  new claim that was never raised before in any Cross Motion or anywhere else- that the son is now enrolled in an online veterinarian technician program (enrolled just in time for oral argument)  The court requests a plenary hearing on the issue and we need to submit supplemental certifications , wherein the ex wife admits that the son is not full time and we have looked the school up online and it is not accredited.  Plenary hearing is this week and I have a few questions-1) I don't believe that the son's psychiatrist, who prepared a 3 sentence report in anticipation of plenary hearing which states that son has generalized anxiety, (don't we all have some anxiety?)  is allowed to go outside the scope of the report in his testimony and what is the caselaw regarding limiting his testimony? 2) Doesnt Rule 5:5-4 (d) which gives dates certain for filing Motions and replies mean that a litigant cannot come up with new info at oral argument and now have a plenary hearing about this new info? 3) Is there caselaw that actually states how many credits are considered full time in college/trade school? Twelve credits seems to be the lingo, but cant find the caselaw 4) must a college /trade school be accredited and is there caselaw/statute on that? 5) Is a O GPA enough to emancipate a child and should the child be given a third year of education to try to turn that GPA around? 6) What questions should be asked of the son's therapist/psychiatrist about his generalized anxiety and how that should affect his ability to not attend school full time and thus continue his child support? Please reply directly to me . Thank you so  much!

------------------------------
Christine Moriarty Brophy Esq
Upper Saddle River NJ
(201)785-1658
------------------------------

Original Message------

"Generalized anxiety disorder" was, I believe, the precise diagnosis (and penchant for video games) that was rejected by the trial court and then affirmed on appeal in Turkheimer v. Burke - you might find the trial court opinion, appellate briefs, and appellate decision helpful:  http://dpdlaw.com/appeals.htm .

I probably have the same issue about to go up on appeal from Mercer, representing the payor this time: Trial court just denied a motion to emancipate a 23 1/2 year old who just completed her fifth year undergrad and doesn't have an associate's degree yet, averaging less than 12 credit per semester. In spite of the new statute's requirement that to continue support beyond 23, the court must find "exceptional circumstances including, but not limited to, a mental or physical disability", the trial court just relied on general language in a MSA saying support continues until out of college to continue an obligation. I don't know how much clearer the legislature needs to be...it's frustrating that clients need to fund some of these appeals.

Anyway - I agree that your facts should result in emancipation, Judge Flynn in the trial court thought so, and Judges Carroll and Rothstadt in the Appellate Division affirmed that she was correct.


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David Perry Davis, Esq.
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