NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0249-15T1
KENNETH SCARPA,
Plaintiff-Respondent,
v.
LINDA SCARPA,
Defendant-Appellant.
________________________________________
Submitted February 28, 2017 – Decided March 30, 2017
Before Judges Reisner and Rothstadt.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-10489-94.
Ferro & Ferro Law Offices, attorneys for appellant (Nancy C. Ferro, on the briefs).
Callagy Law, PC, attorneys for respondent (Brian P. McCann, on the brief).
PER CURIAM
In this post-judgment dissolution action, defendant, Linda
Scarpa, appeals from the Family Part's August 7, 2015 order
granting plaintiff, Kenneth Scarpa's, motion seeking to terminate
his child support obligation based upon the emancipation of the parties’ now twenty-three-year-old youngest son. The court
entered its order after determining defendant failed to rebut the
presumption that the adult son was emancipated. Defendant contends
that emancipation was improper because her son has a physical
disability and has been classified as a special needs learner
since preschool. We affirm.
The parties were married in 1982 and divorced on August 7,
1995, pursuant to a final judgment of divorce (FJOD) that
incorporated the parties' property settlement agreement. Three
sons were born during the marriage, the youngest in 1993. The
FJOD awarded the parties joint legal custody of their three
children, designated defendant as the parent of primary residence
and obligated plaintiff to pay child support. It required support
to be paid until the children were emancipated, which it defined
"pursuant to the current case law which includes a period during
which a child is attending college or other post-graduate
education."
On July 24, 2015, plaintiff filed his motion to terminate
child support. In support of his motion, plaintiff filed a
certification stating that his son graduated high school in 2012
and, after attending a community college for three years
accumulated only thirty-four credits, approximately six credits
per semester. Plaintiff also stated that his son actually spent
2 A-0249-15T1 almost all of his time living with plaintiff and, in addition to
paying the court ordered support, plaintiff paid other expenses
for his son, including his college tuition.
Defendant filed a cross-motion and certification in
opposition to plaintiff's motion. Defendant explained in her
certification that her son is blind in his left eye since birth,
and had been classified as Specific Learning Disabled by his public
school district, which provided him with services in accordance
with an individualized education program (IEP)1 since
kindergarten. Some of the services included occupational therapy,
physical therapy, and participation in a resource program to help
develop his fine motor skills. The school district provided the
services from kindergarten through high school, enabling the son
to graduate on time.
In preparation for the son's transition to college, the school
district prepared a psychological and educational evaluation of
the parties' son. The psychological evaluation concluded that he
would require some accommodations to be successful in college.
The accommodations included being provided with "writing coaches
and tutors and meet[ing] with the professors on a regular basis."
1 An IEP "is a written statement outlining the education placement and goals for [a] child." Lascari v. Bd. of Educ., 116 N.J. 30, 34 (1989).
3 A-0249-15T1 The report indicated the son would "need a great deal of academic
support when he has a course which requires [nonverbal] skills."
It also found his "processing speed is in the low average range[,
which] indicates the need for extended time for tests and
examinations . . . if he is to accurately demonstrate his mastery
of the material."
The educational evaluation also provided examples of academic
accommodations that were necessary for his success. They included
"modified reading and writing assignments, word banks, visual
models, and examples of work that has been completed."
The parties' son started college full-time in 2012. Neither
he nor his parents applied for any academic accommodations through
the 2014-15 school year. A May 2015 unofficial school transcript
indicated that although he registered as a full time student, he
failed or withdrew from various college courses. In 2015,
defendant provided her son's college with his high school special
education records, and the college deemed him eligible to receive
special accommodations and support. Specifically, the school
determined that he was eligible to receive 100% extra test taking
time, assistive technology, permanent tutoring and peer note-
taking, among other accommodations.
In a reply certification, plaintiff responded to defendant's
contentions. In his certification, defendant stated despite his
4 A-0249-15T1 son's physical issue and academic needs, he is strong and healthy,
maintains an unrestricted driver’s license, drives his own
vehicle, is an athletic hockey player, and socializes with his
siblings and friends. According to documents supplied by
plaintiff, the community college placed his son on academic
probation and, as a result, he could only attend part-time, being
limited to taking no more than nine credits per semester.
The court considered the parties' oral arguments on August
7, 2015. During that hearing, the court repeatedly expressed
concern over defendant's failure to come forward with any competent
evidence to support her contention that her son's physical or
cognitive limitations prevented him from becoming emancipated.
The court stated:
Maybe I am medically unaware of the specifics, the degree of diminishment of this -- this 22 year old’s abilities one way or the other. I really don’t know by way of a complete thorough medical report how his current condition, if it is -- if he is labeled in some way disabled, affects his ability to be a current success carrying more than six or nine -- completing more than six or nine credits for any particular semester.
. . . .
[I]t’s understandable that [he] has some type of disability, the specifics . . . of the disability are as you guys have told me what they are. I have no medical personnel in terms of a physician or anyone else, a psychiatrist, a psychologist, a therapist . . . I don’t have
5 A-0249-15T1 anything specifically identifying it, the issues that he has intellectually or in a capacity viewpoint, how it affects his schooling going forward.
[1T42.]
The court concluded that defendant failed to sufficiently
establish that her son was unemancipated despite his less than
full-time school status. The court's order granting plaintiff's
motion noted that the court found that the parties' son "failed
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0249-15T1
KENNETH SCARPA,
Plaintiff-Respondent,
v.
LINDA SCARPA,
Defendant-Appellant.
________________________________________
Submitted February 28, 2017 – Decided March 30, 2017
Before Judges Reisner and Rothstadt.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-10489-94.
Ferro & Ferro Law Offices, attorneys for appellant (Nancy C. Ferro, on the briefs).
Callagy Law, PC, attorneys for respondent (Brian P. McCann, on the brief).
PER CURIAM
In this post-judgment dissolution action, defendant, Linda
Scarpa, appeals from the Family Part's August 7, 2015 order
granting plaintiff, Kenneth Scarpa's, motion seeking to terminate
his child support obligation based upon the emancipation of the parties’ now twenty-three-year-old youngest son. The court
entered its order after determining defendant failed to rebut the
presumption that the adult son was emancipated. Defendant contends
that emancipation was improper because her son has a physical
disability and has been classified as a special needs learner
since preschool. We affirm.
The parties were married in 1982 and divorced on August 7,
1995, pursuant to a final judgment of divorce (FJOD) that
incorporated the parties' property settlement agreement. Three
sons were born during the marriage, the youngest in 1993. The
FJOD awarded the parties joint legal custody of their three
children, designated defendant as the parent of primary residence
and obligated plaintiff to pay child support. It required support
to be paid until the children were emancipated, which it defined
"pursuant to the current case law which includes a period during
which a child is attending college or other post-graduate
education."
On July 24, 2015, plaintiff filed his motion to terminate
child support. In support of his motion, plaintiff filed a
certification stating that his son graduated high school in 2012
and, after attending a community college for three years
accumulated only thirty-four credits, approximately six credits
per semester. Plaintiff also stated that his son actually spent
2 A-0249-15T1 almost all of his time living with plaintiff and, in addition to
paying the court ordered support, plaintiff paid other expenses
for his son, including his college tuition.
Defendant filed a cross-motion and certification in
opposition to plaintiff's motion. Defendant explained in her
certification that her son is blind in his left eye since birth,
and had been classified as Specific Learning Disabled by his public
school district, which provided him with services in accordance
with an individualized education program (IEP)1 since
kindergarten. Some of the services included occupational therapy,
physical therapy, and participation in a resource program to help
develop his fine motor skills. The school district provided the
services from kindergarten through high school, enabling the son
to graduate on time.
In preparation for the son's transition to college, the school
district prepared a psychological and educational evaluation of
the parties' son. The psychological evaluation concluded that he
would require some accommodations to be successful in college.
The accommodations included being provided with "writing coaches
and tutors and meet[ing] with the professors on a regular basis."
1 An IEP "is a written statement outlining the education placement and goals for [a] child." Lascari v. Bd. of Educ., 116 N.J. 30, 34 (1989).
3 A-0249-15T1 The report indicated the son would "need a great deal of academic
support when he has a course which requires [nonverbal] skills."
It also found his "processing speed is in the low average range[,
which] indicates the need for extended time for tests and
examinations . . . if he is to accurately demonstrate his mastery
of the material."
The educational evaluation also provided examples of academic
accommodations that were necessary for his success. They included
"modified reading and writing assignments, word banks, visual
models, and examples of work that has been completed."
The parties' son started college full-time in 2012. Neither
he nor his parents applied for any academic accommodations through
the 2014-15 school year. A May 2015 unofficial school transcript
indicated that although he registered as a full time student, he
failed or withdrew from various college courses. In 2015,
defendant provided her son's college with his high school special
education records, and the college deemed him eligible to receive
special accommodations and support. Specifically, the school
determined that he was eligible to receive 100% extra test taking
time, assistive technology, permanent tutoring and peer note-
taking, among other accommodations.
In a reply certification, plaintiff responded to defendant's
contentions. In his certification, defendant stated despite his
4 A-0249-15T1 son's physical issue and academic needs, he is strong and healthy,
maintains an unrestricted driver’s license, drives his own
vehicle, is an athletic hockey player, and socializes with his
siblings and friends. According to documents supplied by
plaintiff, the community college placed his son on academic
probation and, as a result, he could only attend part-time, being
limited to taking no more than nine credits per semester.
The court considered the parties' oral arguments on August
7, 2015. During that hearing, the court repeatedly expressed
concern over defendant's failure to come forward with any competent
evidence to support her contention that her son's physical or
cognitive limitations prevented him from becoming emancipated.
The court stated:
Maybe I am medically unaware of the specifics, the degree of diminishment of this -- this 22 year old’s abilities one way or the other. I really don’t know by way of a complete thorough medical report how his current condition, if it is -- if he is labeled in some way disabled, affects his ability to be a current success carrying more than six or nine -- completing more than six or nine credits for any particular semester.
. . . .
[I]t’s understandable that [he] has some type of disability, the specifics . . . of the disability are as you guys have told me what they are. I have no medical personnel in terms of a physician or anyone else, a psychiatrist, a psychologist, a therapist . . . I don’t have
5 A-0249-15T1 anything specifically identifying it, the issues that he has intellectually or in a capacity viewpoint, how it affects his schooling going forward.
[1T42.]
The court concluded that defendant failed to sufficiently
establish that her son was unemancipated despite his less than
full-time school status. The court's order granting plaintiff's
motion noted that the court found that the parties' son "failed
to maintain full-time status as a college student over the course
of his three years in college." This appeal followed.
Our review of the trial judge's fact-finding is limited. "The
general rule is that findings by the trial court are binding on
appeal when supported by adequate, substantial, credible
evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
Moreover, "[b]ecause of the family courts' special jurisdiction
and expertise in family matters, appellate courts should accord
deference to family court factfinding." Cesare, supra, 154 N.J.
at 413. "Accordingly, when a reviewing court concludes there is
satisfactory 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.'" Llewelyn v. Shewchuk,
6 A-0249-15T1 440 N.J. Super. 207, 213-14 (App. Div. 2015) (quoting Beck v.
Beck, 86 N.J. 480, 496 (1981).
"A trial court's interpretation of the law and the legal
consequences that flow from established facts are not entitled to
any special deference." Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995). "[A] trial judge's legal
conclusions, and the application of those conclusions to the facts,
are subject to our plenary review." Spangenberg v. Kolakowski,
442 N.J. Super. 529, 535 (App. Div. 2015) (quoting Reese v. Weis,
430 N.J. Super. 552, 568 (App. Div. 2013)). "To the extent that
the trial court's decision constitutes a legal determination, we
review it de novo." D'Agostino v. Maldonado, 216 N.J. 168, 182
(2013).
Applying those guiding principles, we conclude that the
Family Part correctly determined that defendant failed to
establish a prima facie claim that the parties' son was not
emancipated. We substantially agree with the reasoning stated in
the court's oral decision. We add only the following brief
comments.
Contrary to defendant's position, the burden of proving that
her son was not emancipated shifted to her based on her adult
child's age. Absent an agreement to the contrary, when a child
reaches the age of majority it is "prima facie, but not conclusive,
7 A-0249-15T1 proof of emancipation." Llewelyn, supra, 440 N.J. Super. at 216
(citation omitted). "Once the presumption is established, the
burden of proof to rebut the statutory presumption of emancipation
shifts to the party or child seeking to continue the support
obligation." Ibid.
"Prior to addressing whether parental support is required for
a child who reaches majority, the pivotal question is whether the
child remains unemancipated." Ricci v. Ricci, __ N.J. Super. __,
__ (App. Div. Feb. 9, 2017) (slip op. at 28). A child with
disabilities will be considered unemancipated "if the child
suffers from a severe mental or physical incapacity that causes
the child to be financially dependent on a parent." N.J.S.A.
2A:34-23.2 Also, a child who is enrolled full time in secondary
education will ordinarily remain unemancipated. See Patetta v.
Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003) ("while parents
2 The law was significantly changed in 2016 when N.J.S.A. 2A:17- 56.67 was enacted to create an automatic termination of support when a child reaches the age of nineteen, subject to continuation upon application by the residential parent or the child leading to a court order. It became effective on February 1, 2017. Pursuant to the statute, all child support terminates once a child turns twenty-three. The statute is applicable even when the child has a mental or physical disability. N.J.S.A. 2A:17-56.67(e)(2). However, if a parent needs to obtain financial assistance for a disabled adult child, the new statute allows the court to order "another form of financial maintenance for a child who has reached the age of 23." Ibid.
8 A-0249-15T1 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."); Cf. Keegan v. Keegan, 326 N.J.
Super. 289, 295 (App. Div. 1999) (holding that a hiatus from
college during which the child worked full-time did not result in
emancipation). When a child has special needs, however, those
needs may interfere with the ability to attend college full-time
and special accommodations may be required.
An adult child who suffers from a disability but is self-
sufficient will ordinarily be considered to be emancipated. See
Kruvant v. Kruvant, 100 N.J. Super. 107, 119 (App. Div. 1968).
Where the claim is that an adult child suffers from a physical or
mental health condition, even one for which the child is under
treatment, "there [must be] evidence [that the child's] issues
interfered with [his or] her ability to be independent" in order
to rebut the presumption. Llewelyn, supra, 440 N.J. Super. at
218. For example, where an adult child had been institutionalized
prior to emancipation and "becomes so disabled as to be incapable
of maintaining himself because of a mental illness or emotional
disorder which pre-existed his attaining his majority, the husband
may be required at the suit of the wife to contribute to the cost
of his necessary care and maintenance." Kruvant, supra, 100 N.J.
Super. at 118. However, there must be medical or psychiatric
9 A-0249-15T1 evidence presented about an adult child's health issue from which
he allegedly suffered. See Ribner v. Ribner, 290 N.J. Super. 66,
72 (App. Div. 1996).
Defendant, as the party obligated to rebut the presumption
of emancipation, failed to meet her burden of proof. She was
given an opportunity to present competent evidence from experts,
see id. at 72, but only presented her own opinion, which was based,
in part, upon three-year-old school records that did not support
the contention that the parties' son suffered from any disability
that prevented him from moving beyond his parents' sphere of
influence. The school records were not a competent substitute for
expert evidence and, in any event, they only related to the son's
problems in school and established that there was help available
for him to pursue a full-time education. There simply was no
evidence that the son suffered from any problem that prevented him
from pursuing a full time education or supporting himself. See
Kruvant, supra, 100 N.J. Super. at 118. Without any competent
proof of a disability's impact on his ability to support himself,
his "decision to seriously pursue a college education alone does
not create the required dependency allowing him . . . to be
unemancipated." Ricci, supra, __ N.J. Super. at __ (slip op at
35-36).
Affirmed.
10 A-0249-15T1