SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3337-15T1

DEBORAH A. CONTE,

Plaintiff-Appellant,

v.

DAVID S. AINSWORTH,

Defendant-Respondent.

__________________________________________

Submitted May 25, 2017 – Decided

Before Judges Lihotz and O'Connor.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Middlesex 

County, Docket No. FD-12-0446-93.

Deborah A. Conte, appellant pro se.

Jabin & Fleming, LLC, attorneys for 

respondent (Christian P. Fleming, on the 

brief).

PER CURIAM

Plaintiff Deborah A. Conte (mother) appeals from a March 2, 

2016 Family Part order declaring the parties' daughter 

emancipated and terminating defendant David S. Ainsworth's 

NOT FOR PUBLICATION WITHOUT THE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.

August 31, 2017
2 A-3337-15T1

(father) obligation to pay child support. We reverse and remand 

for further proceedings.

I

We derive the following facts from the motion record. The 

parties' child was born in 1992 and is presently twenty-five 

years of age. In 1992, the parties executed an agreement which 

established parenting time and a weekly child support amount the 

father was to pay the mother. The father agreed to pay child 

support until the child was deemed emancipated. At the time the 

court declared the child was emancipated, the father was paying 

$330 per week. The father never exercised parenting time and 

saw the child for the first time when she was an adult.

In their agreement, the parties defined when the child was 

to be deemed emancipated. Among other things, emancipation was 

to occur "upon the completion of the child's college education." 

The agreement did not address the parties' contribution toward 

graduate school or, for that matter, college, apart and aside 

from the father's agreement to pay child support until the child 

completed college. 

In May 2015, the child graduated from Caldwell University, 

with honors, with a B.A. in psychology and art. The child 

managed to graduate from college even though, according to the 

mother, the child suffers from debilitating anxiety and 
3 A-3337-15T1

depression, for which she had been treated with medication and 

therapy. In September 2015, the child enrolled in a two-year 

program at the same institution to obtain a Master's Degree in 

mental health counseling. As she had throughout college, the 

child planned to live in her mother's home while attending 

graduate school. 

One month after the child graduated from college, the 

father unilaterally reduced his weekly child support obligation 

from $330 per week to $250 per week, and in August 2015, filed a 

motion to emancipate the child. The mother filed a cross-motion 

to compel, among other things, the father to: (1) pay child 

support in the amount of $390 per week; (2) pay arrears in the 

amount of $880; (3) pay one-half of the child's graduate school 

expenses; (4) reimburse the child $10,647.50, representing onehalf of the student loans the child borrowed to pay for the last 

two years of college; (5) provide a completed Financial 

Statement for Summary Support Actions and Confidential Litigant 

Information Sheet; and (6) pay counsel fees. 

In the certification she filed in support of her motion, 

the mother stated the cost for the child to attend the graduate 

program was about $16,000 per year. Although the child had 

obtained student loans in the past, the mother made no mention 
4 A-3337-15T1

of whether the child sought financial aid to defray graduate 

school costs. 

The mother noted her income was limited to Social Security 

disability benefits of $1470 per month, plus food stamps, 

severely restricting her ability to contribute to the cost of 

the child's education. However, the mother had used the weekly 

child support payments to help pay for the child's food, 

shelter, and other living expenses. The mother did not indicate 

if the child had any assets or income. She mentioned the father 

was a practicing dentist, but did not know his income. 

The father's position was straightforward. In his view, 

because the child had graduated from college, she was 

emancipated under the terms of the parties' agreement. 

Therefore, he maintained his obligation to pay child support 

should be terminated. 

The trial court granted the father's motion to emancipate 

the child and to terminate his obligation to pay child support. 

The trial court held the child's emancipation was "guided by the 

agreement [the parties] entered into back in 1992. . . . Once 

she graduated from college, not post graduate, . . . the support 

obligation would stop. . . . Typically, under the laws of 

emancipation there would be some other considerations, but the 

agreement is what it is."
5 A-3337-15T1

II

The mother challenges the court's determination to 

emancipate the child and terminate the father's child support 

obligation. Specifically, she contends the court erred by 

focusing on only the parties' agreement to determine the child 

was emancipated upon her graduation from college. The mother 

maintains the court should have utilized the factors provided by

decisional authority addressing emancipation, such as Newburgh 

v. Arrigo, 88 N.J 529 (1982), to determine if the child was in 

fact emancipated and, if not, whether the father was obligated 

to contribute to the cost of graduate school. She also 

complains the court failed to rule on the other points of relief 

she sought in her notice of cross-motion. 

The father argues the parties' agreement is binding and 

thus dispositive on the issue of the child's emancipation. He 

also notes that, because there is no relationship between him 

and the child, not to mention the child failed to discuss going 

to graduate school with him before she enrolled in the graduate 

program, under Newburgh, he is not required to contribute to the 

cost of graduate school, including paying child support. 

At the outset, we review the fundamental legal principals 

governing the issues under review. We generally defer to a 

trial court's findings of fact, unless they are demonstrated to 
6 A-3337-15T1

lack support in the record or are inconsistent with the 

substantial, credible evidence. Rova Farms Resort, Inc. v. 

Inv'rs Ins. Co., 65 N.J. 474, 483-84 (1974). However, we owe no 

special deference to a trial court's "interpretation of the law 

and the legal consequences that flow from established facts." 

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 

378 (1995). 

"One of the fundamental concepts in American society is 

that parents are expected to support their children until they 

are emancipated, regardless of whether the children live with 

one, both, or neither parent." Burns v. Edwards, 367 N.J. 

Super. 29, 39 (App. Div. 2004) (citing Dunbar v. Dunbar, 190 

U.S. 340, 351, 23 S. Ct. 757, 761, 47 L. Ed. 1084, 1092 (1903)). 

"[A] parent is obliged to contribute to the basic support needs 

of an unemancipated child to the extent of the parent's 

financial ability." Martinetti v. Hickman, 261 N.J. Super. 508, 

513 (App. Div. 1993). 

Parents may agree child support is to terminate upon the 

occurrence of a certain event, but the right of a child to be 

supported by his or her parents is one that belongs to the child 

and cannot be waived by the custodial parent. Patetta v. 

Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003) (citing Pascale 

v. Pascale, 140 N.J. 583, 591 (1995)). A child's right to 
7 A-3337-15T1

support is not "defeated merely because both parents are united 

in their determination to declare the child emancipated." 

Johnson v. Bradbury, 233 N.J. Super. 129, 136 (App. Div. 1989). 

"[T]he parental duty to support a child may not be waived or 

terminated by a property settlement agreement." Patetta, supra, 

358 N.J. Super. at 95; see also Martinetti, supra, 261 N.J. 

Super. at 512 (finding right to child support not barred by a 

property settlement agreement providing for the termination of 

support when the child turned eighteen). 

When a child reaches eighteen, the age of majority in this 

State, a parent can establish "prima facie, but not conclusive, 

proof of emancipation," see Newburgh, supra, 88 N.J. at 543 

(citing Alford v. Somerset Cty. Welfare Bd., 158 N.J. Super.

302, 310 (App. Div. 1978), and the burden of persuasion shifts 

to the party seeking to maintain support to rebut the 

presumption of emancipation. Filippone v. Lee, 304 N.J. Super.

301, 308 (App. Div. 1997).

 At that point, in determining whether a child is 

emancipated, "the essential inquiry is whether the child has 

moved 'beyond the sphere of influence and responsibility 

exercised by a parent and obtains an independent status of his 

or her own.'" Ibid. (quoting Bishop v. Bishop, 287 N.J. Super.

593, 598 (Ch. Div. 1995)). Such a "determination involves a 
8 A-3337-15T1

critical evaluation of the prevailing circumstances including 

the child's need, interests, and independent resources, the 

family's reasonable expectations, and the parties' financial 

ability, among other things." Dolce v. Dolce, 383 N.J. Super.

11, 18 (App. Div. 2006) (citing Newburgh, supra, 88 N.J. at 

545). 

"[W]hile parents 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." 

Patetta, supra, 358 N.J. Super. at 94. Contributing toward the 

cost of a higher education, including graduate school, is a form 

of support for an unemancipated child. Gac v. Gac, 186 N.J.

535, 542 (2006). "In appropriate circumstances, parental 

responsibility includes the duty to assure children of a college 

and even of a postgraduate education such as law school." 

Newburgh, supra, 88 N.J. at 544. 

However, before considering whether a parent is required to 

contribute toward the child's support or higher education, the 

question whether the child is emancipated must be answered. 

If the child is emancipated, the child's parents have no 

obligation to contribute toward the support of that child, 

including his or her higher education. But if the child is 

unemancipated and is seeking a parent's contribution toward 
9 A-3337-15T1

higher education, "the next consideration is whether the child 

has an aptitude for college." Ricci v. Ricci, 448 N.J. Super.

546, 573 (App. Div. 2017). If so, "then parental ability to 

afford the significant cost of college must be examined; it is 

not presumed." Ibid. To determine the extent to which a parent 

is to contribute toward a higher education, the factors in 

Newburgh must be considered.1 Ibid.

 

1 These factors are: 

(1) whether the parent, if still living with 

the child, would have contributed toward the 

costs of the requested higher education; (2) 

the effect of the background, values and 

goals of the parent on the reasonableness of 

the expectation of the child for higher 

education; (3) the amount of the 

contribution sought by the child for the 

cost of higher education; (4) the ability of 

the parent to pay that cost; (5) the 

relationship of the requested contribution 

to the kind of school or course of study 

sought by the child; (6) the financial 

resources of both parents; (7) the 

commitment to and aptitude of the child for 

the requested education; (8) the financial 

resources of the child, including assets 

owned individually or held in 

custodianship or trust; (9) the ability of 

the child to earn income during the school 

year or on vacation; (10) the availability 

of financial aid in the form of college 

grants and loans; (11) the child's 

relationship to the paying parent, including 

mutual affection and shared goals as well as 

responsiveness to parental advice and 

guidance; and (12) the relationship of the 
10 A-3337-15T1

Here, the court determined the child was emancipated 

because the parties agreed she would be once she finished 

college. However, the fulfillment of one of the parties'

definitions of emancipation – graduation from college – was not 

dispositive of the issue of the child's emancipation. As 

previously stated, the right to child support belongs to the 

child, not the parent, and cannot be waived by an agreement 

between the parents. 

The court was obligated to examine whether the child was in 

fact emancipated and, if the child is found unemancipated, 

calculate the amount of support she needs and each parent's 

obligation toward that need. The court must examine the child's 

needs and financial resources to determine the extent of the 

child's financial dependence upon her parents, if any, as she 

continues her educational endeavors. Many graduate programs 

provide teaching assistant positions and other earning 

opportunities allowing students to defray living 

expenses. Also, the child's ability to earn income, now that 

 

education requested to any prior training 

and to the overall long-range goals of the 

child. 

[Newburgh, supra, 88 N.J. at 545.]
11 A-3337-15T1

she has completed undergraduate education, must be weighed when 

examining the extent of the child's need for support. 

Thereafter, there must be an examination of whether either 

parent is obligated to contribute toward the cost of her higher 

education, after taking into consideration the Newburgh factors. 

These factors govern the outcome and whether and to what extent 

the parties are required to contribute toward graduate school 

costs. 

In addition, the father and child have never had a 

relationship. Why that is so may be relevant on the question of 

whether the father is required to contribute toward the cost of 

the child's higher education. See Philipp v. Stahl, 344 N.J. 

Super. 262, 272-73 (App. Div. 2001) (finding the absence of a 

relationship between parent and child is "one of the many 

factors to be considered when determining post-secondary 

support"), rev'd on other grounds, 172 N.J. 293 (2002). Here, 

if the child is deemed unemancipated and a party considers the 

relationship between the father and child material on the 

question of whether the father should contribute to the child's 

higher education costs, he or she may raise such issue.

Accordingly, for the reasons provided, we reverse the March 

2, 2016 order and remand the matter for further proceedings 

consistent with this opinion. 
12 A-3337-15T1

Finally, the mother complains the court did not address the 

other points raised in her notice of cross-motion including, 

among other things, her request for child support arrears that 

accrued before the court terminated child support. We agree the 

court did not explicitly rule on this and other requests, 

although many were implicitly denied when the court granted the 

father's motion and declared the child emancipated. On remand, 

the court shall make explicit rulings on the requests for relief 

listed in the mother's notice of cross-motion. 

Reversed and remanded for further proceedings consistent 

with this opinion. We do not retain jurisdiction.