Turner v. McCune, 4 Mass. App. Ct. 864

Turner v. McCune

4 Mass. App. Ct. 864 | Mass. App. Ct. | 1976

That portion of the parties’ separation agreement which gave rise to this action provided, inter alia, that the defendant’s obligation to support their son shall cease upon “the emancipation of the child before age 21” (emphasis supplied). No serious argument is made that the son is financially emancipated. Although, in his answer, the defendant denied the allegation that the son is not emancipated, his affidavit failed to allege specific facts showing that the son is, indeed, financially emancipated. The defendant claims only that emancipation occurred as matter of law when the son reached eighteen in June, 1974, by virtue of the lowering of the age of majority in this Commonwealth from twenty-one to eighteen.1 We need not decide whether our law applies or the law of New Jersey where the agreement was executed and where the plaintiff and the defendant last lived together in 1961 *865prior to their divorce. Molinar v. Western Elec. Co. 525 F.2d 521, 527-528 (1st Cir. 1975), cert. den. 424 U. S. 978 (1976). Under New Jersey law, as under ours, there is no fixed age when emancipation occurs. It does not occur automatically upon reaching the age of majority. Straver v. Straver, 26 N.J. Misc. 218, 222 (Ch. 1948). Schumm v. Schumm, 122 N. J. Super. 146, 150 (Ch. 1973). Consequently, neither the change in the age of majority in New Jersey from twenty-one to eighteen (N.J. Stat. Ann. 9: 17B-1, inserted by L. 1972, c. 81, § 1, effective January 1, 1973) nor the corresponding change in our law automatically relieved the defendant of his support obligation. As the defendant has observed in his brief, attaining the age of majority in New Jersey is only prima facie evidence of emancipation. Goldstein v. Goldstein, 4 N.J. Misc. 711, 712 (Sup. Ct. 1926). Straver, supra, at 222. Schumm, supra. To avoid summary judgment, an opposing party may not rest on his pleadings or general denials. He must set forth specific facts showing that there is a genuine triable issue. Community Natl. Bank v. Dawes, 369 Mass. 550, 553 (1976). It follows, since the defendant’s affidavit did not set forth facts showing actual emancipation, that no genuine issue as to a material fact was raised (Mass.R.Civ.P. 56 [c], 365 Mass. 824 [1974]), and that summary judgment was correctly entered in the Probate Court for the plaintiff. The judgment, however, is to be modified to reflect, as the present judgment does not, the possibility of the occurrence, prior to the son’s reaching twenty-one, of any of the conditions set forth in the agreement which would release the defendant from his obligation to provide further support for the son until he reaches that age.

Allen C. B. Horsley for the defendant. Raymond H. Young (Katherine L. Babson, Jr., with him) for the plaintiff.

So ordered.

G. L. c. 4, § 7, Fifty-First, inserted by St. 1973, c. 925, § 1, effective January 1, 1974. See G. L. c. 231, § 85P, inserted by St. 1975, c. 315, § 1, effective January 1,1974. See now St. 1976, c. 279.