Opinion
DOCKET NO. A-3961-12T1
02-17-2016
DEBRA A. PAGLIARO, Plaintiff-Respondent, v. WILLIAM C. DeBOER, Defendant-Appellant.
William C. DeBoer, appellant pro se. Debra A. Pagliaro, respondent pro se. Andrea I. Bazer, Monmouth County Counsel, attorney for respondent Monmouth County Division of Social Services (Patrick J. Boyle, Counsel; Margaret A. Freeman, Senior Associate Counsel; and Kia A. King, Associate Counsel, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Manahan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FD-13-1575-00. William C. DeBoer, appellant pro se. Debra A. Pagliaro, respondent pro se. Andrea I. Bazer, Monmouth County Counsel, attorney for respondent Monmouth County Division of Social Services (Patrick J. Boyle, Counsel; Margaret A. Freeman, Senior Associate Counsel; and Kia A. King, Associate Counsel, on the brief). PER CURIAM
Defendant William DeBoer appeals from a March 21, 2013 Family Part order obligating him to pay child support arrears. We affirm.
We recite the extensive procedural history for the purpose of context. Nathaniel Pagliaro (formerly Nathaniel DeBoer), born in 1987, is the biological son of defendant and plaintiff, Debra Pagliaro. On May 22, 1990, a Family Part judge ordered defendant to pay child support and provide medical coverage for Nathaniel.
For purpose of confidentiality, we utilize a fictitious name for the parties' son.
Defendant filed an affidavit requesting custody of Nathaniel and seeking to vacate child support on October 8, 1992. On December 24, 1992, a Family Part judge granted defendant temporary custody and vacated child support retroactive to July 1992, without prejudice to plaintiff's right to re-petition if custody should change again.
Sometime between 1992 and 2000, plaintiff, who had relocated to Florida, regained custody of Nathaniel. On January 12, 2000, plaintiff executed a Uniform Support Petition recognized by the federally mandated Uniform Interstate Family Support Act (UIFSA), N.J.S.A. 2A:4-30.65 to -30.123, seeking paternity testing, child support, medical coverage, income withholding, and retroactive support. The petition was subsequently filed in New Jersey by the State of Florida on behalf of plaintiff on or about March 6, 2000. On June 20, 2000, a child support hearing officer recommended that defendant pay $131 in child support and an additional $15 in arrears payments, as well as 83% of Nathaniel's medical coverage. Defendant appealed the decision, and on July 17, 2000, another Family Part judge ordered defendant to pay child support in the amount of $78 per week effective September 15, 2000, as well as medical coverage for Nathaniel.
According to their testimony at the March 20, 2013 hearing, defendant moved to St. Croix, Virgin Islands in 2001, and plaintiff moved to Florida with Nathaniel in 1997 or 1998.
Defendant filed an application to vacate child support on December 13, 2001, stating that he could not afford the $78 weekly payments. The matter was dismissed on April 10, 2002, for lack of prosecution. In August 2005, defendant sent correspondence from his residence in St. Croix, Virgin Islands, requesting that Nathaniel be emancipated because he turned eighteen and did not live with plaintiff. However, defendant did not file a motion seeking this relief.
Defendant filed a motion on September 3, 2008, to terminate child support and to emancipate Nathaniel, alleging that Nathaniel did not live with plaintiff and that plaintiff had been incarcerated for over two years in Florida. The outcome of that motion is unclear from the record.
On February 15, 2010, defendant again moved to vacate his child support obligation and to have Nathaniel emancipated on the same grounds. On May 4, 2010, a child support hearing officer recommended dismissing the motion for lack of jurisdiction, and advised defendant to file a UIFSA application through the family court in the Virgin Islands seeking to register the order there and have it modified. Defendant appealed the recommendation. A Family Part judge affirmed the recommendation and dismissed the application for lack of jurisdiction on September 1, 2010.
Defendant filed a UIFSA petition in the State of New Jersey through the Department of Justice Paternity and Child Support Division in St. Croix, Virgin Islands on November 20, 2012, seeking emancipation and termination of child support arrears. On February 5, 2013, a hearing officer recommended dismissing the petition for lack of jurisdiction, stating that defendant failed to follow the advice of the previous hearing officer. Defendant appealed the recommendation. The matter was heard by a Family Part judge on March 20, 2013, with both parties appearing telephonically for the hearing. Also appearing was an attorney for the Office of the Attorney General for the Virgin Islands (telephonically), and an attorney for the Monmouth County Division of Social Services as the State IV-D agency pursuant to N.J.S.A. 2A:4-30.85.
At the hearing, defendant continued to seek emancipation and termination of child support, arguing that Nathaniel did not live with plaintiff and that plaintiff had been incarcerated in Florida. The judge reviewed Nathaniel's college transcripts, as well as two letters written by Nathaniel dated January 3 and February 28, 2013. The January 3 correspondence stated that Nathaniel decided to change his name, that his mother supported him, and that his grandparents never had custody or adopted him. In the February 28 letter, Nathaniel explained that he lived with defendant until he was in first grade, and that he attended "two, almost three years of college [part-time]." Nathaniel stated as well that he "was raised primarily by [his] grandparents."
The judge held the evidence presented was insufficient to substantiate defendant's allegation that Nathaniel did not live with his mother. The judge also held that while Nathaniel attended college until sometime in 2008, the records did not specify which semester he completed any courses. In the exercise of discretion, the judge emancipated Nathaniel effective June 30, 2008, and calculated a credit toward defendant's arrearage based on the effective date of emancipation.
At the time of the hearing, defendant owed $45,335 in child support. Based upon the date of emancipation, the judge gave defendant a credit of $26,429, leaving $18,906 due and owing. Defendant contested the date of emancipation, and also argued that he was entitled to additional credit for payments made. Plaintiff contested the amount calculated as well. An order consistent with the judge's ruling was entered on March 21, 2013. Defendant filed a Notice of Appeal on April 22, 2013. Plaintiff filed a cross-appeal, which was subsequently withdrawn. The Monmouth County Division of Social Services has filed a brief opposing defendant's appeal as the responding State IV-D agency pursuant to N.J.S.A. 2A:4-30.85.
In reviewing the decision of a family court, we "defer to the factual findings of the trial court," N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008), in recognition of the "family courts' special jurisdiction and expertise in family matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (citation and internal quotations omitted). "Concomitantly, reviewing courts should defer to the trial court's credibility determinations" as well. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). It is "[o]nly when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'" that we will intervene and make our own findings "to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)). However, "[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., 140 N.J. 366, 378 (1995). "It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support" the judge's decision. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012).
In his brief, defendant argues he is owed $54,000 in child support because plaintiff was incarcerated and Nathaniel lived with his grandparents. We disagree.
N.J.S.A. 2A:17-56.23a, the anti-retroactive child support statute, provides:
No payment or installment of an order for child support, or those portions of an order which are allocated for child support . . . shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed either directly or through the appropriate agent.
"N.J.S.A. 2A:17-56.23a was enacted to insure that ongoing support obligations that became due were paid." Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995). We have held that the statute's applicability "is limited to prevent[ing] retroactive modifications decreasing or vacating orders allocated for child support." Keegan v. Keegan, 326 N.J. Super. 289, 291 (App. Div. 1999); see also Walles v. Walles, 295 N.J. Super. 498, 514 (App. Div. 1996) (finding the trial court's decision to retroactively reduce child support payments "violated the statutory mandate.").
A child's emancipation results in the complete termination of child support obligations. Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997); Newburgh v. Arrigo, 88 N.J. 529, 543 (1982); Schumm v. Schumm, 122 N.J. Super. 146, 149 (Ch. Div. 1973). Accordingly, the ban on retroactive reduction or elimination of child support in N.J.S.A. 2A:17-56.23a does not preclude termination of child support retroactively to the date of the child's emancipation. Mahoney, supra, 285 N.J. Super. at 643; see also Bowens v. Bowens, 286 N.J. Super. 70, 73 (App. Div. 1995). The trial court must establish the date of emancipation before determining whether retroactive termination is appropriate. See generally Monmouth Cty. Div. of Soc. Servs. ex. rel. Div. of Youth & Family Servs. v. C.R., 316 N.J. Super. 600 (Ch. Div. 1998).
Principles governing emancipation are well-settled. The determination of whether a child should be emancipated is a fact-sensitive one. Filippone, supra, 304 N.J. Super. at 308. Several well-established principles guide the court's inquiry, which is, essentially, "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)). The factual inquiry must necessarily include issues such as 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); see also Newburgh, supra, 88 N.J. at 545.
We have recognized that full-time or uninterrupted college attendance is not invariably required to forestall emancipation. See Keegan, supra, 326 N.J. Super. at 295 (holding that a hiatus from college during which the child worked full-time did not result in emancipation); see also Sakovits v. Sakovits, 178 N.J. Super. 623, 631-32 (Ch. Div. 1981) (suggesting a "brief hiatus" between high school and college, which is becoming more common, should not foreclose parental support, but it was "inappropriate to require plaintiff to contribute to [the child's] college education" where the child took a four-year hiatus, remained continuously employed, and expressed no interest in a college education).
The court must consider the reasons for the child's less than full-time enrollment, or the child's interrupted attendance, as well as other factors, in resolving the essential inquiry of the child's independence. See Patetta v. Patetta, 358 N.J. Super. 90, 93-94 (App. Div. 2003) ("The demonstrable needs of the child . . . are determinative of the duty of support."). On the other hand, a child's lack of commitment to his or her education, or the unexcused failure to remain a diligent full-time student, may be a basis for emancipation. See e.g., Filippone, supra, 304 N.J. Super. at 311-12.
In Mahoney, supra, 285 N.J. Super. at 643, we held that "N.J.S.A. 2A:17-56.23a does not bar the cancellation of child support arrearages which accrued subsequent to the date of the minor's emancipation as retroactively determined by the court." The statute assumes an obligation to support the child, but when the obligation is no longer present due to emancipation, then the subsequently accrued arrears can be cancelled. Ibid.
At the March 20, 2013 hearing, the judge was presented with records of Nathaniel's college attendance, as well as correspondence from Nathaniel. The judge also had the benefit of hearing testimony from the parties. Based upon the evidence presented and factoring its imprecision as to Nathaniel's college attendance, the judge determined that Nathaniel was emancipated as of June 30, 2008, and recalculated defendant's child support obligations retroactive to that date.
We accord due deference to the court's fact finding. Cesare v. Cesare, 154 N.J. 394, 413 (1998). Consistent with that deference and after consideration of the record and applicable law, we conclude there is no basis to disturb the judge's determination regarding emancipation and the continuing obligation of defendant to pay arrears. That determination was not so clearly mistaken or wide of the mark as to require us to supplant the judge's decision with our own. E.P., supra, 196 N.J. at 104.
Notwithstanding that both parties and Nathaniel no longer reside in New Jersey, we note that the judge had jurisdiction to determine the date of emancipation as it was a non-modifiable aspect of the original order. See N.J.S.A. 2A:4-30.72; Youssefi v. Youssefi, 328 N.J. Super. 12, 21-22 (App. Div. 2000). We decline to address whether the judge had continuing jurisdiction to amend the child support arrears prior to the date of emancipation, as that is not an issue raised by either party.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION