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Bengis v. Bengis

Decided: August 11, 1987.

KATHLEEN BENGIS, PLAINTIFF-APPELLANT,
v.
RICHARD BENGIS, DEFENDANT-RESPONDENT, JAMES MCGETTIGAN, PLAINTIFF-RESPONDENT, V. KATHLEEN MCGETTIGAN, DEFENDANT-APPELLANT



On appeal from the Superior Court, Chancery Division, Family Part, Atlantic County.

Antell, Long and D'Annunzio. The opinion of the court was delivered by Long, J.A.D.

Long

On appeal in this post-judgment matrimonial action, plaintiff, Kathleen Bengis McGettigan challenges an order of the trial judge which held her former husband, defendant, Richard Bengis responsible for past and future child support for the children of their marriage and relieved James McGettigan (plaintiff's new husband) from any child support obligation.

Plaintiff and defendant were divorced in 1977. Plaintiff married James McGettigan in 1982. McGettigan filed a complaint to dissolve that marriage in November, 1985. Plaintiff filed an answer to the McGettigan complaint, asserting that McGettigan stood in loco parentis to her children and was

therefore equitably estopped from denying them support. She also filed a pendente lite motion for support and maintenance.

In February 1986 the trial judge entered a pendente lite order requiring McGettigan to pay various shelter expenses as well as the tuition and other fees for the children at parochial school. Plaintiff then moved to reopen her first divorce judgment seeking arrearages and child support which had accrued since the date of termination of child support, May 1982, and further seeking an increase in child support from defendant. Defendant submitted a certification in opposition alleging that he discontinued child support and terminated all of his parental rights in reliance on an agreement between the parties. These two matrimonial actions were consolidated and a plenary hearing was scheduled.

At the hearing, the following facts were elicited. Plaintiff was married to defendant in September, 1969. They separated in 1972 when their daughters, Francine and Antoinette, were two and three years old, respectively. Defendant joined the Marine Corps one day after the separation agreement was executed and did not appear at the divorce proceedings, which resulted in a judgment of divorce entered March 22, 1977. After the divorce, defendant consistently paid child support in the sum of $140 per month and visited the children at various times, although he had moved to Georgia after being discharged from the Marine Corps in January 1978.

Plaintiff began dating McGettigan in 1978 when the children were six and seven years old. From 1978 until 1982, when they married, plaintiff and the children would stay at McGettigan's apartment every weekend. They all vacationed together. Prior to his marriage to their mother, McGettigan spoke to both children and asked if they would like to be called "McGettigan." Both children responded affirmatively. One of the daughters, Francine, testified that a few months before the marriage McGettigan had told them that they were to be adopted and she and her sister approved.

McGettigan testified that he had spoken to the children about a name change on a couple of occasions but that he had made no firm plans for adoption. He admitted that the children wanted to be called McGettigan and utilized his last name in several contexts, including religious confirmation and communion and enrollment in a beauty pageant.

Plaintiff and McGettigan were married in 1982. After the marriage the girls began calling McGettigan "dad" and referring to their natural father as "Richie." Francine testified that her friends in fifth grade called her "soon to be a McGettigan" and she signed her Santa Claus letter that way.

In May 1982 defendant was audited by the IRS because both he and the plaintiff were listing the children as exemptions on their federal income tax returns. Defendant called plaintiff and eventually spoke to McGettigan who discussed the tax exemptions as well as his desire to adopt the children and change their name. At first, defendant was totally against this but later decided that if that was what the children wanted, he would agree to it.

During the summer of 1982 defendant and his second wife, Susan, visited New Jersey and took the two girls to the beach while plaintiff and McGettigan were at work and were unaware of where the girls had gone. The ensuing phone conversation involved both natural parents, their spouses and the two children. Fifteen-year-old Francine described the incident in her testimony:

A. The only discussion I can recall was in the summer of '82 on the -- after my father, Richie, had come to take us -- he took us to the beach and nobody knew where we were that day. When we came back from the beach my sister and I both went upstairs to the apartment where we were living at, and my dad was really angry that Richie had come and taken us out. And he, one of the main things was he said, "I thought I was your father now," and he didn't think it was right for us to see Richie anymore. So he contacted Richie and asked him, well told him, that he -- that we wanted to be adopted by him and that he wanted to adopt us. And Richie said well he wouldn't believe it until he heard it from me and my sister. So Jimmy and ...


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