On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FD-15-1126-85C.
Before Judges Wecker, S.L. Reisner and Graves.
The opinion of the court was delivered by: S.L. Reisner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff Gina Christensen's ex-husband, David Christensen, appeals an order that he pay child support for plaintiff's daughter, although the child is the biological offspring of another man, Douglas Tymczak.*fn1 We reverse in part and remand to the trial court for further proceedings consistent with this opinion.
The child, Jenna (a seventeen year old high school student at the time of trial), was born in 1985 to plaintiff and Tymczak, who lived together but were never married to each other. Tymczak paid child support until 1994, when the support obligation was terminated at plaintiff's request. At that time plaintiff and Jenna had been living with Christensen since 1990; they married in 1992. In 1994, all the legal work had been completed for Christensen to adopt Jenna, including Tymczak's signature on a document giving up his parental rights to Jenna, but Christensen backed out at the last minute because he did not want to be fingerprinted. Although the adoption was never finalized, Tymezak was not told until 2001, when plaintiff asked him for financial help. She and Christensen had separated in 2001 and were divorced in 2002. Plaintiff sued Tymczak for child support. The trial judge sua sponte issued an order adding Christensen as a defendant based upon her conclusion that he was an indispensable party.
Relying on Miller v. Miller, 97 N.J. 154 (1984), the trial court concluded that Christensen was equitably estopped from denying his obligation to support Jenna. The trial court found that, at Christensen's instance, Jenna was prevented from seeing her natural father, whom Christensen called a"scumbag." The judge also found that Jenna's mother, the plaintiff, agreed to stop accepting child support from Tymczak, based on Christensen's representation that he was going to adopt Jenna. The trial court did not believe Christensen's testimony that he did not know about plaintiff's letter waiving Tymczak's child support obligation. The judge also found that Christensen and Jenna consistently behaved toward each other as father and daughter for twelve years. The judge concluded that, since he cut his stepdaughter off from seeing her natural father, and induced her to rely on his emotional and financial support, he was equitably obligated to continue supporting her.
Although the trial judge required Christensen and Tymczak to file, under seal, case information statements setting forth their financial circumstances, she specifically indicated that she would not consider them in connection with her determination on the issue of equitable estoppel, but only for the purpose of determining the amount of child support to be paid by whichever defendant she found liable to pay child support.*fn2
After determining that Christensen was responsible to pay child support, she ordered him to pay interim child support of $159 per week, pending entry of a final decision on the appropriate level of support. She directed plaintiff to submit additional information concerning Jenna's current educational situation, her income from part-time employment, and whether she would be seeking support for college expenses. At the time this appeal was filed, the trial court had not yet entered a final order concerning child support. Consequently, we conclude that this appeal is interlocutory and should have been pursued by motion for leave to appeal. R. 2:2-4. However, in light of the effort and expense incurred by all parties, the passage of time, and the significant issues presented, we grant leave to appeal nunc pro tunc.
After reviewing the trial transcript, and deferring to the trial judge's credibility determinations, we conclude that the record supports the trial judge's factual conclusions. See Cesare v. Cesare, 154 N.J. 394, 412 (1998). We also note the following additional testimony, which the trial judge did not mention in her decision. Tymczak testified that he relied to his detriment on his understanding that Jenna had been adopted and that he had no further child support obligation. At the time he signed the papers giving up his parental rights to Jenna, he was married and had two children. He testified that, believing he had no child support obligation for Jenna, he and his wife decided to have a third child, since they could now afford this additional financial responsibility. The trial court made no finding concerning the credibility of this testimony. The trial court also made no finding as to Tymczak's current financial ability to pay child support, particularly in light of his additional financial obligations to his second family.
As noted earlier, the trial court's decision in this case was interlocutory, since she did not enter a final order for child support. Rather, she entered an interim order for $159 per week to be paid by Christensen, and ordered the parties to submit additional information concerning Jenna's current educational situation, her income, and whether she might be seeking support for college expenses. We do not, in this opinion, disturb the interim child support order, because it may have been appropriate to order Christensen to pay interim support even if he is not ultimately responsible to pay permanent support. See M.H.B. v. H.T.B., 100 N.J. 567, 579-80 (1985); Miller, supra, 100 N.J. at 167. If Tymczak has some financial ability, but lacks ability to pay Jenna's full need because of his obligation to support his third child, or for other reasons, it is also possible that he and Christensen both may be obligated to contribute to Jenna's support. But we cannot answer any of these questions on the present record, because the trial judge has made no findings concerning the critical issue of Tymczak's financial situation.
The Supreme Court articulated the test for equitable estoppel in Miller v. Miller:
To be entitled to permanent child support, [the plaintiff], as the party alleging equitable estoppel, has the burden to prove that [the step-father/ex-husband's] conduct established the three prerequisites to ...