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Smith v. Smith

June 22, 2007

CHERYL SMITH, (N/K/A MUNROE), PLAINTIFF-RESPONDENT,
v.
GREGORY G. SMITH, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FM-07-891-96.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 31, 2007

Before Judges Sabatino and Lyons.

Defendant, Gregory G. Smith ("father"), appeals a May 8, 2006 order of the Family Part concerning child support and college expenses, and the Family Part's subsequent July 24, 2006 order denying him reconsideration and also awarding counsel fees to his ex-wife, defendant Cheryl Smith ("mother").*fn1 We affirm, without prejudice to future applications in the Family Part that may be justified because of any sufficiently changed circumstances.

The parties were married in February 1984. Their marriage produced two children, a daughter born July 15, 1984 and a son born June 5, 1987. The parties were divorced on November 10, 1997. Pursuant to the agreed-upon final judgment of divorce (FJD) the mother retained residential custody of the children. As part of the divorce settlement, the father agreed to pay the mother $320 per month in child support, plus half of the children's reasonable medical, dental and clothing expenses. The FJD did not address the parties' future obligations for the children's higher education.

The father moved to New York in the mid-1990's, where he has since been engaged in the private practice of law. He remarried in November 2003. His present wife is a physician. The two of them have a child that was born on May 16, 2006.

Meanwhile, the mother remained in New Jersey. She has ceased working as the result of severe health problems, having been diagnosed with chronic and end-stage renal disease, chronic heart failure, asthma, hypertension and other debilitating conditions. She is dependent upon three weekly dialysis treatments to survive. In October 2000 the Social Security Administration declared the mother totally disabled and unable to hold a full-time job over any extended period of time. At the time the motions now on review were decided, the mother was subsisting on Social Security disability payments of $1,114 per month, plus child support from the father which the Family Part had increased in April 2004 to $353.50 per week because of her disability.

The parties' two children have presented challenges. The daughter had a child as a teenager, although she was nonetheless able to pursue some college studies thereafter at Rutgers University. The father was ordered in April 2004 to pay eighty-three percent of the daughter's unfunded college expenses at Rutgers.*fn2 The son has had numerous academic and behavioral difficulties, which we need not detail at length in this opinion. He temporarily attended a military academy before his senior year, after which he resumed and completed high school.

The son enrolled, without prior consultation with his father, at Howard University in the fall of 2005. The mother then forwarded to the father the son's tuition bill and demanded that he pay it. Without waiving his rights, the father deposited a $5000.00 lump sum into the mother's Probation account, intending those monies to be used towards the son's tuition. After his first semester at Howard, the son was placed on academic probation because of failing grades, making him temporarily ineligible for financial aid.*fn3

As time progressed, the father fell behind in his financial obligations to the mother. He contends that he sustained a downturn in his law practice and that he could not afford the combined burdens of funding both the $353.50 weekly child support payments as well as college expenses for his children. He also asserts that his children have not maintained adequate communication with him and, in particular, that he has not been timely consulted about his son's academic circumstances.

In November 2005 the mother filed a motion to increase support, and also to compel the father to pay for all of the son's unfunded college expenses. The father filed a cross-motion opposing that relief, and seeking, among other things, a downward reduction in child support to reflect his financial contributions towards the college expenses. The father also sought to emancipate both children.*fn4 As part of his contentions, the father asserted that his law practice recently had become less profitable because of various factors, including his removal from the list of designated counsel for appointment in federal criminal cases.

After efforts over several months to attempt to settle the parties' disputes failed, the Family Part heard argument on May 2, 2006. Both parties were then represented by counsel. Judge James Troiano considered numerous certifications submitted on the mother's motion and the father's cross-motion, including financial data and tax returns. The judge declined the father's request for a plenary hearing, observing the absence of "any significant factual issue that would necessitate" the presentation of live testimony.

After considering the parties' submissions and arguments, Judge Troiano issued an oral ruling on May 8, 2006. Among other things, the ruling declared the parties' daughter emancipated, but found that the son, who continued to reside with his mother when not at school, was still unemancipated.*fn5 The judge held that the father should pay $330.66 weekly in child support to the mother. The judge further held that the father should be responsible for the son's unfunded college tuition, but only after the ...


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