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Mark v. Mark

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 12, 2007

STEVEN MARK, PLAINTIFF-APPELLANT,
v.
MARIA MARK, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2552-98.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 14, 2007

Before Judges Skillman and Winkelstein.

This is an appeal from a post-judgment order in a matrimonial action. The parties were divorced in 1999. Two children were born of the marriage, Liana and Lauren. The judgment of divorce incorporated a property settlement agreement which obligated plaintiff to pay defendant child support and also contribute to the costs of his childrens' college educations.

Plaintiff filed a motion for a declaration that his older child, Liana, who was then twenty-one years of age, was emancipated and for termination of his support obligations with respect to her. Defendant filed a cross-motion for enforcement of plaintiff's obligation to contribute to the costs of Liana's college education.

The trial court denied plaintiff's motion in most respects and granted defendant's motion in most respects. The court ordered plaintiff to continue payment of child support for Liana until May 2008 (the end of Liana's fourth year of pharmacy school) and pay 36% of her post-secondary education expenses. Plaintiff appeals from three paragraphs of the order memorializing the trial court's rulings, entered on January 16, 2007, which provide:

2. Liana shall remain unemancipated until the completion of her fourth year of the pharmacy program, which is anticipated to be May of 2008. Therefore, plaintiff's child support obligation for Liana will be TERMINATED on that date. Either party may file for modification of child support upon the older child's emancipation in May of 2008. The obligation to pay child support terminates upon emancipation of the child for whom the obligation is due. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982); Cafaro v. Cafaro, 118 N.J.L. 123, 124 (E. & A. 1937).

4. Plaintiff shall pay defendant $3,103.00 for Liana's out of pocket college room and board costs for the 2006 to 2007 school year within sixty (60) days of the date of this order.

5. Plaintiff shall reimburse defendant $6,060.00 for his 36% responsibility of Liana's out of pocket college room and board costs, and meal plan costs for the college periods of Fall 2004 to Spring 2005 and Fall 2005 to Spring 2006, said by defendant. The Probation Department shall adjust its records and add this amount to plaintiff's arrearages.

Although some of the trial court's rulings were adverse to defendant, she did not file a cross-appeal.

Plaintiff presents the following arguments in support of his appeal:

I. GRANT EMANCIPATION OF MY DEPENDANT CHILD, LIANA F. MARK, DOB 11/19/1985, RETROACTIVE TO THE DATE THAT SHE ATTAINED THE AGE OF TWENTY-ONE, (NOVEMBER, 2006), AS SPECIFICALLY STIPULATED AND MUTUALLY AGREED UPON IN OUR MUTUAL FINAL JUDGMENT OF DIVORCE.

II. ORDER THAT ALL MONIES HAVING BEEN PAID TO THE RESPONDENT AFTER THE DATE AT WHICH EMANCIPATION IS GRANTED, TO BE REIMBURSED AND/OR CREDITED BACK TO THE APPELLANT.

III. VACATE THE ORDER TO REIMBURSE TO THE RESPONDENT THE AMOUNT OF $6,060.00 FOR COSTS ASSOCIATED WITH THE DEPENDANT CHILD'S EDUCATION FEES FOR THE FALL 2004 THROUGH FALL 2006 SCHOOL SEMESTERS. THESE COSTS HAVE ALREADY BEEN SATISFIED WITH MONIES PROVIDED BY THE APPELLANT AS IS CLEARLY STATED IN THE RESPONDENT'S OWN "CROSS MOTION" TO THE COURT.

IV. WITH EMANCIPATION BEING GRANTED, VACATE THE ORDER TO PROVIDE $3,103.00 FOR THE DEPENDANT CHILD'S EDUCATIONAL FEES FOR THE SPRING "2007" SCHOOL SESSION, AS THE APPELLANT WOULD NO LONGER [BEAR] RESPONSIBILITY FOR EDUCATIONAL COSTS INCURRED AFTER THE DATE OF EMANCIPATION.

Plaintiff's arguments are clearly without merit and do not warrant extended discussion. R. 2:11-3(e)(1)(E). However, we briefly comment upon plaintiff's principal points.

In arguing that the trial court erred in denying his motion for a declaration that Liana was emancipated upon attaining the age of twenty-one, plaintiff relies upon Part III, paragraph 2(B), of the parties' property settlement agreement, which states:

2. For purposes of this AGREEMENT, a Child born of the marriage shall be deemed emancipated upon the happening of anyone of the following events:

B. The completion of the Child's undergraduate college education or completion of a post-high school training program, or the attainment of the age of twenty-one (21) years, whichever shall occur first.

[Emphasis added.]

Plaintiff's argument is similar to an argument we rejected in Patetta v. Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003):

Plaintiff argues that the agreement between the parties contained in the property settlement agreement established the age of emancipation at eighteen and thereby terminates his obligation to pay support beyond his "best efforts" to pay college expenses. However, the right of support belongs to the child, not the custodial parent. As we said in Zazzo v. Zazzo, 245 N.J. Super. 124, 130, 584 A.2d 281 (App. Div. 1990), certif. denied, 126 N.J. 321, 598 A.2d 881 (1991), "there is no divorce between parent and child." The public policy of this State as derived from its parens patriae interest in the welfare of children prohibits parents from bargaining away the essential rights of their sons and daughters, including the right to be properly supported.

[Citations omitted.]

Therefore, "[w]hile courts are predisposed to uphold property settlement agreements," a provision relating to child support is subject to "judicial supervisory control" to assure proper discharge of the parental duty of child support. Id. at 95. We conclude that the trial court did not abuse its discretionary authority to supervise the discharge of plaintiff's child support obligations in denying his motion to declare Liana emancipated upon attaining the age of twenty-one even though she is still enrolled in an undergraduate program of college education.

Plaintiff also argues that the trial court erred in awarding defendant $6,060, which represents 36% of Liana's college education expenses for the 2004-05 and 2005-06 school years, because defendant did not request such relief in her cross-motion. However, defendant's cross-motion sought enforcement of her rights under the property settlement agreement, which obligated plaintiff to pay not only child support but also a portion of Liana's college education expenses. Although defendant's "explanation of facts" in support of her motion may have suggested that she was only seeking recovery of those expenses starting in the spring of 2007, the pleadings of pro se litigants should be liberally construed. See Rubin v. Rubin, 188 N.J. Super. 155, 159 (App. Div. 1982). Therefore, the trial court did not abuse its discretion in requiring plaintiff to reimburse defendant for a portion of Liana's expenses for the first two years of college. Lastly, defendant argues that the $400 per month that he was allegedly paying as child support for Liana should be credited against his obligation for her college expenses. A child's residence away from home while attending college may provide a basis for a reduction in the amount of a parent's child support obligation. See Finger v. Zenn, 335 N.J. Super. 438, 441-42 (App. Div. 2000), certif. denied, 167 N.J. 633 (2001). However, the parent must make a timely application for such relief. N.J.S.A. 2A:17-56.23a (prohibiting retroactive modification of child support orders); see Mallamo v. Mallamo, 280 N.J. Super. 8, 13-14 (App. Div. 1995) (discussing the ramifications of failing to make a timely application for a reduction in child support). Plaintiff never applied for reduction of his support obligation for Liana, and we perceive no equitable basis for granting such relief at this late date. Accordingly, paragraphs two, four and five of the January 16, 2007 order are affirmed.

20071212

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