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Kacmarcik v. Kacmarcik


August 5, 2008


On appeal from Superior Court of New Jersey, Chancery Division-Family Part, Passaic County, FM-16-1681-06.

Per curiam.


Submitted March 5, 2008

Before Judges Axelrad and Payne.

Defendant Ronald Kacmarcik (father) appeals from an order, entered on April 13, 2007 by Family Part Judge Diamond, denying his motion to emancipate his nineteen-year-old son. On appeal, the father claims that the judge erred when he refused to emancipate the son, and that an amended separation agreement of August 10, 1998 between him and the child's mother, plaintiff Joy Kacmarick (mother), and a subsequent consent order of December 10, 2006 did not change the definition of emancipation set forth in the parties' Pennsylvania separation agreement as incorporated in the Pennsylvania decree of divorce. We affirm.

The parties were married in New Jersey in 1987, and their son was born here. In 1990, the couple moved to Pennsylvania, and in August 1993, they separated. The father returned to New Jersey with the son. The mother and father were divorced in Pennsylvania in April 1994. In connection with their Pennsylvania divorce, the parties entered into a separation agreement, which provided that the father would have primary physical custody of the son. The agreement further provided for the son's emancipation upon the "attainment of the age of 18 years . . . or completion of high school education, whichever event first occurs, but no event beyond the normal date of graduation from high school of the class of the child." Additionally, the agreement stated: "This Agreement shall not be invalidated or otherwise affected by a reconciliation between the parties hereto, or a resumption of marital relations between them unless said reconciliation or said resumption be documented by a written statement executed and acknowledged by the parties with respect to said reconciliation and resumption."

Thereafter, the mother and father reconciled, and they reunited in New Jersey in 1996, but did not remarry. The reconciliation did not last. The parties separated again in 1998, and at that time, entered in New Jersey into an August 10, 1998 "Amendment to Separation Agreement," which provided in relevant part:

WHEREAS, said Decree of Divorce incorporated within its provisions a Separation Agreement signed by the parties on December 10, 1993; and

WHEREAS, the parties are desirous of amending that Separation Agreement in reference to the items concerning custody of their child, visitation, and child support; and

WHEREAS, the amendment of that Separation Agreement is caused by changed circumstances and, what the parties have decided for the best interests and welfare of their child . . . now age ten (10) years.

1. The Parties shall have the joint custody of . . . the minor child of the marriage, with the Mother having Residential Custody of the child, subject to the Father's visitation.


4. Father shall pay directly to Mother, as and for support of the child, the sum of Two Hundred ($200.000) Dollars per month, commencing August 1, 1998. . . .

5. (a) Father and Mother shall be required to provide, at his/her cost, medical/hospital insurance coverage for the benefit of the parties' child until his 18th Birthday, or until he is no longer a full-time student, whichever shall occur later. . . .

6. Father shall pay one-half of their child's school tuition, in accordance with the prior practice of the parties.*fn1


7. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New Jersey.


9. . . . Except as modified herein, the parties do hereby confirm and republish their Separation Agreement of December 10, 1993.

Since the execution of the amendment to the separation agreement in 1998, all parties have continued to live in Clifton, New Jersey, and the son has remained in his mother's custody. The son reached the age of eighteen on October 8, 2005 and graduated from high school in June 2006.

In May 2006, the mother filed a motion requesting increased child support, repayment of medical costs, payment of college expenses, and injunctive relief. At that time, the Pennsylvania decree of divorce, separation agreement and amendment to the separation agreement were all docketed in New Jersey. Following an initial default by the father, the mother's motion was heard on September 22, 2006. The Family Part judge ruled in the mother's favor, but instructed the attorneys for the parties to draft a consent order for his signature. The order, signed by the court on December 13, 2007, provided for payment by the father of $10,425.46, consisting of a one-half share of unreimbursed medical expenses, medical insurance, and child support. Additionally, the father consented to pay one-third of the cost of his son's college expenses as a commuting student at Kean College. No appeal from the order was filed.

In 2007, the father, having retained new counsel, stopped paying college tuition. Following efforts by the mother to obtain compliance with the 2006 order, the father moved for the son's emancipation or, in the alternative, for a modification of his obligation to pay child support and medical expenses. In response, the mother filed a motion to enforce litigants rights and a cross-motion seeking an increase in child support.

In support of his motion seeking his son's emancipation, the father argued that pursuant to our newly-published decision in Marshak v. Weser, 390 N.J. Super. 387 (App. Div. 2007), the full faith and credit provisions of the Constitution as embodied in the Uniform Interstate Family Support Act (UIFSA), codified in New Jersey at N.J.S.A. 2A:4-30.65 to -30.123, mandated that Pennsylvania law governed the issues of child support and emancipation as the result of the entry in that State of the parties' final judgment of divorce incorporating the parties' separation agreement, and that nothing in the amended separation agreement changed the duration of child support. According to the father, the New Jersey amended separation agreement merely changed custody and established the amount of the father's child support obligation. It did not change jurisdiction, and it did not affect the issue of emancipation and the husband's obligation to provide child support only until emancipation occurred.

In a written decision circulated to the parties on April 13, 2007 following oral argument, Judge Diamond held that "New Jersey should exercise continuing and exclusive jurisdiction over the parties' disputes arising with respect to custody and child support." In doing so, the judge distinguished Marshak, stating that in that case, "both parties continued to avail themselves of Pennsylvania courts and law for modification of child support and the consent order entered into in 2002 by both parties which was filed in the state of New Jersey provided, 'nothing herein shall be construed to [affect] the nature, term, duration or extent of child support under the laws of the State of Pennsylvania.'" By contrast, in the present case the amended separation agreement of August 10, 1998 specifically provided that it "shall be governed by and interpreted in accordance with the laws of the State of New Jersey." The judge further found that since the entry of the amended separation agreement, the parties had availed themselves of New Jersey's courts and law regarding custody and visitation issues, as specifically evidenced by the December 13, 2006 consent order requiring the father to pay one-third of his son's tuition. The judge concluded his opinion by stating:

It is the opinion of the court that Defendant is now attempting to forum shop because under Pennsylvania law emancipation is controlled by age, whereas, under New Jersey law several factors must be considered including the status of a child as a full time college student. The purpose of UIFSA was to avoid conflicting laws being applied and venue shopping but it does not preclude parties from consenting to the jurisdiction of another state. Pursuant to N.J. Stat. § 2A:4-30.114(a)(2), modification of an out-of-state decree can be accomplished where individuals or children subject to personal jurisdiction of this State have filed written consent. The August 10, 1998 amended judgment of divorce,*fn2 constitutes written consent for New Jersey to handle all matters of child support and custody between the parties.

Accordingly, the judge denied the father's motion seeking emancipation. In a later letter, he declined to determine whether an increase or decrease in child support was warranted, noting that neither party had filed a current Case Information Statement or Guideline Worksheet within the time frame specified, and that an appeal had been filed, depriving the judge of jurisdiction in the matter.

On appeal, the father argues that the parties' initial separation agreement controlled emancipation events, and that under Pennsylvania law, there "can be no doubt" that the son would be emancipated. He claims further that the Constitution's full faith and credit clause requires recognition of the Pennsylvania separation agreement, which he asserts was not modified in any relevant respect by the later amended separation agreement. Thus, the father claims, there was no change to the duration of child support. Additionally, the father claims that because the controlling nature of the initial separation agreement in connection with the issue of emancipation was not argued by the husband or considered by the motion judge at the time, the December 13, 2006 consent order, which was contrary to N.J.S.A. 2A:4-30.114c (stating that "[a] tribunal of this State may not modify any aspect of a child support order that may not be modified under the laws of the issuing state") should be declared a nullity.

We disagree. As Judge Diamond recognized, the present case differs from Marshak because the parties agreed, subsequent to the execution of their initial separation agreement, to modify that agreement's child support terms in a manner that extended the father's obligations until his son was no longer a full-time student, and it specified that the amended agreement would be governed by and interpreted in accordance with the laws of New Jersey. That such was the parties' intent is confirmed by the entry of the December 13, 2006 consent order, by which the father agreed to fund one-third of his son's full-time college expenses. We thus affirm the order denying the father's motion for emancipation, substantially for the reasons expressed by Judge Diamond in his written opinion.


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