On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FM-12-1136-98M.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and LeWinn.
Plaintiff Salvatore Petruzzi appeals from the July 6, 2007 order of the Family Part granting his motion to declare the parties' two sons emancipated but denying him a retroactive modification of his child support obligation. Having reviewed the record, we conclude the trial judge misapplied the retroactivity bar in N.J.S.A. 2A:17-56.23(a).
Therefore, we reverse and remand this matter for further proceedings.
The parties were married on October 12, 1980. Two sons were born of the marriage: Salvatore, born December 18, 1981; and Daniel, born December 9, 1983. The parties were divorced on August 3, 1999. Pursuant to their divorce judgment, defendant Kathleen Petruzzi was designated the children's parent of primary residence. Plaintiff's child support obligation was set at $210 per week, "said support to continue until the children reach the age of 18 years or finish High School or complete four years [post-]secondary education at a college or other secondary school, whichever comes last[.]"
Salvatore graduated from high school on June 19, 2001, and did not thereafter pursue any post-secondary education on a full-time basis. He continued to reside with defendant until May 2005, when he moved out to live with his girlfriend. Salvatore died on September 17, 2005, as a result of a fatal automobile accident.
Daniel graduated from high school on June 19, 2002. He pursued some post-secondary education for a brief period of time. Daniel continued to reside with defendant after his graduation from high school.
On April 26, 2007, plaintiff filed a motion seeking to declare the children emancipated as of the dates of their respective high school graduations. Plaintiff also sought termination of his child support obligation and reimbursement of his child support payments retroactive to those emancipation dates. He calculated the amount of the reimbursement to be $95,508. Plaintiff explained his delay in filing this motion as follows:
I did not sleep on my right as alleged by Defendant. I was unaware of my rights and how to exercise same. Over the years, I called probation several times and was misadvised by the caseworkers as to the emancipation process. The caseworkers repeatedly told me that the custodial parent had to initiate the process. I asked Defendant to emancipate the children and she refused to do so. I thought that my hands were tied regarding the emancipation of the children. My naivety regarding the process coupled with my reliance upon the "knowledge" of the caseworkers left me at a severe disadvantage. Had I known that I had to file the motion presently before the Court, I would have done so years ago.
In her opposition to the motion, defendant stated:
I do not know why the plaintiff waited so long to emancipate the children. We had several conversations concerning the emancipation of the children. The first one I can recall was shortly after Sal's death. I told him to do what he had to do to emancipate the children. He did nothing. Since that time we had three or four conversations concerning this issue, some commenced by him and some by me. My position was consistently that he had to do whatever had to be done to have the children emancipated. Several months ago I called the Family Court to find out how we emancipate the children. The Court sent me papers to complete. I called the plaintiff and told him I had the papers for him to complete to emancipate the children. He did not ask me to forward them to him or come to pick them up. Subsequently, I received this motion.
At the conclusion of oral argument on July 6, 2007, the judge ruled that Salvatore would be emancipated as of the date of his death, September 17, 2005; Daniel was declared emancipated as of April 26, 2007, the filing date of plaintiff's motion. The judge terminated ...