On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1055-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2008
Before Judges Fisher and Baxter.
Defendant Dominic Lombardo appeals from a December 22, 2007 order that denied his motion to declare his son Anthony emancipated, retroactive to January 1, 2004. Instead, the judge declared Anthony emancipated as of May 2007. We reverse and remand.
The parties were married September 11, 1981, and separated either in June 1996 or at some time in 1998.*fn1 They had two children, Dominic Lombardo, Jr., born March 28, 1982, and Anthony Lombardo, born on June 25, 1985. The June 28, 2006 final judgment of divorce specified that defendant would pay $158 per week in child support for the remaining minor child of the marriage, Anthony, which has been accomplished via a wage garnishment. As we understand the record, the parties had already made provision for payment of Anthony's tuition.
In November 2007, defendant filed the motion that is the subject of this appeal. In that motion, he sought to: 1) declare Anthony emancipated retroactive to January 1, 2004;*fn2 2) establish the amount of the over-payment of weekly child support based upon that retroactive emancipation; 3) enter a judgment against plaintiff in that amount; and 4) establish a payment plan to satisfy that monetary judgment.
Plaintiff filed a cross-motion, the terms of which are not pertinent to this appeal. In her motion she did, however, request that the court deny defendant's motion to emancipate Anthony. In her certification, plaintiff stated:
3. Anthony had been a registered student at LaSalle University from the Fall Term of 2004 through the Spring Term of 2005. Attached are copies of some of my canceled checks for tuition, books and supplies . . . .
6. Anthony continued as a full-time student until [the] Fall Term of 2005 at Camden Count[y] College.
7. In the Spring Term of 2006, Anthony was registered at the Camden County College. One half of his tuition was paid, but Anthony did not complete the semester.
8. In June of 2006, when the Final Judgment was entered, it was Anthony's intention to resume college courses in for [sic] the Fall Term of 2006.
In a child support dismissal letter that plaintiff delivered to the Camden County Probation Department, she acknowledged that Anthony was emancipated as of January 2, 2007, because he was "no longer in school." She argued before the Family Part that ever since the separation, defendant: has had essentially no contact with our sons. In 1997, Anthony was twelve years of age. Since that time, defendant abandoned all parental interests in and parental duties to Anthony. Defendant did not know when Anthony was graduating from high school, his curriculum at LaSalle University or that he attended Camden County College. Between the spring term of 2006 and January of 2007, defendant had an obligation to be in contact with our son, Anthony, and to make his own determination of not only whether Anthony was still a student, ...