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Rooney v. Greco

November 12, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-843-05-S.

Per curiam.


Submitted October 16, 2008

Before Judges Parrillo and Lihotz.

Plaintiff Patrick Rooney appeals from the post-judgment order of the Family Part denying his motion for emancipation of the parties' eighteen-year old daughter, and reduction of his child and spousal support. We reverse and remand for further proceedings.

By way of background, plaintiff and defendant Dawn Greco were married on March 23, 1991, and had three children, twin sons born on October 24, 1991 and a daughter, born on August 23, 1989. Prior to their divorce on June 13, 2005, the parties agreed, by consent order of May 10, 2005, that defendant would be the primary residential custodian of the three children and both would share legal custody. A property settlement agreement (PSA) incorporated into the dual judgment of divorce provided that plaintiff would pay alimony to defendant for a five-year term at $200 per week, but was silent as to termination of the obligation due to cohabitation. The PSA also provided that the children shall be deemed "emancipated" upon the happening of several events, including:

Graduat[ion] from high school[. H]owever, in the event the child ceases to attend high school, upon the child's 18th birthday, or the completion of four (4) continuous academic years of college education, whichever last occurs.

Sometime after the divorce, the twin sons commenced residing with plaintiff. Consequently, on March 5, 2007, the parties executed a consent order agreeing to terminate plaintiff's child support obligation to defendant and to be financially responsible for the needs of the child/children in his or her own residential care. Several months later, in August, the daughter turned eighteen, and because she did not return to her senior year in high school in the Fall, plaintiff moved to declare her emancipated and fix defendant's child support obligation accordingly.

Plaintiff also moved to reduce alimony based on defendant's alleged "cohabitation" with her boyfriend, with whom defendant supposedly acknowledged being in a "committed and exclusive relationship." In support of this application, plaintiff certified that defendant's boyfriend receives mail at defendant's residence and that, according to a private investigator who surveilled the home over a three-month period (June 21, 2007 to September 21, 2007), the boyfriend's vehicle was parked in defendant's driveway at various times from as early as 4:52 a.m. to as late as midnight, nineteen of the twenty days the house was under watch. During this time, the boyfriend was also observed working on the yard.

In her responding certification, defendant admitted that her daughter quit high school because "the pressure . . . was too stressful . . ." and has neither pursued her GED nor gainful employment, apparently by choice. Defendant claimed, nevertheless, that their daughter "is totally dependent upon me for her support." Defendant also admitted that her boyfriend "visit[s] with me regularly, perhaps as much as several days a week . . ." and "spent as many as four or five overnights with me during a period of one week." Defendant denied, however, that he resides with her, receives mail regularly at her residence, or shares any expenses or bank accounts with her.

Based simply on the conflicting certifications, the judge issued a "tentative" or preliminary written decision, denying any relief to plaintiff, finding no proof of emancipation, and therefore no "changed circumstance" to modify the parties' March 2007 consent order eliminating any child support obligation to the other. The judge also found no evidence of cohabitation to warrant a reduction in plaintiff's spousal support obligation. Following oral argument on plaintiff's motion, the judge found no reason to change his tentative decision:

. . . The Court well understands the plaintiff's unhappiness with this Court's tentative decision because he loses on two vital issues. But the reason why he loses is based upon the Court's findings of fact and the application of law which the Court deemed sound when it wrote the tentative.

Now the Court has listened very closely to Mr. McCoy's argument and it is articulately made. However, the response is equally articulate, and the Court finds that its initial findings are soundly based upon the evidence and the application of the law to those findings on the two vital issues of emancipation and cohabitation are appropriate under the circumstances.

We disagree. The court's decision is bereft of any factual findings resolving the conflicting proofs or any conclusions of law based thereon. We are satisfied that the evidence presents, at the very least, a prima facie case of emancipation and ...

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