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Ritchie v. Miller


January 5, 2009


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, No. FM-16-893-98.

Per curiam.


Submitted November 5, 2008

Before Judges Wefing and Yannotti.

Defendant appeals from a post-judgment order entered January 29, 2008, which denied his request to be reimbursed for child support he had previously paid on behalf of his daughter Sarah. After reviewing the record in light of the contentions advanced on appeal, we affirm in part and remand for further proceedings.

The parties were divorced pursuant to a judgment of divorce entered in June 2000. They had been married for nearly twenty-five years and had three children during the marriage--Joseph, born in April 1978, and twenty-two years old at the time of his parents' divorce; Sarah, born in August 1980, and nearly twenty years old at the time of her parents' divorce; and Joshua, now deceased.

In April 1999, nearly a year before the divorce proceedings were concluded, the court entered an order declaring Sarah to be emancipated. The court appended to its order a statement of reasons, which noted that the discord between her parents led Sarah to drop out of high school, move into an apartment and become employed. The order noted that Sarah was an excellent student who wanted to finish high school and attend college. The court noted in its statement of reasons that she could make an application in the future declaring that she was not emancipated. There was no appeal from that order.

Defendant sought to have Joseph emancipated in conjunction with the divorce proceedings, but his application was denied, Joseph being a full-time student at William Paterson University at the time. Defendant was ordered to pay $231 per week in child support for Joseph, through the probation department. Based upon the earlier order emancipating Sarah, the judgment of divorce made no provision for child support for her.

A probation review hearing was conducted in October 2002; neither party appeared. An order was entered which indicated that Sarah was not emancipated. The order, however, stated that defendant's child support payment was $841 per week. The record before us contains no explanation of the $610 difference.*fn1

The next review hearing occurred in March 2004. That order declared that Joseph, who had by then graduated from college, was emancipated, but it ordered child support to continue for Sarah, noting that she was a full-time college student.

In February 2007 another probation review was conducted. The order directed that child support continue for Sarah for she was still a full-time student. It referred to weekly child support of $874, together with arrears of $15 per week, for a gross weekly payment of $889.

Defendant contended he was not notified of any of these hearings and did not attend any of them. He did, however, continue to pay regular child support in accordance with the judgment of divorce.

Another hearing was held in July 2007, which defendant did attend and at which he raised the question of whether Sarah had ever been declared unemancipated. By the time of that hearing, Sarah was nearly twenty-seven years old. She had resumed living with her mother and was a full-time student, nearing her graduation from William Paterson University. The trial court entered an order in September 2007 staying defendant's child support obligations while the parties addressed the question whether Sarah had, in fact, been unemancipated by court order at any point.

The parties submitted briefs and the trial court conducted a plenary hearing in January 2008. At the conclusion of that hearing, the trial court entered an order which declared Sarah emancipated as of September 11, 2007, the date upon which it had ordered a stay of child support payments, but denied defendant's request to be reimbursed for the child support he had paid since 2004. The order did not set the amount of defendant's arrearages, but rather ordered the probation department to conduct an audit of defendant's account. Defendant has appealed from the denial of reimbursement; plaintiff has not appealed from the order of emancipation.

Defendant makes two arguments on appeal. He contends that the order of 2004 directing child support payments for Sarah was invalid under N.J.S.A. 2A:17-56.23a, which prohibits retroactive modification of child support orders, and that denying him reimbursement is a denial of due process because he had no notice of the 2004 hearing.

We reject defendant's first argument, for it misapprehends the purpose of N.J.S.A. 2A:17-56.23a. The statute is intended to benefit the child, not the supporting parent. Thus the statute forbids a retroactive decrease in child support, but it does not prohibit a retroactive increase in child support. Keegan v. Keegan, 326 N.J. Super. 289, 294 (App. Div. 1999).

We also reject defendant's second argument, in which he contends he did not receive notice of the hearing at which he was ordered to pay child support for Sarah. We reach this conclusion for several reasons. We do not find persuasive defendant's complaint that the probation department sent notices to the wrong address. It was defendant's responsibility to make sure that he supplied the probation department with his correct address. R. 5:7-4(f).

Further, it is unmistakable from the hearing of January 14, 2008, that defendant knew that his son graduated from college in 2004 and yet he continued to make regular child support payments. For three years, he made no attempt to question why he was still paying child support. It is also clear that defendant knew that Sarah had returned to live with her mother and was in college; indeed he was paying her college tuition. He waited, however, until Sarah was approaching graduation and then sought to have plaintiff reimburse him more than $40,000 in support that he had paid since 2003. That money, however, had been used to provide food, shelter and necessaries for Sarah. Even if we were satisfied that defendant, through no fault of his own, had received no notice of the earlier proceedings so that the orders might be deemed void, we would decline to set them aside in light of Sarah's intervening rights. City of Newark v. (497) Block 1854, 244 N.J. Super. 402, 411-12 (App. Div. 1990).

We are uncertain, however, as to how the trial court selected the date of September 11, 2007, as the date of emancipation. Its only significance with respect to this matter is that it is the date upon which the trial court had stayed defendant's child support obligation.*fn2 We are informed that defendant filed his motion seeking relief in February 2007 and that the circumstances which led the court to order emancipation in September 2007 also existed in February 2007.

We thus remand this matter to the trial court for the purpose of reconsidering its decision to set the date of the emancipation of Sarah in September 2007, rather than February 2007, and for the purpose of calculating defendant's arrearages, if any. The trial court may conduct a further hearing if it is deemed necessary. If the relevant circumstances in September 2007 were the same in February 2007, Sarah should be deemed emancipated at the earlier date, unless there are sufficient grounds for choosing the latter date. The trial court must, of course, provide an explanation for its determination. In the interim, the parties are free to arrive at their own agreement on these issues and thus avoid the necessity of further hearings and expenses.

Affirmed in part and remanded for further proceedings. We do not retain jurisdiction.

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