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Roder v. Roder

January 26, 2009

DONALD RODER, PLAINTIFF-APPELLANT,
v.
LINDA RODER, F/K/A LINDA TERRY, N/K/A ADRIAN MICHAEL ASHFORD, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-152-96C.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 5, 2009

Judges R. B. Coleman and Sabatino.

This unopposed appeal arises out of a dispute concerning the proper timing of the emancipation of a child. The pertinent facts and procedural history are as follows.

Appellant Donald Roder ("the father") and respondent Linda Roder ("the mother") were married in 1987. Shortly thereafter, the father adopted the mother's son from a previous marriage. The parties ultimately divorced in October 1997, entering by consent into a dual judgment. Among other things, the divorce judgment obligated the father to pay child support for the son through emancipation. Emancipation was specifically defined in the relevant provision of the judgment as:

the [later] of (i) the Child's reaching age [18] or (ii) the completion of [H]igh [S]chool; provided, however, that if the Child attends College on a full-time basis immediately following the completion of High School, then the Child's emancipation shall not be deemed to have occurred until the Child completes his or her full-time College study.

In July 2002, upon the son's graduation from high school, the father filed a motion to declare him emancipated. That motion was denied on August 26, 2002, evidently because the mother had submitted ex parte opposition to the judge, in which she represented that the son was going to be enrolled as a full-time college student for the fall 2002 semester. She filed her opposition on an ex parte basis because there is an active restraining order between her and the father.

The father continued to pay child support for the son through October 2003. At that point the father ceased making payments because he had received no proof that the son was actually attending college and had no contact with him.

Meanwhile, the Probation Department computed arrears for the father's non-payment, although the mother did not file any enforcement motions.

In March 2006, the father hired an attorney to subpoena records from Brookdale Community College, where the Probation Department, apparently based upon assertions by the mother, thought the son had been enrolled. The college responded to the subpoena by indicating that they had no record of the son ever being enrolled there, nor any student with the same Social Security number. The father also wrote Probation a letter requesting the identity of the college or institution that his son was supposedly attending. In a reply letter in August 2006, Probation advised the father that confidentiality concerns precluded it from releasing such personal information concerning his son. Probation suggested that the father's counsel attempt to ascertain the information from the mother.

Consequently, the father filed a new motion seeking to have the son emancipated, retroactive to the son's high school graduation in June 2002. The mother did not oppose that motion.

The Family Part consequently entered an order on December 15, 2006, declaring the son emancipated as of that date. This initially-chosen effective date was four years after the son had turned eighteen and also four years after the son presumably would have commenced any continuous four-year college program. The court did not reduce the arrears or award any retroactive relief to the father at that time. However, it did order the mother to "provide records and documentation" that the son had indeed "attended college on a full-time basis from fall 2002 through [s]pring 2006."

The mother failed to supply such documentation. As a result, the father once again moved for relief to adjust the son's emancipation date retroactively. This motion, which was again unopposed by the mother, was assigned to a different Family Part judge than the judge who had issued the order of December 15, 2006. The successor judge apparently was under the erroneous assumption that the father had ...


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