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Dandrea v. Flanagan

May 15, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1897-99D.

Per curiam.


Argued April 20, 2009

Before Judges Lisa and Reisner.

This case stems from post-judgment orders determining the date of emancipation of the younger child of the marriage and resolving claims regarding defendant's obligations for college expenses and child support. Plaintiff appeals and defendant cross-appeals from portions of the orders. We affirm on the appeal and cross-appeal.

The parties were divorced on April 13, 2000. They had two daughters. The older daughter was born on April 27, 1983, and the younger daughter was born on December 15, 1984. The parties entered into a Property Settlement Agreement (PSA) at the time of the divorce. Plaintiff was the custodial parent. Defendant agreed to pay monthly child support of $750 per month per child, or a total of $1500, which would terminate upon the emancipation of each child. The parties agreed that they would equally pay the cost of college expenses, defined as "tuition, fees, books, room and board," and that defendant's obligation would be "a maximum amount of $12,000 per year."*fn1

Defendant began paying his support obligations. The older daughter enrolled in Syracuse University and ultimately graduated on May 30, 2005. An order was entered on May 27, 2005 declaring her emancipated. The younger daughter matriculated at Rutgers University, and ultimately graduated on May 17, 2006.

The support order had been modified in 2003 to require defendant to pay $1500 in child support and $1000 in college expenses, for a total of $2500 per month. When the older daughter was emancipated, the order was modified to provide for $750 per month child support for the younger child and $1000 per month for college expenses. In June 2007, it was increased by the court to a total of $1864 per month. Since 2002 or 2003, defendant's wages (and later his disability benefits) were garnished and all required payments were accordingly made.

When the younger daughter graduated from college, defendant communicated with plaintiff, submitting a proposed consent order that would resolve many issues and declare the daughter emancipated. Plaintiff refused to sign the order, and the parties were unable to reach agreement as to the issues raised.

Defendant took no further action for about sixteen months, until he filed a motion on September 19, 2007 requesting to vacate the wage garnishment, to declare the younger daughter emancipated as of May 17, 2006, and to order reimbursement of all college expenses and child support he paid since May 17, 2006. He also sought attorney's fees.

Plaintiff filed a cross-motion seeking a declaration that the younger daughter was not yet emancipated. Plaintiff contended the younger daughter was still living with her in Staten Island, New York, was a full-time student, and was fully dependent. Plaintiff also sought reimbursement of $15,895 she claimed defendant owed for college expenses for a time period prior to spring of 2005. She also sought counsel fees.

Judge Currier found that upon graduation from Rutgers in May 2006, the younger daughter was not a full-time student. Beginning in January 2007, she began taking part-time paralegal courses at Middlesex Community College. On her application to that institution, she reflected a New Jersey address, and on her tax returns during that time period, she reflected a different New Jersey address. Under those circumstances, the judge found that she was emancipated and ordered that child support should terminate. However, based upon the anti-retroactivity statute, N.J.S.A. 2A:17-56.23a, the judge ordered that child support would be terminated as of the date defendant filed the motion, not fully retroactive to the date of emancipation.

With respect to college expenses, the judge found that for the sixteen months that elapsed since graduation defendant had paid $16,000 to plaintiff for expenses that did not exist. Further, the PSA obligated defendant to pay for one-half of college expenses (up to the specified limit), but not for any post-graduate educational expenses. The judge ordered plaintiff to reimburse defendant the $16,000 improperly paid.

The judge rejected plaintiff's claim for reimbursement or an offset against the claimed deficiency in payment by defendant of $15,895 in college expenses dating back to a period prior to spring 2005. Defendant had been paying the required $1000 per month and plaintiff ...

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