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Cichy v. Cichy

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 20, 2009

SHERRY CICHY, PLAINTIFF-RESPONDENT,
v.
KENNETH CICHY, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-13131-91.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 5, 2009

Before Judges Gilroy and Chambers.

Defendant Kenneth Cichy appeals from the July 28, 2008 order declaring the parties' daughter Pamela emancipated, effective December 11, 2007. We reverse and remand for further proceedings consistent with this opinion.

Plaintiff Sherry Cichy and defendant were married on June 17, 1978. Three children were born of the marriage: a son Kenneth, and two daughters, Pamela and Karen. On April 28, 1994, the parties appeared before the Family Part and presented testimony in support of their request for a dual divorce. At that proceeding, the parties placed the terms of their oral property settlement agreement (PSA) on the record, addressing issues of custody, child support, alimony and equitable distribution. On July 8, 1994, the court entered a confirming dual judgment of divorce incorporating the terms of the PSA by reference.

Pursuant to the PSA, defendant agreed to pay plaintiff $362 a week in child support through the County Probation Department via a wage garnishment until the children became emancipated. The PSA defined emancipation in part as the "attaining the age of 19 years or the completion of 4 academic years of college," whichever occurred last. At time of the divorce, Kenneth was thirteen years old; Pamela, nine years old; and Karen, five years old. Kenneth became emancipated on October 10, 2003.

On May 18, 2007, Pamela graduated college. On May 29, 2007, defendant sent plaintiff a letter, together with a proposed consent order deeming Pamela emancipated as of May 19, 2007. Plaintiff never acknowledged receipt of the letter. On November 20, 2007, defendant sent plaintiff a second letter but again received no response.

On December 11, 2007, defendant filed a motion seeking emancipation of Pamela, effective May 19, 2007; reimbursement of overpayment of child support for Pamela in the amount of $4,750; and counsel fees. Plaintiff refused to accept service of the motion papers. At the time the motion was filed, defendant was paying $596 every two weeks for their two daughters. On January 25, 2008, the trial court entered an order denying defendant's motion without prejudice, determining that defendant failed to provide proof of proper service.

On June 5, 2008, defendant filed a second motion for emancipation, seeking reimbursement of his overpayment of child support for Pamela in the amount of $8,460, along with counsel fees. Although unopposed, the court only granted the motion in part and denied the motion in part. The court granted emancipation, effective June 5, 2008, the date of filing of the second motion; directed that plaintiff reimburse defendant for overpayment of child support for Pamela from June 5, 2008, to July 3, 2008; and directed Probation to amend its records to reflect Pamela's emancipation and to reflect a reduction in defendant's child support obligation to $150 a week for the parties' youngest child until that child is emancipated. The court denied defendant's request for counsel fees without explanation.

On July 28, 2008, after defendant's counsel forwarded a letter to the trial court requesting reconsideration, the court entered a corrective order modifying the effective date of emancipation from June 5, 2008 to December 11, 2007, the date defendant filed his first motion. The corrective order also directed plaintiff to reimburse defendant for his overpayment of child support from December 11, 2007 to July 3, 2008. However, the order again denied defendant's request for counsel fees.

On appeal, defendant argues that the trial court erred in determining Pamela emancipated as of December 11, 2007, the filing date of defendant's first motion, rather than May 19, 2007, the predetermined date in the parties' PSA. Defendant also argues that the trial court erred in denying his request for counsel fees, asserting that motion practice was only required because of plaintiff's refusal to execute the consent order.

We are satisfied that the trial court incorrectly determined Pamela emancipated as of December 11, 2007, rather than the date the parties predetermined in the PSA, where they defined emancipation in part as having completed four years of college education. Pamela graduated college on May 18, 2007; thus, according to the terms of the PSA, she was emancipated the following day. Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995).

Accordingly, we remand to the trial court to enter an amended order: 1) declaring Pamela emancipated as of May 19, 2007; and 2) directing that plaintiff reimburse defendant the amount of child support overpaid by him from May 19, 2007 to December 11, 2007, the order of July 28, 2008 having already directed plaintiff to reimburse defendant for overpayment of child support made by him from December 11, 2007 to July 3, 2008. Because defendant continues to pay child support through Probation for the parties' younger daughter, any future child support payments for that daughter shall be deemed paid by crediting the amount plaintiff owes defendant for overpayment of Pamela's child support until the amount of credit is exhausted.*fn1

As to the counsel fee issue, we also remand to the trial court for reconsideration, the court not having previously placed its findings of fact and conclusions of law on the record in denying defendant's request pursuant to Rule 1:7-4(a).

Reversed and remanded for further proceedings consistent with this opinion.


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