July 8, 2009
DONNA LEWIS, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
KENNETH MAUSS, DEFENDANT-RESPONDENT/CROSS-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FD-11-1274-99C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 12, 2009
Before Judges Winkelstein and Fuentes.
Plaintiff Donna Lewis appeals from two orders entered by the Family Part declaring the parties' two children emancipated under Pennsylvania law and, as a consequence, terminating defendant Kenneth Mauss's child support obligation. Plaintiff argues that the trial court misapplied the holding in Marshak v. Weser, 390 N.J. Super. 387 (App. Div. 2007), because the facts of this case are distinguishable from the facts confronted by the panel that decided Marshak. We disagree with plaintiff's argument and affirm.
The parties were divorced in Pennsylvania on June 3, 1994. The final judgment of divorce incorporated a Matrimonial Settlement Agreement (MSA), which addressed and determined all of the parties' "rights and obligations" arising out of their marriage. The MSA did not require defendant to pay, or contribute toward the cost of college education for the parties' two children. The MSA also provided that the agreement "be construed in accordance with the laws of the Commonwealth of Pennsylvania."
The parties moved to New Jersey after the divorce. As a result of the move, defendant's child support obligation was transferred to this State in 1999. On July 2, 1999, plaintiff filed a motion for modification of the amount of support. Defendant retained counsel and responded to the motion in Mercer County. The court granted plaintiff's motion and modified the support. Since 1999, the Mercer County Probation Department has made biannual cost of living adjustments to defendant's child support obligation, pursuant to Rule 5:6B, without objection.
On December 31, 2007, plaintiff filed a motion to compel defendant to contribute toward the college expenses of the parties' two children, "in an amount not less than 50% of all expenses, including but not limited to tuition, room and board (if applicable), commuting expenses, books, fees, and computer costs." By the time plaintiff filed this motion, both of the parties' children were eighteen years old or older. Defendant responded to the motion and cross-moved to have the court declare the children emancipated under Pennsylvania law.
After hearing counsel's argument, Judge Fleming denied plaintiff's motion, granted defendant's cross-motion, and declared the children emancipated. Relying on Marshak, supra, 390 N.J. Super. at 394, Judge Fleming determined that
New Jersey could not modify the child support beyond the duration of the obligation set by the initial issuing state, which was Pennsylvania.... Pennsylvania law does not require payment of college expenses for a child who reached the age of eighteen. See Sheetz v. Sheetz, 2003 PA Super. 512, 840 A.2d 1000 (PA. Super. CT 2003). Therefore, New Jersey cannot modify the child support order to require an extension of Defendant's obligation that would not be permitted under Pennsylvania law.
We agree with Judge Fleming's analysis. Under N.J.S.A. 2A:4-30.71:
a. A tribunal of this State may exercise jurisdiction to establish a support order if the complaint, petition or comparable pleading is filed after a complaint or comparable pleading is filed in another state only if:
(1) the complaint, petition or comparable pleading in this State is filed before the expiration of the time allowed in the other state for filing a responsive pleading challenging the exercise of jurisdiction by the other state;
(2) the contesting party timely challenges the exercise of jurisdiction in the other state; and
(3) if relevant, this State is the home state of the child.
Pennsylvania adopted a similar statutory scheme. 23 PA. Cons. Stat. § 7205(a) 2008.
Both New Jersey and Pennsylvania adopted the model provision that provides, in relevant part: "A tribunal of this State may not modify any aspect of a child support order that may not be modified under the law of the issuing state." N.J.S.A. 2A:4-30.114(c); 23 PA. Cons. Stat. § 7611(c) (2008). Our Legislature has also provided that "[t]he law of the issuing state governs the nature, extent, amount, and duration of current payments and other obligations of support and the payment of arrearages under the order." N.J.S.A. 2A:4-30.107a.
Under Pennsylvania law, a parent is not required to pay college expenses for a child who has either reached the age of eighteen or finished high school, whichever occurs later. Marshak, supra, 390 N.J. Super. at 391. Given the clear language in the parties' MSA designating Pennsylvania law as the governing standard for determining the parties' rights and obligations arising out of their marriage, and New Jersey's lack of jurisdiction to decide otherwise, N.J.S.A. 2A:4-30.114(c), we see no basis to interfere with the ruling of the trial court. We also deny defendants cross-appeal concerning the trial courts denial of his application for counsel fees.
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