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Rescinito v. Panetta

August 20, 2009


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Salem County, Docket No. FM-17-154-99.

Per curiam.


Submitted August 11, 2009

Before Judges Lihotz and Baxter.

Defendant Dominick Panetta appeals from two provisions contained in an August 8, 2008 post-judgment Family Part order. The first amended the amount of his child support obligation, following the emancipation of the parties' oldest child, effective on the date defendant filed his motion rather than the asserted date of emancipation. The second granted the request to pay spousal support submitted in the cross-motion of plaintiff Elizabeth Rescinito. Defendant also appeals from an order denying his motion for reconsideration of the two determinations. On appeal, defendant persuasively argues the motion judge erred in fixing the date of emancipation and continuing alimony after the limited period for payment ended, as stated in the final judgment of divorce (FJOD). We reverse.

The parties were divorced on December 17, 1999. The FJOD required defendant to pay $190 per week as support for the parties' three children and $200 per week to plaintiff as "term alimony" for the period November 1, 1999 to October 31, 2004.

From August 29, 2000 to April 20, 2008, defendant was incarcerated. His obligations for alimony and child support went unpaid, accruing $133,757 in arrearages. Since his parole, defendant has not been able to secure employment. At the time the motion was reviewed, he certified each month he received $140 in general assistance and $140 in food stamps.

Defendant filed a motion to emancipate the two oldest children, effective upon reaching age eighteen. He also asked the court to modify child support for the youngest unemancipated child and fix an arrearage payment. Plaintiff filed a cross-motion to require payment of "outstanding spousal support."

The motion judge granted defendant's request to emancipate the oldest child effective June 10, 2008. The court denied the emancipation request with respect to the middle child, a full-time college student. Imputing minimum wage earnings to defendant, the motion judge then set child support for the two unemancipated children at $20 per week, and ordered an additional $20 per week paid toward the accumulated arrearages. Finally, defendant was ordered to commence payment of the "[c]court ordered spousal obligation" beginning October 1, 2008 and to "pay an additional $15 per week toward arrearages." Reconsideration of the order was denied as untimely and this appeal ensued.

Our review of a trial court's factual findings is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We do "not disturb the 'factual findings and legal conclusions of the trial judge unless... convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412. "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Defendant sought to emancipate his oldest child upon reaching the age of majority. In fixing the date of emancipation as June 10, 2008, the motion judge chose the filing date of defendant's motion. On reconsideration, notwithstanding the determination to deny relief because the motion was untimely, the judge added this comment:

No arguments were advanced by [d]efendant at the original motion to suggest facts... that [the child] should be emancipated prior to the filing date of the original motion. The only argument advanced by [d]efendant was limited to age [], which is only one factor the [c]court would consider in determining whether to emancipate. To the contrary, [p]laintiff asserted... the child continued to reside with her and was somewhat depend[e]nt upon her. Based upon these facts alone, the [c]court did not find even a disputed fact as to whether an earlier emancipation date should occur, which would in turn warrant a plenary hearing on that issue.

Our review of the record, in light of the applicable law, determines there was support for defendant's request, which was not properly considered by the motion judge. Plaintiff expressly stated defendant has had no contact with the family since 1998 due to his arrest, conviction, and conditions of parole. The only fact he can proffer is the child's age. All other information, including when the child ceased school attendance, the date employment commenced, and the child's assets and earnings, rested solely with plaintiff.

The obligation to provide payment of child support terminates with the child's emancipation. Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995). "The facts of each case will control when a child is emancipated. Although there is no fixed age when emancipation occurs, N.J.S.A. 9:17B-3 provides that when a person reaches eighteen years of age, he or she shall be deemed to be an adult." Gac v. Gac, 186 N.J. 535, 542 (2006). Thus, contrary to the motion judge's finding, defendant presented a prima facie case of emancipation causing the ...

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