On appeal from Superior Court of New Jersey, Camden County, Chancery Division, Family Part, Docket No. FM-04-836-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2009
Before Judges Fuentes and Simonelli.
Defendant Carolyn M. Sisto and plaintiff Frank T. Sisto married on November 28, 1981. They had five children; only one had been declared emancipated by the time this matter came before the court. On April 8, 2004, the Family Part issued a final judgment of divorce (JOD) dissolving the marriage.
This appeal originates from the adjudication of plaintiff's post-judgment motion seeking to enforce and modify certain provisions under the JOD relating to the emancipation of the parties' children, adjustment of the parties' child support obligations, and reimbursement for payments made for the children's dental care. After reviewing the record before us, we affirm in part and remand for the trial court to make the findings necessary to support the court's selection of a specific date of emancipation for two of the parties' children.
The JOD established the children's custodial arrangements and determined plaintiff's support obligation. Plaintiff was the primary residential parent for Tom,*fn1 born in March 1984, and defendant was the primary residential parent for Charlotte, born in August 1986, Charles, born in December 1987, and Carina, born in January 1990.*fn2 Because the oldest child was emancipated at the time of the divorce, he plays no role in this controversy.
The JOD fixed plaintiff's child support obligation at $210 per week, payable by wage execution through the Camden County Probation Department. This figure was later increased to $242 to reflect a cost of living adjustment. Plaintiff received a $59 credit for Tom's weekly expenses. Plaintiff also agreed to pay all college expenses for the boys, Tom and Charles, while defendant agreed to pay the same expenses for the two girls, Charlotte and Carina. The JOD additionally directed defendant to pay for one-half of the children's unreimbursed medical expenses in excess of $250 per year.
Tom graduated from Drexel University in September 2007 and obtained full-time employment in January 2008. Charlotte graduated from Rowan University in May 2008 and does not reside with either parent. Charles attends Rutgers University and lives on campus, returning to his mother's house during the holidays and summer breaks. Carina attends Rowan University and continues to reside at home with defendant. Both Charles and Carina work part-time; they earn approximately $2500 and $4000 per year respectively. Plaintiff earns approximately $80,000 per year; defendant's annual salary is approximately half of plaintiff's salary, or $40,000.
Against these facts, plaintiff moved before the Family Part to modify his support obligations by declaring Tom and Charlotte emancipated and to reduce his child support payments for Charles and Carina, both retroactive to the filing date of the motion.
Defendant cross-moved, seeking to have the court deem Tom emancipated as of his college graduation date, a recalculation of the support obligation triggered thereby, and a new determination of plaintiff's support obligations for Charles and Carina.
After considering counsel's arguments, the court granted plaintiff's motion and declared Tom emancipated as of January 1, 2008, entitling defendant to a $1829 child support credit. The court also declared Charlotte emancipated as of May 16, 2008, entitling plaintiff to a $1404 child support credit. Finally, the court directed plaintiff to reimburse defendant for certain dental care expenses for the children.
On the question of emancipation, the parties only dispute the operative dates of when the emancipations occurred. Defendant argues that the motion judge erred in declaring Tom emancipated as of January 1, 2008, instead of on his college graduation date. Plaintiff argues that the court correctly determined the date of Tom's emancipation based on the approximate date that he gained full-time employment.
The trial court made the following ruling on the return date of defendant's motion:
The Court [has] considered [the] argument[s], and I've certainly reviewed the submitt[ed] papers, the moving party's papers, as well as opposition. I'm certainly in-tune with both arguments that . . . [were] made by both sides.
The Court finds that the appropriate date for the emancipation of both parties would be the date of the filing of this motion.
The Court finds that, in essence, that Mrs. Sisto did somewhat sit on her rights. She's certainly aware of the date of the graduation, she attended the graduation.
Mrs. Sisto - based on what was presented to this Court, Mrs. Sisto was present for [Tom's] graduation, she [has] a relationship with her son. A motion could have been filed for emancipation back in September of '07 or October of '07 after the exit interview, and that was not filed.
The Court finds that based on that information, the Court is going to grant the motion for emancipation of [Tom] and [Charlotte], but it will be from the date of the actual filing of this motion.
Later in the course of the hearing, defense counsel brought to the court's attention that defendant had not, in fact, attended Tom's graduation. Despite this initial misunderstanding, the ...