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Kershaw v. Kershaw

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 5, 2010

MARTA C. KERSHAW, N/K/A MARTA C. DODSWORTH, PLAINTIFF-APPELLANT,
v.
EDWARD J. KERSHAW, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1082-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 9, 2009

Before Judges Axelrad and Sapp-Peterson.

In this post judgment matrimonial action, plaintiff appeals from the order entered by the Family Part judge terminating defendant's obligation to pay child support for the parties' two younger children, who the court determined are now emancipated. We affirm.

The parties were divorced via a Dual Final Judgment of Divorce (FJOD) on May 18, 2007. A day earlier the parties appeared before the court and orally placed on the record the terms of their Property Settlement Agreement (PSA), which the court subsequently incorporated into the FJOD. Under the PSA, defendant's obligation to pay child support for the two younger children of the marriage, who were over eighteen at the time of the divorce, was contingent upon the children being enrolled in college full-time, that is, completing twelve credits per semester and maintaining at least a "C" average. Additionally, plaintiff was required to provide defendant with proof of their enrollment in college in accordance with the PSA. Although the terms of the settlement agreement were supposed to be reduced to writing, this was never done.

In October 2008, defendant filed a pro se motion to terminate child support because plaintiff failed to provide the requisite proof of full-time enrollment in college with passing grades on the part of the two younger children. Plaintiff filed no opposition to the motion but did submit a written adjournment request to the court indicating that an adjournment was warranted "because of certain procedural defects in [defendant's] moving papers." The matter was adjourned and rescheduled for December 5, 2008. On December 4, plaintiff's counsel requested another adjournment because the Amended FJOD had never been filed and, as a consequence, there was no record of the agreement. The letter further advised the court that counsel had requested a transcript of the May 17, 2007 hearing during which the terms of the agreement had been placed on the record. The court denied the adjournment request and entered an order terminating child support for the two younger children, specifically stating in the order that "[p]laintiff has provided no proof that the children are presently enrolled in full-time post[-]secondary education." The order also noted that plaintiff "filed no opposition." The present appeal followed.

On appeal, plaintiff advances one argument, namely, the court should have denied defendant's motion because defendant failed to comply with Rule 5:5-4(a). We disagree.

Rule 5:5-4(a) requires a party seeking to modify a prior judgment to append to the moving pagers "a copy of the order or judgment sought to be enforced or modified[.]" Plaintiff correctly notes the requirements of Rule 5:5-4(a) but filed no opposition to the motion asserting this procedural defect as a basis for the court to deny defendant's motion. In a supplemental letter submitted to us pursuant to Rule 2:5-1(b), the trial court indicated that it had the opportunity to listen to the audio of the divorce proceedings. The record is rather clear that the parties anticipated that the children would be in college. Both parties were made to understand after very lengthy colloquy by both attorneys, as well as the court, that attendance at college, taking at least 12 credits and maintaining at least a "C" average were important considerations in determining emancipation.

Here, the plaintiff chose not to respond to the notice of motion filed by the defendant with supporting documentation that the children were in college, taking the appropriate credits, and maintaining passing grades. As such, the children, over the age of 18, without a disability, or any other factors negating emancipation warranted the granting of defendant's motion.

Our review of the factual findings of a judge sitting without a jury is quite limited. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We accord deference to the judge's factual findings, and our task is to determine whether the findings are supported by substantial, credible evidence in the record. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms, supra, 65 N.J. at 483-84. If the judge's factual findings are supported by the evidence, an appellate court should not disturb them. Rova Farms, supra, 65 N.J. at 484. In particular, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413.

Under this standard, we are satisfied that there is substantial credible evidence in the record to support the judge's determination that terminating defendant's child support obligation was warranted. As the court noted, plaintiff chose not to file any opposition to the motion by providing "supporting documentation that the children were in college, taking the appropriate credits, and maintaining passing grades." We note that in 2007, plaintiff's counsel forwarded to defendant a copy of their younger son's spring semester transcript and the registration for their daughter's fall 2007 enrollment at a local county college. Hence, there can be no doubt that plaintiff was fully aware of her obligation under the PSA to provide this information. Consequently, plaintiff's argument on appeal that the court should have denied defendant's motion for non-compliance with Rule 4:5-4(a), an argument not raised by way of opposition to defendant's motion before the trial court, advances form over substance. We discern no basis to disturb the court's determination here.

Affirmed.

20100305

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