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Diana v. Diana

May 25, 2010

JO-ANN MURRAY DIANA, PLAINTIFF-APPELLANT,
v.
JAMES DIANA, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-26302-88.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 8, 2009

Before Judges Grall and LeWinn.

In this post-judgment matrimonial matter, plaintiff appeals from the provisions of the November 21, 2008 order of the Family Part modifying defendant's child support obligation for the parties' daughter and denying her request for counsel fees; she also appeals from the February 27, 2009 order denying her motion for reconsideration. We reverse and remand.

The child support issue relates to defendant's obligation during the daughter's college years which commenced in the Fall of 2004. At that time defendant's child support obligation was $180 per week. The parties' Property Settlement Agreement (PSA) incorporated into their October 26, 1988 judgment of divorce, provides that while the child is enrolled in college, [plaintiff] will be entitled to full child support payments for the child for any week(s) that said child is on summer, winter or spring breaks. [Defendant] . . . agrees that while said child is in residence at college, he shall continue to pay to [plaintiff] a reduced amount of child support to cover her fixed incidental expenses for the child.

More than fifteen years later, the parties entered into a consent order providing in part, that: (1) defendant's child support obligation would be "reduced by $15.00 per day when [the daughter] is residing on campus at [college]"; (2) plaintiff "shall provide . . . defendant with a copy of the [college] academic calendar which can also be accessed on the [college] [w]ebsite"; (3) defendant "shall secure the attendance information from [the daughter] directly so as to be sure of its accuracy"; (4) defendant "agrees to make the necessary arrangements to pay his agreed share of their daughter's college educational expenses so as to avoid any late payment fees and potential credit problems"; (5) defendant "agrees to make his future child support payments through the appropriate Probation Department"; and (6) plaintiff "shall cooperate and provide all required information to the Probation Department as necessary so that . . . defendant may receive the appropriate reductions to his child support payments for those days when [the daughter] is residing on campus[.]"

Three years later, defendant filed a motion seeking to declare the parties' daughter emancipated and terminating his child support obligation. Defendant requested oral argument on his motion. Plaintiff filed a cross-motion seeking payment of the more than $6,000 in child support arrearages she alleged were due, as well as a cost of living adjustment (COLA) to defendant's child support obligation. She also asked for oral argument if her motion were opposed.

Plaintiff certified that the parties' daughter was currently student teaching as part of her course work as a full-time college student and, therefore, was not yet emancipated. According to plaintiff's papers, the records of the Probation Department were not accurate because of confusion with respect to the per diem reduction in child support provided in the parties' earlier consent order.

Plaintiff appended payment records from the Probation Department and included her calculations based upon those records. Those calculations led to an arrears amount of $6,325.01, rather then a credit as reflected in the Probation Department records.

Plaintiff further noted that she had recently received a COLA on the child support, but that adjustment was based on the $75 weekly amount rather than $180 amount; therefore, she requested proper application of the COLA.

Finally, plaintiff sought counsel fees, claiming that defendant knew that he was in arrears but had refused to make any effort to rectify the situation.

Defendant certified in opposition that he was "never notified that the amounts the Probation Department w[as] deducting from [his] pay were incorrect, as alleged by . . . plaintiff. . . . [P]laintiff did not provide [him] with [the daughter's] school schedule as it was represented in the Consent Order of October 5, 2005 that she would do." Therefore, defendant stated that he had "no idea whether [the daughter] was actually home or at school during any particular week unless [he] was informed of it by either . . . plaintiff or [the daughter]." Defendant claimed that this "is the first time that [he has] been notified by plaintiff, or anyone, that the child support which was deducted from [his] pay is allegedly incorrect."

In fact, defendant certified, it was his "impression . . . that [he] had actually over-paid on [his] child support, which is why [he] filed this [m]otion when [he] did so that [he] would not be ...


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