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Dennis M. O'dell v. Geraldine L. O'dell

January 13, 2011

DENNIS M. O'DELL, PLAINTIFF-APPELLANT,
v.
GERALDINE L. O'DELL, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2478-98.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 3, 2011

Before Judges Lisa, Reisner and Alvarez.

Plaintiff Dennis M. O'Dell appeals from a series of Family Part orders dated June 17, 2009, August 26, 2009, and December 17, 2009. In relevant part, the orders set plaintiff's child support obligation at $220 a week and ordered him to pay arrears to his former wife, defendant Geraldine L. O'Dell; required him to pay $11,000 toward their son's college tuition; denied modification of child support based on changed financial circumstances; and denied an application by plaintiff's current wife to be admitted pro hac vice as his attorney in the Family Part action. We affirm the order denying the pro hac vice application. We remand to the trial court for further proceedings on the issues of child support and college tuition.

I

These are the most pertinent facts. The parties were married in 1984. They have one son, who was born in 1991. When the parties were divorced in 1998, they signed a property settlement agreement (PSA) providing for joint legal custody of their son, whom they agreed would reside with defendant.

The "Child Support" section of the PSA (Article IV) began by stating that "[t]he parties' respective obligations as to the support and maintenance of the child until the child is emancipated, shall be as follows." Paragraph one provided that plaintiff would pay $220 per week in child support "until the child is eighteen (18) or has graduated from High School, which ever shall occur last, irrespective of college attendance."*fn1 The child care section did not define what level of child support would be due after the child turned eighteen or graduated from high school.

Article V of the PSA addressed college expenses. The parties agreed that "each of them shall contribute based on their ability to pay at the time to the child's . . . college expenses." They further agreed to meet and discuss college plans with the child when he was a junior in high school. They also agreed that they would set up "a trust account" for the child's education, "into which each parent will contribute up to $1,000 per year . . . based on the ability to pay" (emphasis added). In Article VI, the parties agreed that the child would be deemed emancipated at age eighteen or upon graduation from high school, unless he was "attending full-time college." The parties each waived their right to alimony and agreed to each maintain $200,000 worth of life insurance for the child's benefit.

For several years after the divorce, the parties engaged in repeated and acrimonious post-judgment motion practice, mainly concerning visitation and other issues relating to their son. During this period, plaintiff re-married, moved to Pennsylvania and changed jobs, albeit remaining in the same field of employment.

In May 2009, defendant filed an application to set child support arrears and require plaintiff to pay support through Probation. Plaintiff opposed the application, contending that he was current in his past obligations, and that under the PSA his obligation to pay child support terminated when the son turned eighteen. On June 17, 2009, the Family Part judge granted defendant's application.

On that same date, plaintiff filed a pro se motion to dismiss defendant's claim for support arrearages. The motion asserted that plaintiff had fulfilled his child support obligations to date, in part by directing that his Social Security benefits be paid to his son. He also contended that the son had "reached the age of emancipation," and that his child support obligations had ended under the terms of the PSA.

Defendant filed a cross-motion opposing plaintiff's "application to emancipate the [c]hild" and seeking, among other things, an order directing plaintiff to pay $11,000 toward the son's college tuition. According to defendant's certification, the son was not emancipated; rather, he graduated high school in June 2009 and was due to start college in September 2009. Defendant also contended that because the PSA provided for each party to deposit $1000 into a college trust fund every year since 1999, plaintiff was automatically required to pay $11,000 toward the son's current tuition. She represented that she intended to file a future application "to adjudicate financial responsibility for the balance of [the son's college] expenses." In response, plaintiff denied that he was seeking to have the son declared emancipated; rather, he sought to enforce the PSA which he contended terminated his child support obligation when the son turned eighteen. Plaintiff further contended that he had retired and had limited financial resources, while defendant was affluent.

In addressing the motion and cross-motion on August 26, 2009, the judge considered that a different Family Part judge had entered an order in June 2009, setting child support at $220, and defendant had not appealed from that order. The judge also reasoned that, even if plaintiff's current motion were deemed an application for reconsideration of the June order, an agreement to waive child support would be void as against public policy. He acknowledged that if plaintiff was paying for a portion of the son's college expenses, a reduction in child support might be appropriate to avoid duplication. However, he noted that plaintiff had not filed an application seeking to reduce child ...


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