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Kim Nitz v. Sean Fitzpatrick

January 21, 2011

KIM NITZ, PLAINTIFF-APPELLANT,
v.
SEAN FITZPATRICK, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-237-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 8, 2010

Before Judges Ashrafi and Nugent.

Plaintiff Kim Nitz appeals the Family Part's order of February 17, 2010, entered after a post-divorce plenary hearing on defendant Sean Fitzpatrick's motion to modify his child support obligations. The parties' twin sons, Sean and Liam, were nineteen years old at the time of the hearing. Sean had enlisted in the United States Army, and Liam had started college. The court ordered Sean emancipated and terminated child support for him as of October 4, 2009. It also ordered resumption of arrears payments by Fitzpatrick following a short period of unemployment.

Nitz appeals only those provisions of the February 17, 2010 order that reduced Fitzpatrick's child support obligation for Liam to $120 per week and that allocated Liam's net college expenses 50% to Liam and the remaining 50% to be split 52% to Nitz and 48% to Fitzpatrick. Nitz seeks an increase in child support to at least $150 per week and an increase in Fitzpatrick's college contribution to at least one-third of the net expenses. In addition, she seeks reimbursement of her attorney's fees totaling almost $14,000.

Having reviewed the parties' pro se briefs, the record of the proceedings, and documents entered in evidence, we affirm the child support order as within the discretionary authority of the Family Part, but we remand to the Family Part for clarification or reconsideration of Fitzpatrick's obligation to contribute to Liam's college expenses, and to consider any renewed application by Nitz for attorney's fees.

I

The parties were married in 1985 and divorced in 2001. Their only children are the twin boys, born in January 1991.

The boys have resided with Nitz since the divorce. Fitzpatrick has remarried and has a third son.

At the time of the divorce, the parties entered into a marital settlement agreement requiring payment of limited duration alimony to Nitz through 2016 and fixing the amount of child support for the boys. The parties have returned to the court several times to litigate disputes about support payments and arrears.

In September 2009, Fitzpatrick filed a motion requesting emancipation of and termination of child support for Sean; reduction of child support for Liam, who was starting his freshman year at the University of Tampa; recalculation of the relative child support obligations of the parties because Fitzpatrick had lost his job and now had another dependent to support; and temporary suspension during his unemployment of prior orders requiring that he pay $500 per month toward arrears. The Family Part scheduled a plenary hearing and entered a pendente lite order on October 29, 2009, declaring Sean emancipated and terminating child support for him, modifying the child support for Liam to $194 per week based on potential income of $108,000 per year attributed to Fitzpatrick, and temporarily suspending the arrears payments.

The plenary hearing was held on February 2, 2010. The only witnesses were the two parties. Nitz was represented by counsel; Fitzpatrick appeared pro se.*fn1 In considering Fitzpatrick's motion, the court found it necessary to address allocation of college expenses for Liam because it would affect its order on child support.

At the hearing, Fitzpatrick testified that he lost his job in June 2009 and did not have sufficient funds to pay alimony of $1,000 per month, child support of $194 per week, college expenses for Liam, and the expenses of his new family. He acknowledged that he had received severance pay equal to eight weeks' salary, that he had received unemployment compensation, and that he had obtained new employment ...


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