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Lynda Timinsky v. Lawrence Timinsky

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 1, 2011

LYNDA TIMINSKY, PLAINTIFF-RESPONDENT,
v.
LAWRENCE TIMINSKY, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-144-98.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 11, 2011

Before Judges Yannotti and Skillman.

This is an appeal from the part of a post-judgment order in a matrimonial action entered on December 4, 2009, which declared the parties' son Samuel to be emancipated and for that reason relieved plaintiff of the obligation to pay defendant $118 per week for Samuel's support.

Two prior post-judgment orders had been entered during the four-month period preceding the December 4th order. An August 14, 2009 order obligated defendant to repay his 60% share of Samuel's student loans from 2006-10, which totaled $33,736.65, and also obligated him to pay another $3500 for the costs of Samuel's first year of college that had not been covered by student loans. This order also transferred residential custody of Samuel from plaintiff to defendant and imposed the $118 per week child support obligation of which plaintiff was relieved by the December 4th order.

A September 25, 2009 order obligated defendant to "[t]ake responsibility for his 60% share of Samuel's Sallie Mae loans by lump sum payment or consolidation within 30 days." The order also granted plaintiff's motion for a recalculation of child support. However, despite finding that "Samuel is in college and does not reside with Defendant during the school year," this order continued plaintiff's obligation to pay defendant child support for Samuel.

Plaintiff again asked for reconsideration of her obligation to pay child support for Samuel, which apparently resulted in entry of the part of the December 4, 2009 order challenged on this appeal. Plaintiff's motion did not seek a declaration of Samuel's emancipation; it only sought reconsideration of her obligation to pay child support. Plaintiff's motion also did not seek any relief from her obligation to pay 40% of Samuel's college expenses for the 2009-10 school year.

In explaining its reasons for relieving plaintiff of a child support obligation for Samuel, the court stated:

I don't see that the Dad is the custodial parent of the boy.

He's in his last year of college. He had his own apartment last year in the summer, for a month. He lived with his girlfriend for a month. He went overseas for a month. Whatever he did, he doesn't live at the Dad's house. Dad doesn't have a house -- bedroom for him, that's allocated to him alone, that's set up for his care and supervision.

It's my position . . . that the child is really emancipated, but the parents continue to owe for the college education.

Which means the Father is not entitled to a child support set off against the child support due the Mom, for Jessica, the daughter.

The trial court failed to make the finding that Samuel had "moved 'beyond the sphere of influence and responsibility exercised by [his parents] and obtain[ed] an independent status of his . . . own'" required to justify a declaration of emancipation. Fillippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)). Furthermore, the imposition of a duty upon both parties to continue paying for Samuel's college education is inconsistent with a determination that he is emancipated. See Tretola v. Tretola, 389 N.J. Super. 15, 19-20 (App. Div. 2006). However, the court's finding that Samuel spends only limited time at defendant's residence and that there is no room set aside for him there provided an adequate basis for relieving plaintiff of a child support obligation for him. Moreover, that finding is sufficiently supported by Samuel's letters to the court and the statements made by defendant at the December 4, 2009 hearing.

Accordingly, we amend paragraph two of the December 4, 2009 order to eliminate the declaration of emancipation and instead provide that plaintiff is relieved of the obligation to pay defendant child support, and as thus amended, that part of the order is affirmed.

20110201

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