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Luz M. Marin v. Rafael H. Rodriguez

February 3, 2011

LUZ M. MARIN, PLAINTIFF-RESPONDENT,
v.
RAFAEL H. RODRIGUEZ, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1245-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 6, 2010

Before Judges Reisner and Alvarez.

Defendant Rafael H. Rodriguez appeals a November 10, 2009 order denying his motion for reconsideration of an earlier decision terminating plaintiff Luz M. Marin's child support obligation. The order also awarded plaintiff $2000 in counsel fees. For the reasons that follow, we affirm.

By way of background, the parties divorced on February 16, 2006, and signed a property settlement agreement (PSA) on the same date. They have one child, born February 12, 1989. The PSA designated plaintiff the parent of primary residential custody and defendant agreed to pay $121 per week in child support. Additionally, the parties agreed that, based on their financial circumstances, plaintiff would be responsible for thirty-eight percent of their daughter's college expenses, while defendant would be responsible for sixty-two percent.

On November 7, 2008, after defendant filed an application to modify child support based on changed circumstances, the Family Part terminated his child support obligation. At that juncture, the parties' daughter had moved to a home owned by defendant, although whether he lived there as well was disputed. Plaintiff was simultaneously ordered to pay defendant $127 weekly. The parties' daughter attends County College of Morris and works full-time.

The parties' financial circumstances were still at variance - although both earn relatively modest incomes from employment, defendant owns four houses, one of which is a three-family rental property, while plaintiff owns only her home, to which she added a rental unit.

On plaintiff's ensuing motion for reconsideration, child support was terminated and defendant was ordered to pay $2000 in counsel fees. In reaching his decision, the motion judge relied in part on defendant's failure to provide additional documentation of his claimed contributions towards the child's support. Likewise, plaintiff submitted a certification from the parties' daughter stating that, despite the fact she was attending school full-time, she had been promoted to manager at the restaurant where she worked and was earning $25,000 per year, not much less than her mother's salary. Furthermore, she stated that she did not need actual child support in light of her earnings and requested that her mother not be compelled to pay support because she could not afford it.

Defendant contended his daughter was coerced into signing the certification. He then filed a motion for reconsideration, which was denied on November 10, 2009. It is this order from which appeal is taken.

Defendant raises the following points on appeal:

POINT I

THE COURT ERRED IN CONCLUDING SUA SPONTE THAT THE PARTIES' DAUGHTER WAS EMANCIPATED, BASED SOLELY ON DISPUTED FACTS CONTAINED IN CONFLICTING CERTIFICATIONS, AND WITHOUT CONDUCTING A PLENARY HEARING, THEREBY DEPRIVING DEFENDANT OF DUE PROCESS OF LAW POINT II THE AWARD OF $2,000 IN COUNSEL FEES TO PLAINTIFF IS AN ABUSE OF DISCRETION BECAUSE THE COURT DID NOT CONSIDER REQUIRED FACTORS AND APPLICABLE CASE LAW, BUT CONSIDERED INAPPROPRIATE AND IRRELEVANT FACTORS

As a threshold matter, we do not agree with defendant that the court emancipated the parties' child. The court's statement of reasons did not include that term. The parties were not relieved of their obligation to contribute to the child's expenses as she completes her college education. It is apparent the court assumed, as do we, that the parties will continue to make at will and voluntary intermittent contributions to their daughter's support, education, and incidental costs of living. However, on this record, defendant failed to document the support he allegedly provided to the ...


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