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Charles Cannizzaro v. Barbara Cannizzaro

March 3, 2011

CHARLES CANNIZZARO, PLAINTIFF-APPELLANT,
v.
BARBARA CANNIZZARO, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-235-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 14, 2011 - Decided

Before Judges Lisa and Sabatino.

Respondent has not filed a brief.

Plaintiff Charles Cannizzaro appeals the Family Part's order of October 19, 2009 with respect to issues of (1) the emancipation of his oldest child, and (2) the reallocation of an income tax deduction for the parties' son to his ex-wife, defendant Barbara Cannizzaro.

The parties are the parents of three children: an older daughter born in 1985, a son born in 1990, and a younger daughter born in 1993. The parties divorced in July 2001. The Property Settlement Agreement ("PSA") incorporated into the divorce judgment specified, among other things, that defendant would have primary residential custody of the three children, with plaintiff having regular parenting time. Plaintiff agreed to pay a weekly amount in child support, pursuant to calculations under the published Guidelines.

The record indicates that the older daughter withdrew from school in or about 2000 and that she has had numerous personal problems, including substance abuse. According to a notarized statement that defendant provided to the Probation Department in November 2008, the older daughter's whereabouts were unknown to her at that time. Plaintiff likewise was out of contact with the older daughter, and he had not communicated with her for several years.

Given the fact that the older daughter was well over the age of majority and was not residing in either parent's household, plaintiff attempted to have her declared emancipated. Apparently at plaintiff's request, on November 22, 2008, defendant sent a notarized letter consenting to emancipation to the Probation office in Warren County, the county of enforcement for this child support account. According to defendant's subsequent certification filed in the Family Part, the parties were told that an application to emancipate needed to be made instead in Hunterdon County, the county where the divorce judgment had been entered.

On August 14, 2009, plaintiff filed a motion with the Family Part in Hunterdon County, seeking the older daughter's emancipation. Plaintiff requested that her emancipation be made retroactively effective as of November 22, 2008, the date of defendant's certified letter giving her consent to the emancipation. In her opposition to the motion, defendant did not contest the emancipation itself, but she objected to the proposed effective date, contending that plaintiff had unduly delayed in filing his motion. She also alleged that a retroactive reduction of the child support, which she was receiving for all three children, would cause her financial hardship.

After considering the parties' contentions, the motion judge granted the older daughter's emancipation, but decided to make it effective September 10, 2009, a date erroneously identified by the judge as the date that plaintiff had filed his motion. The judge declined to use the November 22, 2008 effective date proposed by plaintiff.

In her ruling on this issue, the judge recognized that defendant's claim that the older daughter had returned to her home "sporadically since November 2008" was "not dispositive of the retroactive date of her emancipation." The judge further noted that "[n]either party has had a clear obligation to support [the older daughter], as she has been out on her own, and then back home, on and off, for several years." Nevertheless, the court found that "the balance of equities" justified limiting retroactive relief to the date of plaintiff's motion, given plaintiff's delay in filing his application after he had been unsuccessful in obtaining relief from the Probation Office in Warren County.

Plaintiff first argues in his appeal, which has not been opposed by defendant, that the motion judge erred in not making the emancipation effective as of the date of defendant's letter of consent to the Warren County Probation Department. We agree.

As a general matter, N.J.S.A. 2A:17-56.23a prohibits the retroactive reduction of court-ordered child support. The statute's anti-retroactivity requirement has been construed, however, to be inapplicable to a reduction of child support based upon a child's emancipation. As we noted in Bowens v. Bowens, the statute "does not bar the cancellation of child support arrearages which accrued subsequent to the date of the emancipation of the minor." 286 N.J. Super. 70, 73 (App. Div. 1995); see also ...


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