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Majid Reza Azimi v. Colleen Mcveigh-Azimi

June 20, 2012

MAJID REZA AZIMI, PLAINTIFF-APPELLANT,
v.
COLLEEN MCVEIGH-AZIMI, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-44619-89.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically Argued May 29, 2012

Before Judges A. A. Rodriguez and Fasciale.

Plaintiff former husband appeals from orders dated January 21, 2011 and August 15, 2011, "unemancipating" his twenty-one year-old daughter (R.A.), reinstating and increasing his child support obligation, and requiring him to maintain health and life insurance benefiting R.A. We reverse, remand, and direct the judge to conduct a plenary hearing to address whether plaintiff should be obligated to pay college tuition expenses and, if so, what amount will constitute his contribution.

The parties were married in 1989, had one child, but separated prior to her birth. In 1992, the court entered a dual judgment of divorce (JOD). Pursuant to the JOD, plaintiff was obligated to pay child support of $125.00 per week.

Plaintiff asserts that defendant "persistently rebuffed and frustrated" his "ongoing efforts" to establish a relationship with R.A., and that R.A. herself has failed and refused "to respond to [his] continuing efforts." On June 18, 2010, R.A. graduated from high school after five years of attendance, and has subsequently attended college.*fn1

In July 2010, plaintiff filed a motion seeking to emancipate R.A. and terminate his support and insurance obligations. The motion was unopposed,*fn2 and on October 12, 2010, a Passaic County judge entered an order granting plaintiff's motion. The order declared R.A. emancipated as of her high school graduation date, terminated plaintiff's child support and medical and life insurance obligations, and vacated any wage execution in effect.*fn3

Shortly thereafter,*fn4 defendant filed a motion to require plaintiff to pay child support by wage execution, pay child support arrears, continue health and life insurance coverage, and contribute to R.A.'s college education. Plaintiff opposed the motion. On January 21, 2011, the same judge conducted oral argument, issued an oral decision, and stated:

I am going to unemancipate[] the child. I believe that the [c]court's [October 12, 2010] decision was entirely proper in finding that the child was emancipated based upon the proof that was presented to the [c]court at the time it entered its order. However, you can under the law unemancipate a child. And in this instance the defendant was able to demonstrate that the child is enrolled on a full time basis at college. And, therefore, the [c]court is going to unemancipate her and make it effective as of [June 18, 2010].

Regarding defendant's application for contribution to college costs, the judge stated:

I can't just on the certifications alone make that decision. It has to be done by way of a plenary hearing consistent with the case law.

So the [c]court is going to direct that a plenary hearing be held. Before that time we're going to fix a case management conference date. . . . And then we'll see what discovery might be needed on both sides in order to flesh out what's needed to comply with the Newburgh factors,*fn5 which [are] really going to govern what, if any, contribution should be made by the plaintiff in that regard.

Without conducting a plenary hearing, the judge then entered the order dated January 21, 2011 reestablishing child support*fn6 and directing plaintiff to continue health and life insurance coverage benefiting R.A. Although defendant had not sought additional child support, the order increased child support to $231.00 per week. The order contemplated that a "case management conference [be scheduled] . . . to address discovery needed for plenary hearing on contribution to college," and a ...

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