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Betsy L. Kilgore, N/K/A Betsy L. Oswald v. Louis A. Kilgore

November 5, 2012

BETSY L. KILGORE, N/K/A BETSY L. OSWALD, PLAINTIFF-RESPONDENT,
v.
LOUIS A. KILGORE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-986-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 1, 2012

Before Judges Fasciale and Maven.

Defendant Louis Kilgore appeals from Family Part post-judgment orders denying his motion to enforce litigant's rights and modify the parties' dual judgment of divorce (JOD) and motion for reconsideration. For the following reasons, we affirm in part and reverse in part.

Plaintiff Betsy Oswald (Oswald) and Defendant Louis Kilgore (Kilgore) were married in 1983, and had four children: Gary,*fn1 in 1986; Geri, in 1987; Mary, in 1989; and Elizabeth, in 1991. On May 6, 2008, the parties were granted a dual JOD, which incorporated their marital settlement agreement (MSA).

On August 23, 2010, following Oswald's remarriage and relocation to Pennsylvania, the parties entered into a consent order amending the JOD and MSA. The consent order recognized certain changed circumstances, namely that Oswald remarried and relocated to Pennsylvania, and the four children resided with Kilgore. The parties agreed to vacate Kilgore's obligation to pay alimony and child support to Oswald, as well as terminate his obligation to maintain life insurance for Oswald's benefit.

On August 12, 2011, Kilgore filed a motion to enforce litigant's rights and modify the parties' JOD, specifically seeking an order to: (1) compel Oswald to file an amended 2010 income tax return to reflect that she was not entitled to claim Mary and Elizabeth as dependents for the year 2010; (2) permit Kilgore to claim Elizabeth as a dependent on his 2011 income taX return and every year thereafter until she becomes emancipated;

(3) modify the JOD and MSA to direct Oswald to contribute towards child support and college educational expenses for Mary and Elizabeth; (4) direct Oswald to pay counsel fees and costs; and (5) direct Oswald to make all support payments through the Somerset County Probation Department. Oswald filed an opposition and cross-motion for counsel fees.

At the time of Kilgore's motion, Gary and Geri were emancipated but living in Kilgore's home with their younger unemancipated siblings, Mary and Elizabeth. Kilgore asserted that his salary had significantly decreased since the JOD and that expenses for the parties' two unemancipated children at home and at college were continuing to accumulate.

Following oral argument, the motion judge issued an order and written decision denying Kilgore's motion with prejudice, except for the portion seeking child support and contribution toward college expenses. The judge granted Oswald's cross-motion for counsel fees.

The judge first acknowledged and found that, from the time of the JOD, the parties sustained permanent and substantial changed circumstances. Next, the court concluded that there was no child support obligation to modify following the entry of the consent order and interpreted Kilgore's request as one to establish child support. In that regard, the court recognized that Mary and Elizabeth were entitled to the support of their parents, but because they were away at college and living on-campus, the New Jersey Child Support Guidelines*fn2 did not apply. The court indicated that it must consider, among other things, the following factors provided by N.J.S.A. 2A:34-23(a) when it is not bound by the court rules in determining child support:

(1) Needs of the child;

(2) Standard of living and economic circumstances ...


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