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Wesley v. Noor

Superior Court of New Jersey, Appellate Division

June 19, 2013

MONTINA WESLEY, Plaintiff-Appellant,
v.
SIDI Y. NOOR, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 17, 2012.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FM-06-0230-06.

Montina Wesley, appellant pro se.

Underwood & Micklin, LLC, attorneys for respondent (John A. Underwood, on the brief).

Before Judges Sabatino and Maven.

PER CURIAM.

Plaintiff Montina Wesley appeals from an order of September 16, 2011, which denied her motion to vacate the April 15, 2011 order that emancipated the parties' son. We affirm.

The relevant facts, as adduced from the record, are as follows. The parties were divorced in South Carolina in December 1998. Their son, T.W.N., born in 1990, was twenty years old at the time of the motion on appeal.

There have been several post-judgment orders addressing custody, child support, college contribution, health and life insurance, and the sharing of other expenses. Following the son's return to plaintiff's New Jersey home from defendant's home and upon plaintiff's motion, the court ordered in November 2008, among other things, the reinstatement of defendant's child support obligation at $333 per week. The Child Support Sole-Parenting guidelines calculation was based upon the 2007 W-2 wages of $34, 651 for plaintiff and $179, 583 for defendant. The percentage share of income, twenty-five percent for plaintiff and seventy-five percent for defendant, was applied to defendant's contribution towards the child's unreimbursed medical expenses, as well as the child's tuition and expenses incurred at Cumberland County College. Plaintiff was required to provide defendant with "all information regarding the child's schooling, including but not limited to grades, course selection, and tuition bills and expenses within a reasonable time."

In July 2009, the court granted defendant's motion for a reduction in child support due a reduction in his income. Defendant asserted that in April 2009, he was laid off from his medical position but became reemployed in a part-time position earning $71, 136 per year. Despite plaintiff's assertions of defendant's failure to substantiate the circumstance regarding the alleged lay-off and failure to establish an inability to earn his full salary, the court granted the reduction finding a significant change of circumstance pursuant to Lepis v. Lepis, 83 N.J. 139 (1980). The court continued defendant's obligation to contribute towards unreimbursed health and college costs at the rate of seventy-five percent in light of defendant's assurances that the reduced income was only temporary.

Next, in December 2010, defendant sought another child support reduction due to changed financial circumstances, this time due to the suspension of his medical license, effective January 2010, for "inappropriately prescribed controlled substances." The court granted the motion against plaintiff by default, noting that "both [defendant's] counsel and the [c]ourt have attempted to serve and give notice to [plaintiff] to no avail. Due to the failure of [plaintiff] to keep in contact with the [c]ourt, the child support obligation will be reduced by fifty percent." The court also reduced defendant's share of contribution towards college expenses to fifty percent.

In March 2011, defendant filed a motion for emancipation and termination of child support based on his belief that the child had not been enrolled as a full-time student since at least December 20, 2010. Defendant asserted that plaintiff refused to provide proof of enrollment, transcripts or full-time status. Upon a determination that proper notice was provided to plaintiff, the unopposed motion was granted, in part. In his statement of reasons dated April 15, 2011, the judge set forth the general rule of law that emancipation does not occur automatically upon a child reaching the age of eighteen. The judge then ruled that

even if said child has reached the age of [eighteen], if he or she decides to attend college[, ] he or she may still be entitled to support from his or her parents. The [c]ourt finds that [T.W.N.] is [twenty] years old and no longer attending college. Therefore, [T.W.N.] shall be adjudged emancipated, effective the date of this application . . . . As always, the court reserves the right to modify this ...

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