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McDermond v. McDermond

Superior Court of New Jersey, Appellate Division

September 24, 2013

JOHN MCDERMOND, Defendant-Appellant


Submitted September 11, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1882-96.

John McDermond, appellant pro se.

Theresa Belsky, respondent pro se.

Before Judges Sapp-Peterson and Lihotz.


Defendant John McDermond appeals from a Family Part order requiring continued child support for the parties' youngest child and fixing the date of emancipation of the two older children effective July 17, 2012. Defendant argues the older children actually had been emancipated much earlier, resulting in his overpayment of support, which essentially would cover any remaining future child support responsibility toward the youngest child. Judge Edward J. McBride, Jr., did not disagree with the legal premise, but noted he had insufficient information to make the required calculations. Therefore, he entered his order fixing an emancipation date and setting support for the remaining unemancipated child, without prejudice. Further, the judge instructed the parties to file case information statements to allow full review of the appropriate support. Defendant argues the judge should have ended his child support obligation, crediting the overpayment against future support.

Following our review, we conclude Judge McBride's order was not final. Because the order was interlocutory, and defendant failed to seek leave to appeal pursuant to Rule 2:5-6(a), the appeal must be dismissed without prejudice. As required by Rule 2:2-3(a)(1), this court has jurisdiction to consider appeals "from final judgments of the Superior Court trial divisions[.]" In all other instances, jurisdiction to consider an interlocutory matter is only upon leave granted. R. 2:2-4. As we noted in Christensen v. Christensen, 376 N.J.Super. 20, 24 (App. Div. 2005), a trial court order determining interim child support and ordering the parties to provide additional information is not a final order concerning child support, but merely interlocutory, requiring a motion for leave to appeal in order to seek appellate review. Although we have the authority to grant leave to appeal nunc pro tunc, such a procedure is inappropriate because the record remains incomplete. We add these brief comments to aid the parties in their future resolution of their disputes.

Defendant initiated a post-judgment motion, which included requests to emancipate the parties' two older children and eliminate his obligation to pay future child support for the remaining unemancipated child. At the time the motion was reviewed by the Family Part, the parties agreed their two older children, who were ages twenty-three and twenty-two, had completed college and were emancipated. However, they disagree regarding defendant's future support obligation for their youngest child. The existing child support order required defendant to pay $219.31 per week for the support of three children. Defendant argued the dates of emancipation should have been set at the college graduation dates of the two older children, June 11, 2010 and May 19, 2012, respectively. Using those dates, defendant asserted he had overpaid support, which when credited against his future support for the youngest child who had two remaining years of college, defendant calculated he would have satisfied any sums owed. In advancing this position, defendant argued the calculation of the amount of support for the youngest child was merely one-third of the previously ordered amount.

Judge McBride agreed the date of emancipation terminated the right to receive child support, but determined defendant's application provided insufficient information to calculate the remaining support obligation. Therefore, he granted emancipation of the two older children, effective July 17, 2012, the date of defendant's motion, and temporarily set support at $125 per week, without prejudice, for the youngest child. Further, he ordered the parties to file and exchange case information statements to provide proofs allowing computation of a final amount of support.

Defendant's challenge to Judge McBride's interim order suggests neither party moved to modify support, and consequently, when the emancipation dates are adjusted retroactively to the date of each child's college graduation, his overpayment will significantly increase, obviating any further obligation to pay child support. As Judge McBride correctly noted, defendant's legal assertion that the child support order is allocated one-third for the benefit of each child, and therefore, it would be reduced by one-third as of June 11, 2010, and May 19, 2012, is erroneous. The judge properly explained to defendant that he had the burden of proving the financial circumstances applicable as of June 11, 2010, and again as of May 19, 2012, so that separate child support calculations could be made.

Contrary to his assertion otherwise, defendant's request for emancipation triggers a modification of child support. As of June 10, 2010, to allow the court to recalculate child support, including an appropriate award for the unemancipated youngest child pursuant to the New Jersey Child Support Guidelines, R. 5:6A, as well determining a fair and just child support award for an unemancipated college student, under N.J.S.A. 2A:34-23(a)(3), defendant must present documentation to allow a factual review of his financial circumstances on that date. Plaintiff should respond with documentation reflecting her financial circumstances, as well as the needs of the children. Similar proofs are required to again adjust child support for the youngest child, who became a college student in Fall 2012. Given the inherent equitable powers of the Family Part, support orders, including those setting emancipation events, "may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23; see also Lepis v. Lepis, 83 N.J. 139, 145-46 (1980) (same).

Defendant's suggestion that the trial judge mistakenly applied N.J.S.A. 2A:17-56.23a, prohibiting retroactive modification of child support in certain instances, is incorrect, as Judge McBride clearly explained the failure to supply the requisite information precluded his ability to make a final child support adjustment. Once the requisite documentation is filed, a final order may be entered. Further, the court's order does not preclude defendant's receipt of full credit for an overpayment, if applicable, and this could require a partial abatement of ongoing support to recoup the overpayment. The temporary order reflects a proper exercise of judicial discretion. Defendant's contentions on these issues are meritless. R. 2:11-3(e)(1)(E).

The appeal is dismissed as interlocutory.

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