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Kiely v. Kiely

Superior Court of New Jersey, Appellate Division

November 19, 2013

PATRICIA KIELY, Plaintiff-Respondent,
v.
FRANCIS KIELY, Defendant-Appellant

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 21, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-1768-93.

Karen Kirchoff Saminski, LLC, attorneys for appellant (Thomas Sidoti, on the brief).

Respondent has not filed a brief.

Before Judges Harris and Kennedy.

PER CURIAM

Defendant appeals from that portion of a Family Part order entered on August 31, 2012, which denied, in part, his motion to declare his daughter emancipated. The order declared that his daughter "is emancipated for the period from July 8, 2011 through January 26, 2012, and is determined to be unemancipated effective January 27, 2012." Defendant argues that the motion judge erred in "not finding [the daughter] emancipated as a matter of law" and in determining that the daughter's failure to enroll and/or inconsistent attendance at any school after she withdrew from high school in 2009 constituted a "hiatus under the case law."

For reasons expressed hereinafter, we reverse that portion of the Family Part order declaring the daughter "unemancipated" as of January 27, 2012, and we remand the matter to the Family Part for further proceedings consistent with this opinion.

I.

Plaintiff and defendant were married and had two children, one of whom, the daughter, was born in 1993. A judgment of divorce was entered on September 14, 1993, dissolving their marriage and granting "primary residential custody" of the children to plaintiff and requiring defendant to pay weekly child support. At some point, defendant moved to Florida, but remained, more or less, in contact with the children and duly made his child support payments.

In September 2009, the daughter, then seventeen years of age, withdrew from the public high school she had attended since 2006 because, as she later explained, she was simply "indifferent" to school. In fact, due to her excessive "lates and absences" she had earned relatively few course credits while attending the high school.

After learning of the daughter's withdrawal from school, defendant filed a pro se motion to have the daughter declared emancipated. On July 8, 2011, another Family Part judge denied defendant's motion, explaining that while "there is a question" about the daughter's "good faith efforts" to enroll in a high school equivalency program, the daughter nonetheless had not "moved beyond the sphere of influence and responsibility exercised by her parents[.]" Defendant chose not to appeal that order, but instead engaged counsel to file a new motion seeking the same relief.

On November 3, 2011, defendant, represented by counsel, filed another motion seeking to have the daughter declared emancipated, as well as other relief. At a conference prior to a plenary hearing, the motion judge ordered the parties to exchange discovery. Later, finding that plaintiff had not provided discovery and had apparently made misrepresentations pertaining to discovery, the judge "removed" plaintiff as a party and ordered the daughter to be substituted in her place.[1] The judge also ordered the daughter to provide discovery to defendant. A plenary hearing on the daughter's emancipation was thereafter held on May 31 and July 31, 2012.

The transcripts from both hearings indicate plainly that discovery remained outstanding on each occasion. Also, while some discovery was apparently provided just prior to the start of the July plenary hearing, defendant's counsel stated it was still incomplete and ...


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