EILEEN POLNER v. HOWARD POLNER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2451-04T22451-04T2

EILEEN POLNER,

Plaintiff-Respondent,

v.

HOWARD POLNER,

Defendant-Appellant.

___________________________________

 

Submitted September 13, 2005 - Decided

Before Judges Coburn and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FM-12-985-97.

Apicelli & Costanzo, attorneys for

appellant (Nicholas C. Apicelli, on the brief).

Eileen Polner, respondent pro se.

PER CURIAM

In this matrimonial case, defendant, Howard Polner, appeals from a trial court order denying his motion for several forms of post-judgment relief. We affirm.

The parties were married in 1974 and divorced in 1997. They have three children, two of whom, Laurie-Ann and Jason, are now adults, and one, Andrew, who is still a minor. The final judgment of divorce reflected the parties' agreement that defendant would pay day care expenses for the unemancipated children, that plaintiff would claim Andrew as an exemption for income tax purposes and defendant would claim Jason as an exemption, and that child support would be reduced when Jason was emancipated. A subsequent order entered on March 23, 1998, provided that the parties would each pay fifty percent of the cost of preparing a Qualified Domestic Relations Order (QDRO).

On November 1, 2004, defendant filed a motion seeking a wide variety of relief. We mention here only those that are relevant to this appeal. Defendant sought to emancipate Jason "retroactive to his eighteenth birthday" and to compel defendant to reimburse him for child support payments made after Jason's eighteenth birthday. His application was not supported by legally competent proof of Jason's age or by proof that Jason had previously been declared emancipated. Defendant also asked the court to reduce his child support obligation and eliminate his obligation to pay for Andrew's day care expenses, to require plaintiff to pay the entire expense of preparing the QDRO, and to permit defendant to claim Andrew as a tax exemption. Plaintiff agreed to entry of a current declaration of emancipation for Jason and to ending day care payments for Andrew, but opposed reimbursement for any past payments. She also cross-moved for an increase in child support for Andrew.

Judge Berman denied both parties' applications with respect to increasing or decreasing child support, because neither party had filed a current Case Information Statement (CIS). He declared Jason emancipated as of November 1, 2004, the date defendant's motion was filed, and vacated defendant's obligation to pay for Andrew's day care expenses as of the same date. Because defendant had inexplicably delayed for several years in filing the emancipation request and the request to end his day care payments for Andrew, the court denied the request for retroactive reimbursement for those payments, other than for payments made since November 1, 2004. He ordered both parties to pay their fifty percent shares of the QDRO expenses within ten days and to exchange current CIS forms within thirty days. He also denied the application to permit defendant to claim Andrew as a tax exemption, since the parties had agreed in their divorce settlement that plaintiff would claim an exemption for Andrew.

On this appeal, defendant raises the following contentions:

POINT I: N.J.S.A. 2A:17-56.23A, WHICH BARS RETROACTIVE MODIFICATION OF ARREARAGES DOES NOT APPLY TO A RETROACTIVE TERMINATION OF THE SUPPORT OBLIGATION BASED UPON THE EMANCIPATION OF THE CHILD.

POINT II: A CASE INFORMATION STATEMENT REQUIRED BY R. 5:5-2 SHALL BE FILED AND SERVED IN ALL CONTESTED FAMILY ACTIONS, EXCEPT SUMMARY ACTIONS, IN WHICH THERE IS ANY ISSUE AS TO CUSTODY, SUPPORT, ALIMONY OR EQUITABLE DISTRIBUTION. THE COURT, ON EITHER ITS OWN OR A PARTY'S MOTION MAY, ON NOTICE TO ALL PARTIES, DISMISS A PARTY'S PLEADING FOR FAILURE TO HAVE FILED A CASE INFORMATION STATEMENT.

POINT III: RESPONDENT SHOULD NOT BE PERMITTED TO BENEFIT BY HER CONDUCT WHICH DIRECTLY AND PROXIMATELY YIELDED APPELLANT'S PAYMENT OF DAY CARE EXPENSES TO RESPONDENT IN DURATION AND AGGREGATE AMOUNT BEYOND WHAT THE LAW REQUIRED, AND APPELLANT IS ENTITLED TO REIMBURSEMENT FOR ALL OVERPAYMENTS MADE AS A RESULT OF RESPONDENT'S CONDUCT.

POINT IV: RESPONDENT'S CONDUCT WHICH RESULTED IN THE FAILURE TO COMPLETE THE PREPARATION OF THE QDRO SINCE THE MARCH 23, 1998, COURT ORDER, SHOULD HAVE RESULTED IN SANCTIONS, THE LEAST OF WHICH, WOULD BE TO REQUIRE HER TO PAY 100% OF THE COSTS OF PREPARATION OF SAME.

POINT V: THE TRIAL COURT MAY EXERCISE ITS DISCRETION IN ALLOCATING TAX EXEMPTIONS, SUBJECT TO ACCEPTANCE BY THE INTERNAL REVENUE SERVICE AND THE COURT MAY PROPERLY SEEK TO MAXIMIZE THE NET INCOME OF THE PARTIES IN THE ALLOCATION OF TAX DEDUCTIONS.

 
Having reviewed the record, we conclude that these contentions are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm for the reasons set forth in Judge Berman's cogent oral opinion, placed on the record on January 20, 2005.

Affirmed.

(continued)

(continued)

2

A-2451-04T2

September 23, 2005