MAXIE LEE RIVERS v. LETITIA COX-RIVERS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6803-03T56803-03T5

MAXIE LEE RIVERS,

Plaintiff-Respondent,

vs.

LETITIA COX-RIVERS

(formerly Edna Rivers),

Defendant-Appellant.

__________________________________

 

Argued: September 12, 2005 - Decided:

Before Judges Cuff and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Middlesex County, Docket No. FM-12-15575-88.

Letitia Cox-Rivers, appellant, argued the cause pro se.

Raymond P. DeMarco argued the cause for respondent (DeMarco & Lore, attorneys; Mr. DeMarco, on the brief).

PER CURIAM

This appeal follows the proceedings conducted on remand directed by our last opinion in this matter issued on May 24, 2004. Defendant argues that the judge committed multiple errors in the required recalculation of child support and reconsideration of plaintiff's child support obligation for his college-age children.

The history of the matrimonial litigation is set forth in our last opinion A-4554-02. Briefly, the parties were divorced on January 30, 1989. Three children were born of the marriage: Nicole, Jacquelyn and Maxie II (Max). Although defendant was initially awarded custody of all of the children, Nicole went to live with her father, plaintiff Maxie Lee Rivers, when she was fifteen.

This post-judgment litigation commenced on April 3, 2000, when defendant filed a pro se motion seeking an increase in the child support paid by plaintiff for Jacquelyn and Max and a reduction in the amount of child support paid by defendant for Nicole. The motion was not heard until February 2001. At this time, all three children were in college. Nicole was twenty-two, working full time and attending the Fashion Institute of Technology (FIT) part time; Jacquelyn was nineteen and a student at Lehigh University (Lehigh). Max was a first-year student at Adelphi University (Adelphi). Plaintiff paid nothing towards the college expenses for Jacquelyn and Max. By order dated February 23, 2001, the judge increased plaintiff's child support obligation from $150 to $156 weekly.

Defendant appealed. The order was vacated due to a conflict of interest created by the prior representation of plaintiff by the motion judge while the parties were separated. Rivers v. Cox-Rivers, 346 N.J. Super. 418, 420-21 (App. Div. 2002).

On January 28 and 29, 2003, the parties appeared before another judge for an evidentiary hearing. By this time, Nicole was twenty-five, working full time and still attending FIT part time. The parties contested whether she was emancipated and, if so, the date of emancipation. Jacquelyn was twenty-two and had graduated from Lehigh. She was considered emancipated as of May 2002. Max was in the second semester of his junior year at Adelphi. By this time, the amount of plaintiff's contribution to the educational expenses of his children was at issue. Defendant also sought contribution from plaintiff for the expenses of Max's last year in a private high school. This was contested by plaintiff.

An order was entered on January 29, 2003, that memorialized the trial judge's rulings denying defendant's request for plaintiff to contribute to the college expenses of Jacquelyn, denying defendant's request for an increase in child support, denying defendant's request to declare Nicole emancipated as of May 2000, and denying defendant's request for plaintiff to contribute to Max's high school expenses. The judge ordered plaintiff to contribute to the college expenses of Max and terminated plaintiff's child support obligation to all children. Plaintiff was awarded a credit for support already paid.

On appeal, we held that the basis of the credit awarded to plaintiff could not be discerned from the record for three reasons: 1) it was not clear whether the $156 paid by plaintiff to defendant was for one or two children; 2) full credit for child support payments while Jacquelyn and Max were in college was inconsistent with the Child Support Guidelines; and 3) Max was still a student and not emancipated. Therefore, we reversed and ordered the judge on remand to recalculate the reduction of plaintiff's child support obligations for Jacquelyn and Max for the time they were in college, to reinstate plaintiff's child support obligation for Max until he finished college, and to reconsider the issue of Max's private school expenses. We also held that the trial judge erred in fixing Nicole's emancipation at May 2002, that Nicole should have been deemed emancipated as of May 2000, and that defendant is entitled to a credit for the amount of child support she paid on behalf of Nicole between May 2000 and May 2002.

On remand, the trial judge conducted the reconsideration and recalculation on the existing record. Defendant was awarded a one-month credit on her child support obligation for Nicole. Plaintiff was awarded credit for a full year of child support paid for Jacquelyn during her first year of college. Plaintiff was required to pay child support for Jacquelyn and Max during the months of June, July and August. Jacquelyn was emancipated as of May 2002. The judge also denied defendant's request for contribution to Max's high school expenses because his enrollment in the private school was a unilateral decision by defendant. Following an examination of the court file, the judge found that the credits due to plaintiff exceeded the child support owed by plaintiff to defendant and concluded that neither party owed support to the other.

On appeal, defendant argues that the trial judge erred in her calculation of child support paid by defendant for Nicole, that plaintiff should not have been relieved of a child support obligation during the college academic year, that Jacquelyn should not have been emancipated, that plaintiff should be required to contribute to Max's high school expenses, and that the trial judge made no provision for Max's last year of college. Our review of the record demonstrates that most of these arguments are without merit, but that the trial judge erred in limiting the credit due to defendant for child support paid for Nicole, and in limiting plaintiff's child support obligation only to the summer months.

Defendant's contention that the trial judge did not acknowledge plaintiff's obligation to contribute to Max's final year of college is without merit. In her July 16, 2004 letter opinion, the judge stated, "Plaintiff shall continue to be responsible for 50% of Max's college expenses for his senior year." Although the amount had not been quantified, the obligation has been mandated.

We also will not disturb the order rejecting defendant's request for plaintiff to contribute to Max's final year in high school. The trial judge recognized, as do we, that defendant's motivation to enroll Max in the Gow School was worthy. Nevertheless, she did not consult plaintiff prior to enrollment and never asked for any contribution for these expenses until Max was well-launched on his college career. Indeed, the record reflects that defendant had resolved to send Max to this school with or without plaintiff's financial support.

Defendant's contention that the judge erred by establishing an emancipation date of May 2002 for Jacquelyn is also without merit. Jacquelyn graduated from college on this date. The record does not establish that the parties contemplated a continuing child support obligation following graduation from college, particularly when the child is working full time and pursuing graduate studies on a part-time basis.

We conclude, however, that defendant's argument that she was entitled to credit for child support paid for the benefit of Nicole until May 2002 instead of May 2000 has considerable merit. Indeed, counsel conceded at oral argument that he could not explain or support the one-month rather than a two-year credit for defendant.

Defendant filed her motion for modification of child support and contribution to college expenses on April 3, 2000. Any order effecting child support may be retroactive to the date the motion is filed, N.J.S.A. 2A:17-56.23a, although an emancipation order that requires a retroactive adjustment of sums due is not subject to the statutory anti-retroactivity prohibition. Bowens v. Bowens, 286 N.J. Super. 70, 73 (App. Div. 1995). This court held that Nicole should be deemed emancipated as of May 2000 rather than May 2002. It must be recalled that defendant sought and was denied an order deeming Nicole emancipated as of May 2000, and terminating her child support obligation as of that date. Defendant's child support obligation continued although it was setoff against plaintiff's child support obligation to defendant. The setoff should have terminated in May 2000, after which plaintiff owed defendant the full child support established for Jacquelyn and Max. The setoff did not terminate until January 2003. Therefore, defendant was entitled to a credit for child support paid between May 2000 and January 2003. The trial judge's calculations do not reflect this undisputed fact. Therefore, we remand for a recalculation of the amount due by plaintiff to defendant, and the credits, if any, to which each party is entitled.

The trial judge required plaintiff to pay child support for Jacquelyn through May 2002 and for Max through the date of his graduation from college, but only for the months of June, July and August. Defendant argues that this decision ignores the fixed costs of her maintaining a home for the children throughout the year. We agree.

We noted in our prior opinion that the Child Support Guidelines may not be used to fix the appropriate child support amount for college age children because some of the college expenses paid by parents, such as shelter, are included in the Child Support Guidelines awards. A supporting parent, however is not freed from a child support obligation when he or she assumes an obligation to contribute to the college education of the children. In Hudson v. Hudson, 315 N.J. Super. 577, 585 (App. Div. 1998), we held that a trial judge erred when the judge did not consider the child's expenses which remained the obligation of the custodial parent, such as shelter. See also Finger v. Zenn, 335 N.J. Super. 438, 442 (App. Div. 2000), certif. denied, 167 N.J. 633 (2001) (supporting parent's child support obligation reduced but not eliminated while child away at school).

Here, it was undisputed that Jacquelyn and Max returned to defendant's home during recesses and vacations. It is undisputed that defendant maintained a three bedroom home for the children. The costs for maintaining the home do not diminish because the children are at school. The child support and education expense scheme crafted by the trial judge places a disproportionate financial burden on the custodial parent.

We recognize that both parties have limited means. We appreciate that the payment of college expenses for the children imposes a financial strain on plaintiff. Here, however, the elimination of any child support contribution during the school year places a disproportionate burden on defendant. Therefore, we are required to reverse and remand for reconsideration of plaintiff's child support obligation once again.

Reversed and remanded for recalculation of credits and amounts due between the parties and reconsideration of plaintiff's child support obligation.

 

Plaintiff conceded that he was obligated to contribute to the college expenses of his children.

(continued)

(continued)

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A-6803-03T5

November 16, 2005