NANETTE BERARD v. LARRY PFEIL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0886-05T30886-05T3

NANETTE BERARD,

Plaintiff-Respondent,

v.

LARRY PFEIL,

Defendant-Appellant.

_______________________________________

 

Submitted June 20, 2006 - Decided July 17, 2006

Before Judges Conley and Cuff.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FD-14-210-93.

Larry Pfeil, appellant pro se.

Michael N. Pedicini, attorney for respondent.

PER CURIAM

Defendant appeals a September 9, 2005, order denying "[d]efendant's motion to overrule the recommendation of the hearing officer" concerning his child support obligations and directing defendant to "continue to pay child support so long as his daughter is enrolled as a full time college student." Although the order suspended defendant's current obligation, effective June 1, 2005, until his child "re-enrolls" in college, then anticipated to be during the 2006 spring semester, the order directs continued payment of $150 arrearages in the meantime. The order was triggered by defendant's motion for a declaration of emancipation and termination of child support effective December 2003. We remand.

We pause, first, to observe that the hearing officer's recommendation should have played no part in the motion judge's determination as it is undisputed that although defendant, a Texas resident, complied with the proper procedures to be heard telephonically, he was not so heard. Further, the hearing officer's order recites: "Original order of support entered in N.J. This order was never modified by another State. . . ." This is not entirely correct as, in 1993 and upon plaintiff's application pursuant to the Revised Uniform Reciprocal Enforcement of Support Act, a Texas court entered a support order. Pursuant to that order, support payments were made by defendant by way of wage garnishments.

But, according to defendant, in December 2003,

I was ordered by the Office of the Attorney General of the State of Texas to stop making payments. I was told by the State of Texas that the child had been emancipated, that according to the State of New Jersey all arrears had been paid, that the account had been closed and my obligation had ended.

In his application for emancipation and termination of child support as of December 2003, defendant asserted that he had no notice from New Jersey officials that its earlier order was still considered to be in effect and that, unbeknownst to him, arrearages had been accumulating "until more than a year had passed and $5,955.75 of arrears had accrued."

On appeal, defendant argues:

[POINT I]: THE ACTIONS OF THE COURT BELOW WERE IN VIOLATION OF NEW JERSEY COURT RULE 5:25-3 AND THE PRINCIPLES OF DUE PROCESS, AND IF THE ORDER OF THE JUDGE IS NOT REVERSED ON OTHER GROUNDS, THE MATTER SHOULD BE REMANDED BACK TO THE COURT BELOW FOR A DE NOVO HEARING.

[POINT II]: THE ISSUES OF JURISDICTION, THE DOCTRINE OF LACHES, AND THE LEGAL STANDING OF THE PARTIES WERE NOT ADDRESSED BY THE COURT BELOW. EACH WAS SUFFICIENT TO BAR PLAINTIFF FROM OBJECTING TO THE MOTION TO EMANCIPATE.

[POINT III]: THERE IS A PRESUMPTION OF EMANCIPATION AT THE AGE OF MAJORITY UNDER NEW JERSEY STATUTORY AND CASE LAW. PLAINTIFF PROVIDED NO EVIDENCE TO REBUT THE PRESUMPTION OF EMANCIPATION. TO THE CONTRARY, THE OVERWHELMING WEIGHT OF THE EVIDENCE SUPPORTED A FINDING THAT THE CHILD IN QUESTION IS EMANCIPATED.

[POINT IV]: POST-MAJORITY SUPPORT, AS APPLIED IN THIS CASE VIOLATES THE RIGHTS TO PRIVACY AND EQUAL PROTECTION GUARANTEED BY THE U.S. CONSTITUTION. THE MOTION TO EMANCIPATE SHOULD HAVE BEEN GRANTED ON THE BASIS THAT POST MAJORITY SUPPORT, AS APPLIED IN THIS CASE, IS UNCONSTITUTIONAL.

We have considered these contentions in light of the record and applicable law. As defendant was, ultimately, telephonically heard by the motion judge, we reject point I. Point IV is without sufficient merit to require further opinion and, as to point III, we see no abuse of discretion in the motion judge's emancipation determination. R. 2:11-3(e)(1)(A),(E). It is, however, point II that we have some concern with. Although we see no merit in the "standing" and "jurisdiction" aspects of defendant's contentions, we do as to his "laches" contention. It seems to be undisputed that Texas officials told him to discontinue support in December 2003. During the September 2005 proceeding before the motion judge, defendant stated:

When the State of Texas told me to stop making the payments, when they began to return my child support payments to me and ordered me to stop paying, the money that was allocated for child support has been redirected and is committed.

These uncontested factual assertions were not addressed by the motion judge. They may or may not support application of the equitable doctrine of laches. See Clarke v. Clarke, 359 N.J. Super. 562, 570 (App. Div. 2003); L.V. v. R.S., 347 N.J. Super. 33, 39-44 (App. Div. 2002).

The order directing child support during college enrollment is affirmed. The order to pay $150 toward arrearages is remanded for reconsideration. We do not retain jurisdiction.

 

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A-0886-05T3

July 17, 2006