BONNIE H. CASEY v. BRIAN J. CASEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2406-05T52406-05T5

BONNIE H. CASEY,

Plaintiff-Respondent,

v.

BRIAN J. CASEY,

Defendant-Appellant.

_______________________________________

 

Submitted October 18, 2006 - Decided November 27, 2006

Before Judges C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-25875-78.

Gebhardt & Kiefer, attorneys for appellant (William J. Rudnik, on the brief).

De Marco and Lore, attorneys for respondent (Raymond P. De Marco, on the brief).

PER CURIAM

A final judgment of divorce was filed in this action on November 20, 1979, dissolving the bonds of marriage between plaintiff Bonnie H. Casey and defendant Brian J. Casey. Defendant appeals from provisions of an order entered on December 2, 2005, which denied his motions to: amend a September 2, 2005, order to emancipate the children of the marriage as of December 31, 1997; and cancel any support arrearages. For the reasons that follow, we affirm.

Plaintiff and defendant were married on April 28, 1973. The parties had two children: B.C., who was born on November 24, 1975; and H.C., who was born on January 5, 1978. When the parties were divorced in 1979, plaintiff was awarded custody of the children and defendant was ordered to pay child support. Defendant thereafter moved to Wisconsin. Defendant failed to make all of the required support payments and as of 2005, the arrearages totaled about $45,000.

On or about August 8, 2005, defendant filed a motion seeking a declaration that B.C. and H.C. were emancipated as of December 31, 1997. Defendant also sought application of his support payments from 2000 to 2005 to the arrearages as of December 31, 1997, and cancellation of any other arrearages.

In support of his motion, defendant asserted that B.C. graduated from high school in 1994, and went to college and received his degree in May 1999. Defendant also stated that H.C. graduated high school in 1996, and attended a two-year community college over a four-year period. Defendant claimed that since 2000 he had made support payments totaling $23,700. Defendant said that these payments should be applied to the arrearages for the period through December 31, 1997, which he said were $25,700.12, and no further support payments should be required.

Plaintiff filed a certification in response to the motion. She did not oppose B.C.'s emancipation as of May 1999 when he graduated from college. However, plaintiff stated that B.C. made education loans totaling $32,000. Plaintiff said that defendant had not contributed to these college expenses. Thus, plaintiff asserted that to the extent that there had been any "overpayment" of support, it should be applied to B.C.'s school expenses rather than to defendant's support arrearages.

Plaintiff also stated that H.C. graduated from community college with an Associate's Degree. Plaintiff noted that H.C. was working but she still intended to continue her education at a university and obtain a Bachelor's Degree. Plaintiff said that H.C. had not applied because she lacked sufficient funds. Plaintiff stated that the earliest H.C. should be deemed emancipated was the date when she completed all of the courses required for her Associate's Degree and an internship with a local police department. Plaintiff added that she made loans for the children's college expenses. She had borrowed $6,790 and still owed $3,738.39. Plaintiff said that she had incurred other expenses for the children's education, which she had paid with her income as a public school teacher.

The judge heard defendant's motion on September 2, 2005, and filed an order on that day which declared that B.C. and H.C. were emancipated as of the date of defendant's motion. The order stated that all of defendant's support arrearages would remain intact and must be paid. The order also stated, "All requested relief not granted is hereby deemed denied without prejudice."

In an accompanying written decision, the judge noted that defendant had substantial child support arrearages and therefore was seeking relief with "unclean hands." The judge wrote that in view of defendant's wrongdoing, it would be contrary to public policy to grant the relief defendant was seeking. The judge said that even if defendant wanted to argue that he should pay less than the accumulated amount of his obligation towards B.C.'s education and was therefore deserving of some retroactive credit on his unpaid support, he was barred from doing so by the doctrine of laches. The judge additionally determined that defendant would not be required to contribute towards any expenses incurred by H.C. should she continue her education.

Defendant filed a motion on or about October 26, 2005, which sought the emancipation of the children as of December 31, 1997; cancellation of all arrears; and a remedy for certain alleged tortious acts by plaintiff and her attorney. The judge denied the motion by order filed on December 2, 2005. This appeal followed.

In his initial brief, defendant raises the following points: 1) both children should have been emancipated retroactively to their respective college education graduation dates; 2) any child support arrears incurred subsequent to the appropriate emancipation dates for each of the children should be vacated; 3) college costs should not have been considered by the trial judge in determining the emancipation dates or calculating child support arrears; and 4) the trial judge should have held a plenary hearing because a factual dispute existed as to the appropriate date for emancipation of the children.

In her brief, plaintiff argues that the appeal should be "denied" and the order affirmed based on the application of the "unclean hands" doctrine. Plaintiff also contends that the appeal should be "denied" because defendant did not appeal the order of September 2, 2005, and failed to make a timely motion for reconsideration of that order in the trial court.

In his reply brief, defendant argues that the "unclean hands" doctrine should not be applied in this matter. Defendant also contends that the filing of his second motion and this appeal from the denial of that motion was proper.

We first consider plaintiff's contention that we should not entertain defendant's appeal from the order filed on December 2, 2005. Plaintiff contends that defendant is essentially seeking review of the judge's September 2, 2005, order and should not be permitted to challenge that order because he did not file a notice of appeal from that order, and failed to file in the trial court a timely motion for reconsideration.

We disagree. As we have previously pointed out, the September 2, 2005, order expressly stated that, "All requested relief not granted is hereby deemed denied without prejudice." Because all relief was denied "without prejudice," the September 2, 2005, order did not by its terms foreclose defendant from making another application for retroactive emancipation of B.C. and H.C. and the cancellation of all support arrearages. Consequently, defendant is not precluded from appealing the order filed on December 2, 2005, denying that motion.

We turn to the merits of the appeal. We have thoroughly reviewed the record in light of the arguments advanced by defendant. We are satisfied that the judge did not abuse his discretion by denying defendant's motion for retroactive emancipation of B.C. and H.C. and the cancellation of his child support arrearages. We affirm substantially for the reasons stated by the trial judge in his written decision dated September 2, 2005. We add the following brief comments.

Parents are ordinarily not required to support children when they attain the age of 18 years. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). However, "in appropriate circumstances, the privilege of parenthood carries with it the duty to assure a necessary education for children." Ibid. As a general matter, "financially capable parents should contribute to the higher education of children who are qualified students." Id. at 544.

Here, the judge properly found that B.C. and H.C. should not be deemed emancipated prior to the date when defendant filed his motion for retroactive emancipation. Although B.C. and H.C. had attained the age of 18 years as of December 31, 1997, their emancipation as of that date was not warranted because both B.C. and H.C. were continuing their educations at that time. Moreover, while B.C. and H.C. completed their studies prior to the time when defendant filed his motion, emancipation of the children to an earlier date would have had the effect of relieving defendant of his obligation to contribute to the higher education of his children. We are convinced that in these circumstances, the judge did not abuse his discretion by denying defendant's motion for retroactive emancipation of the children.

We also are convinced that the judge properly invoked the "unclean hands" doctrine in denying the relief sought by defendant. The doctrine is founded upon the principle that "[a] suitor in equity must come into court with clean hands and he must keep them clean after his entry and throughout the proceedings." A. Hollander & Son, Inc. v. Imperial Fur Blending Corp., 2 N.J. 235, 246 (1949). The doctrine was appropriately invoked in this case because the record shows that defendant repeatedly failed to comply with his court-ordered obligation to provide support for the children and took no steps whatsoever to assist in paying the cost of the children's college education.

We have considered defendant's other contentions and find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

Plaintiff has not appealed from the denial of his application for a remedy respecting the actions of plaintiff and her attorney.

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A-2406-05T5

November 27, 2006