LORNA O'NEILL v. WILLIAM O'NEILL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3623-04T13623-04T1

LORNA O'NEILL,

Plaintiff-Respondent,

v.

WILLIAM O'NEILL,

Defendant-Appellant.

_______________________________________

 

Submitted December 21, 2005 - Decided January 13, 2006

Before Judges Stern and Kimmelman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FM-12-10125-88M.

Arthur E. Balsamo, attorney for appellant.

Lorna O'Neill, respondent pro se, did not file a brief.

PER CURIAM

In this post-judgment matrimonial proceeding the defendant, who is the ex-husband, appeals from an amended order entered without a formal hearing on February 14, 2005, which: (1) denied his application to emancipate his daughter, Shanon; (2) granted his request to emancipate son, Brian, effective November 29, 2004, the date of the application, but required the submission of a completed case information statement with respect to plaintiff's claim that Brian is "disabled" and "incapable of self-support," so that an order can be entered fixing defendant's new child support obligation; (3) required the filing of case information statements to consider defendant's contribution to Shanon's college expenses; and (4) required him to pay $1,391.44 in medical expenses for Shanon.

The parties were married on May 24, 1980, and were divorced on June 20, 1989. Their marriage produced three children, William, Jr., of full age who resides with defendant and whose status is not in dispute; Brian, age 23 who resides with plaintiff, and Shanon, a daughter age 21. Plaintiff, the ex-wife, appeared pro se during the motion proceeding and did file a certification. She has not appeared with respect to this appeal nor has she filed a brief.

Defendant commenced this proceeding by filing an application with the trial court to have his children Brian and Shanon declared emancipated. Plaintiff cross-moved for payment of arrearages in child support, an accounting of proceeds inherited or otherwise received by defendant from the sale of his mother's house upon her recent death, payment of past due medical expenses incurred for Brian and Shanon, and contribution toward Shanon's college tuition.

It appears that probably before she finished high school, Shanon gave birth to a child who has since been adopted by plaintiff, the child's grandmother. Shanon lived for a time with her boyfriend but now lives back at home with her mother. She has finished high school and appears to be presently enrolled at Middlesex County College. In the evening, Shanon works at a bowling alley claiming her income helps defray the costs of her college tuition. The trial court concluded that Shanon has not moved beyond the sphere of influence of her parents, see Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997), and ruled that she was not emancipated. It is not known how much Shanon works, how much she earns, whether her job provides health insurance, or the cost of her college tuition. The judge ordered case information statements to be submitted by the parties. R. 5:5-2(a).

Brian, who resides with his mother, the plaintiff, was ordered emancipated effective November 29, 2004, the date of defendant's motion. Unfortunately, Brian sustained head or brain injuries as a result of a car accident in 1988. Except for a permanent mental disability, Brian has finished high school and may be able to gain some employment at low level jobs. A certification was submitted to the trial judge by his brother William that Brian does not work and has difficulty obtaining a job. A formal hearing should be held to determine Brian's working ability, past and present medical expenses, and any other factors which may be pertinent including the funds received as a result of his accident.

Defendant is said to owe some $54,000 in child support arrears. The trial judge denied an obligation on the part of the defendant to use some of the fund derived from his late mother's estate to help defray the arrears. The defendant believes that such funds cannot be disturbed and should be treated in the same manner as if the funds were part of an equitable distribution following a divorce. The trial judge failed to state his reasons for denying the absence of any obligation on the part of the defendant to distribute all or part of such funds towards the arrears and support for which he is obligated. See R. 1:7-4. Furthermore, the amount of child support arrearages should be determined.

 
An emancipation dispute has been described by this court as a serious matter and should not be decided on the papers filed. Id. at. p. 307. In fairness to the parties and for the reasons stated, the order entered on February 14, 2005, is hereby reversed and the matter is remanded for a thorough hearing. We do not retain jurisdiction.

Reversed.

(continued)

(continued)

4

A-3623-04T1

 

January 13, 2006