DARLENE C. BORAI, f/k/a DARLENE CROSBY v. VERNON H. CROSBY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3717-04T33717-04T3

DARLENE C. BORAI, f/k/a DARLENE

CROSBY,

Plaintiff-Respondent,

v.

VERNON H. CROSBY,

Defendant-Appellant.

__________________________________

 

Submitted February 16, 2006 - Decided May 9, 2006

Before Judges Wefing, Wecker and Fuentes.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Ocean County, FM-15-1510-91.

Vernon H. Crosby, appellant pro se.

Darlene C. Borai, respondent pro se.

PER CURIAM

Defendant, Vernon H. Crosby, appeals from a post-judgment order reducing his child support obligation to $5.00 per child for each of the parties' two children, denying his motion to declare each of the children emancipated, and denying his motion to eliminate or modify child support arrearages that had accrued prior to his motion. Defendant's motion for reconsideration also was denied.

We have carefully considered the record in light of defendant's contentions on appeal, and we are satisfied that they are entirely without merit. See R. 2:11-3(e)(1)(E). We add only these brief comments.

Two children were born to the parties during their marriage. Karyn Melissa, born June 18, 1983, was a college student when defendant filed this motion on June 18, 2004. David Prescott, born August 21, 1988, was in high school at the time. Defendant's sole income came from social security disability benefits. Defendant's disability determination also provided some monthly benefits to the younger child.

Defendant's original child support obligation of $150 per week, set in the Final Judgment of Divorce, was reduced to $60 per week in 1998. In the interim, defendant qualified for disability benefits; filed for personal bankruptcy, which did not discharge any obligation here in issue; and filed several successive motions seeking to reduce child support and other financial obligations. After the divorce, each party remarried and each had additional children with the new spouse.

Judge Ronald E. Hoffman gave detailed and thoughtful consideration to the appropriate factors in light of both parties' limited resources. Because plaintiff did not submit an up-to-date case information statement as ordered, the judge referred to her 1996 case information statement (filed in response to one of defendant's earlier motions) and imputed income to her.

Judge Hoffman then determined child support based on a number of factors before him, including imputed income to Borai, credit to Crosby for the disability payment Borai receives for one child, consideration of Crosby's income, and the fact that Crosby has two children from his subsequent marriage:

I'm going to impute, for the purposes of this, $600.00 per week - $15.00 an hour times a 40-hour week - for the former Mrs. Crosby which amounts to $31,200 per year. I'm going to utilize the $1,301 per month received by Mr. Crosby through his Social Security Disability. I am going to give Mr. Crosby the other dependent deduction based upon his two children from his subsequent marriage. I am going to give credit for the $119 per month received by Ms. Borai as a result of Mr. Crosby's disability.

Following the child support guidelines, Judge Hoffman noted that Crosby owed $5.00 per week for the younger child. Finding Crosby "below the poverty line," Judge Hoffman noted that he need not provide an "exhaustive analysis of [statutory] criteria" and imposed the same $5.00 per week for the older child.

"Every parent has a fundamental duty to support his or her children to the greatest extent that they can." Monmouth County Div. of Soc. Servs. for D.M. v. G.D.M., 308 N.J. Super. 83, 89 (Ch. Div. 1997). According to the Child Support Guidelines, the lowest amount of child support a judge can order is $5.00 per child:

For combined net incomes that are less than $170 per week, the court shall establish a child support award based on the obligor's net income and living expenses and the needs of the child. In these circumstances, the support award should be between $5.00 per week and the support amount at $170 combined net weekly income as shown on this schedule.

[R. 5:6A; Appendix IX-F, Rules Governing the Courts of the State of New Jersey (2006)].

In addition to the order to pay $10.00 per week of child support (for David and Karyn), Crosby was ordered to pay $5.00 a week toward arrearages. Crosby contends that his arrearages should be extinguished because he was on welfare in 1995 and 1996 in the State of Pennsylvania, and his requests then for modification of child support were denied. In the alternative, he contends that his arrearages should be recalculated at his current child support requirement.

Retroactive modification of child support to reduce arrearages is prohibited by statute. N.J.S.A. 2A:17-56.23a; see also Mahoney v. Pennell, 285 N.J. Super. 638, 642-43 (App. Div. 1995); Mallamo v. Mallamo, 280 N.J. Super. 8, 13-14 (App. Div. 1995). Defendant's weekly obligation to reduce arrearages is minimal and reflects his limited means. No further relief is appropriate.

Finally, the judge denied a declaration of emancipation for Karyn, but held that upon graduating from college, she would be emancipated.

The presumption of emancipation at age 18 is a rebuttable one. A critical review of the facts and circumstances of the child must be made. To determine emancipation the court must analyze all facts to determine whether the child has moved beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own.

[L.D. v. K.D., 315 N.J. Super. 71, 75 (Ch. 1998) (citations omitted)].

The issue of a child's emancipation is fact-sensitive. The "essential inquiry is whether the child has moved beyond the sphere of influence" of a parent and obtained "an independent status" of her own. Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (internal citation omitted). At the time of the hearing on this matter, Judge Hoffman determined that Karyn was not emancipated because she was attending college full-time. That decision is unassailable.

Affirmed.

 

The record demonstrates that Karyn graduated from college in June of 2005. In fact, Borai acknowledges that Karyn is now emancipated, noting that Crosby's "support obligation for Karyn should be terminated as of June 2005 . . ."

(continued)

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A-3717-04T3

May 9, 2006