MARY CIANCIO v. ANGELO CIANCIO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A- 4121-04T14121-04T1

MARY CIANCIO,

Plaintiff-Respondent,

v.

ANGELO CIANCIO,

Defendant-Respondent.

______________________________

JOSEPH AND MARGARET CIANCIO,

Interveners-Appellants.

 
_______________________________________________________________

Submitted August 22, 2006 - Decided August 31, 2006

Before Judges R. B. Coleman and Holston, Jr.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-19895-90.

Joseph and Margaret Ciancio, appellants pro se.

A. Harold Kokes, attorney for respondent, Mary Ciancio.

Angelo Ciancio, respondent pro se.

PER CURIAM

Joseph Ciancio (Joseph) and Margaret Ciancio (Margaret), the unemancipated children of plaintiff, Mary Ciancio (Mary), and defendant, Angelo Ciancio (Angelo), seek to appeal as intervenors the Family Part's Order filed March 7, 2005, denying Angelo's motion for change of venue. The trial court denied the motion because there were no substantive motions pending between the parties at the time the motion was made. Angelo appealed the March 7, 2005 order to this court under Docket No. A-4118-04T1. Angelo's appeal was dismissed by the clerk of this court on June 28, 2005. The dismissal order honored the July 24, 2005 written request of Angelo in which Angelo stated he was "withdrawing his appeal effective immediately."

Joseph and Margaret also seek to appeal issues addressed in the Family Part's orders of October 17, 2003 and November 21, 2003, which were appealed to this court under Docket No. A-2264-03T1. This court's per curiam opinion filed June 21, 2005 decided the issues raised by Joseph and Margaret in this appeal. Our opinion affirmed the trial court's orders in part and reversed and remanded them in part. Thereafter, the Supreme Court denied Angelo's petition for certification. Ciancio v. Ciancio, 185 N.J. 298 (2005). For the reasons that follow, we dismiss this appeal. R. 2:8-2.

In this court's June 21, 2005 opinion, based on the stipulation of Mary that Joseph had, by agreement of the parties, lived continually with Angelo since September 2001, we determined that the trial court erred in failing to terminate Angelo's child support obligation to Joseph retroactive to September 2001 and that the court erred in reducing to judgment the arrears owed by Angelo for Joseph's support. Accordingly, we remanded the matter to the trial court with directions to enter an order within sixty days vacating the child support obligation of Angelo to Joseph retroactive to September 2001 and to vacate the trial court's order reducing Angelo's arrearage as to Joseph to judgment. We further instructed the trial court to credit Angelo for support he paid for Joseph while Joseph was living with Angelo.

Because Mary and Angelo disputed where Margaret resided from September 2001 to October 2003, and presently, we remanded to the trial court to determine, after a plenary hearing: (1) which parent was the parent of primary residence formerly and presently as to Margaret; (2) whether an express or implied agreement to modify child support was entered into between Mary and Angelo as to Margaret; and (3) whether Angelo was entitled, therefore, to a credit for child support based on Margaret's residence for support paid by him for Margaret, after the effective date of any agreement to modify child support found by the court after a plenary hearing.

We also remanded with instructions for the trial court to set a prospective order for child support as to both Joseph and Margaret, based on equitable principles, from the parent of alternate residence to the parent of primary residence, so long as Joseph and Margaret remain unemancipated. We further instructed the trial court to enter a prospective medical reimbursement order, in accordance with the percentages provided in the final judgment of divorce for the payment by each parent of medical expenses incurred for Joseph and Margaret.

We affirmed the trial court's decision denying Angelo retroactive support for either child from Mary. We denied each parent's application for reimbursement from the other parent for past medical and clothing expenses of Joseph and Margaret.

Joseph and Margaret are not now and have never been parties to this action. With the exception of our May 20, 2005 order, denying the application of Joseph and Margaret to intervene in Angelo's appeal of the trial court's October 17, 2003 and November 21, 2003 orders under A-2264-03T1, neither Joseph nor Margaret have ever made an application to intervene before the trial court pursuant to either Rule 4:33-1, Intervention as of Right, or Rule 4:33-2, Permissive Intervention.

In White v. White, 313 N.J. Super. 637 (Ch. Div. 1998), a factually similar case, the nineteen-year-old unemancipated daughter of divorced parents, who was a full-time student at Cedar Crest College in Allentown, Pennsylvania, filed a motion to intervene in her parents' divorce action seeking a court order requiring her mother "to pay me child support or some other alternative pay schedule . . . throughout my college years so that I may obtain my education at Cedar Crest College." Id. at 640. In Judge Graves' opinion denying the daughter the right to intervene, the judge, while recognizing that permission to intervene should be liberally construed in appropriate cases, denied intervention on the basis that when an applicant's interests are adequately represented by existing parties, intervention should be denied. Id. at 640-41. The judge noted that the "judgment of divorce resolved the very issues that [the daughter sought] to revisit." Id. at 641. Judge Graves stated that, "Mr. White is able to seek a court review of Mrs. White's parental obligations if changed circumstances warrant such a review. The court concludes there is no present need or purpose for [the daughter] to intervene and `so unseemly a course should be avoided whenever possible.'" Id. AT 641 (quoting Martinetti v. Hickman, 261 N.J. Super. 508, 513 (App. Div. 1993)).

We are convinced that the issues Joseph and Margaret seek to revisit here were the very issues which were briefed and orally argued by Angelo and decided by this court in our June 21, 2005 opinion. Joseph's and Margaret's interests in adequate financial support to enable them to pursue their education goals and to provide for their medical conditions are well able to be addressed by Angelo and Mary under their existing divorce docket.

The only issue presented here, which was not addressed in our opinion of June 21, 2005, is the issue of change of venue. Angelo voluntarily withdrew his appeal of the trial court's denial of his motion for change of venue. Angelo is free to renew such a motion, if and when there is a substantive issue between Mary and Angelo.

We are satisfied that the issues presented by Joseph and Margaret have been subject to full review by this court and certification has been denied by the Supreme Court. We are equally convinced that Joseph and Margaret have no standing to present these issues and accordingly dismiss this appeal. See R. 2:8-2; see also R. 4:26-1; Pressler, Current N.J. Court Rules, comment 2 on R. 4:26-1 (2006).

 
Appeal dismissed.

As of June 21, 2005, Joseph was age twenty and a full-time student at Atlantic-Cape Community College. Margaret was age nineteen and a full-time student at Stockton State College. Joseph is legally blind; Margaret suffers from irritable bowel syndrome. Angelo has filed a letter brief dated October 25, 2005, in support of Joseph's and Margaret's appeal.

A vacation of the October 23, 2003 judgment for child support arrearage would also compel the vacation of a wage execution against Angelo's wages, since the wage execution was granted as the method to enforce the judgment.

We are mindful of the allegation that the remand we ordered has not been fully complied with. However, we decline to address that contention unless it is properly presented by either Angelo or Mary in a properly perfected appeal.

(continued)

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A-4121-04T1

August 31, 2006