STACEY McARTHUR v. GLENN McARTHUR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4245-05T34245-05T3

STACEY McARTHUR,

Plaintiff-Respondent,

v.

GLENN McARTHUR,

Defendant-Appellant.

_____________________________

 

Submitted November 27, 2006 - Decided December 12, 2006

Before Judges S.L. Reisner and Seltzer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, FD-11-1468-01.

Community Health Law Project, attorney for appellant (Robert Fraser Miller, of counsel and on the brief).

Respondent did not file a brief.

PER CURIAM

Defendant, Glenn McArthur, appeals from a portion of a March 10, 2006, trial court order declaring his twenty-year old daughter emancipated as of the date he filed his motion for relief rather than as of the date she stopped attending college. He also appeals from the trial court's failure to order credit against child support arrears for a $4,300 lump sum social security disability payment due to his minor son as well as credit against arrears for the $4,793 in social security benefits the son actually received. We reverse and remand for further proceedings.

Defendant filed a motion on December 22, 2005, seeking various forms of relief including a reduction in his child support obligation and emancipation of the parties' adult daughter. The motion was unopposed. Defendant submitted proof, which the trial court accepted as true, that he was disabled and qualified for social security disability benefits, effective January 1, 2004. He submitted proof that his wife (to whom he is still married although they are separated) had been receiving social security disability benefits for their minor son and that she was also entitled to a lump sum of $4,300 in retroactive benefits for the son. Defendant asked the court to credit those amounts against any child support arrears that he owed for the son's support since February 1, 2004.

Defendant also submitted proof that the parties' daughter had turned eighteen on January 31, 2003, and he sought a declaration of her emancipation as of that date as well as credit against child support arrears accruing for her benefit since that date. Defendant later amended his request for relief based on his wife's having informed him that the daughter had been attending college through March 2004. Accordingly he only sought relief as of April 1, 2004. His amended application was unopposed.

In an oral opinion placed on the record on March 10, 2006, the trial judge indicated that she would emancipate the daughter effective the date the motion was filed, with corresponding adjustments in child support arrears. She also indicated that she would grant credit against child support arrears for the son to reflect the $4,300 in lump sum retroactive benefits he was to receive. Her decision was not clear as to whether defendant was entitled to additional credits for benefits the son had actually received. In any event, the court's order, signed on March 10, 2006, did not reflect any credits against the arrears for the son's social security benefits.

Having reviewed the record, we conclude that the trial court erred in declaring the daughter emancipated, and in ordering credits against arrears for her, only as of the date the motion was filed in December 2005. The undisputed record establishes that the daughter ceased attending college as of the end of March 2004, and thereafter was working at a CVS store. Defendant was entitled to credit against arrears as of the date the daughter no longer required defendant's support, as opposed to the date he filed his motion. See Mahoney v. Pennell, 285 N.J. Super. 638 (App. Div. 1995). We find further support for this conclusion in the lack of opposition to the motion and in the fact that defendant was suffering from a mental disability as of January 1, 2004. As of the time he filed his motion, he was homeless and surviving on $1,200 per month in social security benefits. No equitable considerations in this record militate against our conclusion.

We also conclude that the court's order should have included credits against child support arrears for all of the social security benefits already received on behalf of the son, plus the lump sum due to be paid. See Sheren v. Moseley, 322 N.J. Super. 338 (App. Div. 1999); Potter v. Potter, 169 N.J. Super. 140 (App. Div. 1979).

Accordingly, we reverse the trial court's order insofar as it sets an incorrect emancipation date and does not credit child support arrears to reflect the son's social security benefits. We remand this matter for further proceedings consistent with this opinion, which shall be concluded within thirty days of the date of this opinion.

 
Reversed and remanded.

(continued)

(continued)

4

A-4245-05T3

December 12, 2006