NANETTE BERARD, n/k/a NANETTE GANGUZZA v. LARRY PFEIL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4150-06T14150-06T1

NANETTE BERARD, n/k/a NANETTE GANGUZZA

Plaintiff-Respondent,

v.

LARRY PFEIL,

Defendant-Appellant.

_______________________________________________________________

 

Submitted January 30, 2008 - Decided

Before Judges Lihotz and Simonelli.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FD-14-210-93.

Larry Pfeil, appellant pro se.

Michael N. Pedicini, attorney for respondent.

PER CURIAM

Defendant appeals from a February 26, 2007 Family Division order. Following a plenary hearing as directed by our remand, Berard v. Pfeil, No. A-0886-05 (App. Div. July 17, 2006), the Family Part judge rejected defendant's argument that laches barred payment of child support arrearages. The arrears accrued pursuant to a New Jersey child support order when defendant ceased payments, as directed by Texas officials, when his child reached age eighteen. The February 26, 2007 order required defendant to continue paying $150 per week toward the outstanding child support arrearages. We affirm.

On April 25, 1992, plaintiff on behalf of the child, who both reside in New Jersey, sought enforcement of the March 19, 1990 New Jersey order requiring defendant, a Texas resident, to pay child support. Plaintiff filed an enforcement petition pursuant to the law then in effect, the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), N.J.S.A. 2A:4-30.24 to -.64, and a hearing was scheduled with the District Court of Harris County Texas. On July 12, 1993, the Texas court entered an order enforcing the New Jersey order. Thereafter, when the parties' daughter reached age eighteen, the Office of the Texas Attorney General notified defendant his support obligation ended. An order closing the Texas case was entered on March 29, 2004. Because the child had not completed high school, plaintiff commenced efforts through the Morris County Probation Department to reinstitute defendant's child support obligation. Plaintiff hired a locator service to obtain defendant's address, telephone number, and place of employment.

In May 2005, defendant filed a motion in Morris County requesting the child's emancipation. That motion was denied. Defendant appealed, arguing among other things that he relied on the closing of the Texas file and the fact that no subsequent actions by plaintiff were presented for reinstatement. He maintained that he committed his financial resources to the dental needs of his younger children. The failure to address the laches defense in the prior proceeding resulted in our remand.

Judge Weisenbeck held a plenary hearing on January 5, 2007. In addition to receiving the testimony provided on that date, he requested each party submit additional pertinent documentation.

In a written opinion dated February 26, 2007, the judge determined plaintiff's delay in seeking reinstatement of child support was not "inexcusable or unexplained." Although plaintiff had not filed a motion to reinstate support, she engaged in efforts throughout 2004 until early 2005 to continue the obligation on behalf of the child through the county probation department. Further, the documentation submitted by defendant did not support his claim that he recommitted his resources relying on the fact that his support obligation had come to an end. Judge Weisenbeck concluded the facts, as presented, obviated the application of laches.

Defendant's appeal challenges the trial court's factual findings and the resultant legal consequences. Specifically, he cites as error the determination that plaintiff did not "sit on her rights." Defendant maintains plaintiff was required to file a motion to reinstate support. Defendant also claims error in the finding that he had not changed his financial position. Finally, defendant contends that Texas entered the controlling order, which defines the emancipation event.

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact- finding." Id. at 413. If evidence is lacking to sustain the court's finding, it is only then that the findings must be set aside. Where our review addresses questions of law, however, we are not bound to defer to the legal conclusions of the lower court. See Balsamides v. Protameen Chems., Inc., 160 N.J. 352, 372 (1999) (stating "matters of law are subject to de novo review").

We conclude defendant's challenges to the court's factual findings are unavailing as we discern "adequate, substantial and credible evidence" supports Judge Weisenbeck's determinations. Cesare, supra, 154 N.J. at 412. The judge's opinion details (1) plaintiff's actions to reinstate the child support order; (2) plaintiff's actions to locate defendant; (3) the commencement and nature of defendant's commitment for his children's orthodontic care, and the amount of the obligation; and (4) defendant's progressively increasing income from 2002 to 2005 showing his ability to pay support. Additionally, the judge expressly articulated credibility findings supporting the determinations made. Overall, these findings are well supported by the record, and we have no occasion to disturb them. Further, Judge Weisenbeck correctly applied the law, concluding defendant failed to prove laches.

Defendant's argument that Texas has issued the controlling order in this matter is incorrect. Under RURESA, inter-jurisdiction support disputes were not uniformly handled and it was possible that two different orders simultaneously were active in two different states governing the same obligor and the same child. See e.g., Banks v. Banks, 221 N.J. Super. 282, 285 (App. Div. 1987). However, enforcement actions never eliminated the original state's jurisdiction to enforce or modify its prior orders, Youssefi v. Youssefi, 328 N.J. Super. 12, 20 (App. Div. 2000), and the continuing, exclusive jurisdiction to modify an order was lost only if another state modified the order pursuant to RURESA's provisions or a law "substantially similar to this act."

Congress developed the Uniform Interstate Family Support Act (UIFSA), which is a more effective and efficient interstate support collection law designed to curtail confusion in the interstate support process. New Jersey adopted UIFSA on March 5, 1998, N.J.S.A. 2A:4-30.65 to -30.123 and repealed RURSEA. "Under UIFSA, jurisdictional disputes are resolved by reference to the concept of 'continuing, exclusive jurisdiction'" defined by N.J.S.A. 2A:4-30.72. Peace v. Peace, 325 N.J. Super. 122, 128 (Ch. Div. 1999). Thus, a state that issues an order retains continuing, exclusive jurisdiction if it remains the residence of the obligor, the obligee or the child." N.J.S.A. 2A:4-30.72(a)(2).

Contrary to defendant's suggestion, Texas never modified the New Jersey order. The 1993 Texas proceeding was held solely to present and enforce the previously issued New Jersey order. New Jersey's initial order remains the controlling order, N.J.S.A. 2A:4-30.74(d), and because the child remains a resident, New Jersey retains continuing, exclusive jurisdiction.

New Jersey law provides that an unemancipated child who remains a full-time student is not emancipated, despite reaching the age of majority. Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997); Weitzman v. Weitzman, 228 N.J. Super. 346, 356-57 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989). Here, the parties' child was a high school student for seven months after her eighteenth birthday. Thus, she was unemancipated and in need of support. Additionally, defendant was directed to continue support so long as the child remained a full-time college student, as required under the Court's determination of emancipation. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982).

Any remaining arguments advanced by defendant not specifically addressed in our opinion lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

(continued)

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A-4150-06T1

March 7, 2008