SALVATORE PETRUZZI v. KATHLEEN PETRUZZI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6504-06T36504-06T3

SALVATORE PETRUZZI,

Plaintiff-Appellant,

v.

KATHLEEN PETRUZZI,

Defendant-Respondent.

____________________

 

Submitted March 11, 2008 - Decided

Before Judges Skillman and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FM-12-1136-98M.

Toni Ann R. Marcolini, attorney for appellant.

Ramp, Renaud & Hlavenka, attorneys for respondent (Edward J. Ramp, on the brief).

PER CURIAM

Plaintiff Salvatore Petruzzi appeals from the July 6, 2007 order of the Family Part granting his motion to declare the parties' two sons emancipated but denying him a retroactive modification of his child support obligation.

Having reviewed the record, we conclude the trial judge misapplied the retroactivity bar in N.J.S.A. 2A:17-56.23(a). Therefore, we reverse and remand this matter for further proceedings.

The parties were married on October 12, 1980. Two sons were born of the marriage: Salvatore, born December 18, 1981; and Daniel, born December 9, 1983. The parties were divorced on August 3, 1999. Pursuant to their divorce judgment, defendant Kathleen Petruzzi was designated the children's parent of primary residence. Plaintiff's child support obligation was set at $210 per week, "said support to continue until the children reach the age of 18 years or finish High School or complete four years [post-]secondary education at a college or other secondary school, whichever comes last[.]"

Salvatore graduated from high school on June 19, 2001, and did not thereafter pursue any post-secondary education on a full-time basis. He continued to reside with defendant until May 2005, when he moved out to live with his girlfriend. Salvatore died on September 17, 2005, as a result of a fatal automobile accident.

Daniel graduated from high school on June 19, 2002. He pursued some post-secondary education for a brief period of time. Daniel continued to reside with defendant after his graduation from high school.

On April 26, 2007, plaintiff filed a motion seeking to declare the children emancipated as of the dates of their respective high school graduations. Plaintiff also sought termination of his child support obligation and reimbursement of his child support payments retroactive to those emancipation dates. He calculated the amount of the reimbursement to be $95,508. Plaintiff explained his delay in filing this motion as follows:

I did not sleep on my right as alleged by Defendant. I was unaware of my rights and how to exercise same. Over the years, I called probation several times and was misadvised by the caseworkers as to the emancipation process. The caseworkers repeatedly told me that the custodial parent had to initiate the process. I asked Defendant to emancipate the children and she refused to do so. I thought that my hands were tied regarding the emancipation of the children. My naivety regarding the process coupled with my reliance upon the "knowledge" of the caseworkers left me at a severe disadvantage. Had I known that I had to file the motion presently before the Court, I would have done so years ago.

In her opposition to the motion, defendant stated:

I do not know why the plaintiff waited so long to emancipate the children. We had several conversations concerning the emancipation of the children. The first one I can recall was shortly after Sal's death. I told him to do what he had to do to emancipate the children. He did nothing. Since that time we had three or four conversations concerning this issue, some commenced by him and some by me. My position was consistently that he had to do whatever had to be done to have the children emancipated. Several months ago I called the Family Court to find out how we emancipate the children. The Court sent me papers to complete. I called the plaintiff and told him I had the papers for him to complete to emancipate the children. He did not ask me to forward them to him or come to pick them up. Subsequently, I received this motion.

At the conclusion of oral argument on July 6, 2007, the judge ruled that Salvatore would be emancipated as of the date of his death, September 17, 2005; Daniel was declared emancipated as of April 26, 2007, the filing date of plaintiff's motion. The judge terminated plaintiff's child support obligation for both children as of April 26, 2007.

Regarding Daniel's emancipation, the judge ruled:

Daniel is emancipated effective April 26th, 2007, the date of the filing of plaintiff's motion. Plaintiff certifies that defendant in effect stole money from him by failing to notify the Court of Daniel's emancipation, however plaintiff's confusion regarding the date of the children's high school graduation dates aside, there is no indication in plaintiff's certification that he was not fully aware that Daniel had graduated from high school. He failed to take steps to have Daniel emancipated. His sole explanation for the delay and his bringing the motion for emancipation is that he was misadvised by caseworkers with the probation department. If this was the case, it's very unfortunate. However, the fact is that plaintiff took no steps until this time.

Regarding Salvatore's emancipation date, the judge stated:

Salvatore is emancipated effective September 17th, 2005. Again the plaintiff was surely aware of Salvatore's emancipation status. He took no steps to emancipate Salvatore for over a year and half after his untimely death. . . . [H]is explanation was the information he got from probation.

With regard to Salvatore, I'm sensitive to plaintiff's position, because of course this child could get no benefit from the child support since he had died. And again, I accept that he received this misinformation regarding the emancipation process. However, this court cannot retroactively modify child support. In the current situation plaintiff's child support obligation was unallocated between the two children. Consequently, even though plaintiff's child support obligation for Salvatore ended upon Salvatore's untimely death, he failed to request a recalculation, and I cannot now recalculate the obligation as of September 17th, 2005, as this would constitute a retroactive modification, which is prohibited under N.J.S.A.2[A]:17-56.23a.

[Emphasis added.]

We conclude that the trial judge improperly invoked the statutory bar to retroactive modification of child support in N.J.S.A. 2A:17-56.23(a). Plaintiff's motion was premised upon the children's emancipation. In Mahoney v. Pennell, 285 N.J. Super. 638 (App. Div. 1995), we addressed this issue:

N.J.S.A. 2A:17-56.23a was enacted to insure that ongoing support obligations that became due were paid. . . . Implicit, however, in the judicial obligation to enforce the terms of a child support order is the underlying premise that a duty to support exists. Where there is no longer a duty of support by virtue of a judicial declaration of emancipation, no child support can become due. Thus, we cannot ascribe to this legislation, nor do we find any indication that the legislature so intended, to bar termination of child support retroactively to the time a child became emancipated.

[Id. at 643 (citations omitted).]

We recognize that emancipation is a "fact sensitive issue" to be addressed by the court. Ibid. However, once that issue is resolved, the statute imposes no bar to the termination of a child support obligation retroactive to the emancipation date.

The trial judge determined Salvatore's emancipation date to be the date of his death. The court did not address Daniel's emancipation date in her decision.

Regarding Salvatore, the trial judge found that plaintiff's child support obligation "ended upon Salvatore's untimely death[.]" Nonetheless, the judge concluded that to "recalculate the obligation as of September 17th, 2005 . . . would constitute a [prohibited] retroactive modification[.]" The fact that an emancipation date precedes the date on which a motion seeking such relief was filed does not bar the elimination of any child support obligation that accrued subsequent to the emancipation date. "Although the judicial declaration of emancipation was not announced on or near the date of occurrence, that should not detract from when emancipation occurred." Bowens v. Bowens, 286 N.J. Super. 70, 73 (App. Div. 1995); see J.S. v. L.S., 389 N.J. Super. 200, 207 (App. Div. 2006) ("[R]etroactive modification of child support is permitted based upon a court's declaration that a child had been emancipated on a date certain."), certif. denied, 192 N.J. 295 (2007).

The trial judge declared Salvatore emancipated as of the date of his death. By virtue of that declaration, "there [was] no longer a duty of support" imposed upon plaintiff. Mahoney, supra, 285 N.J. Super. at 643. The fact that child support was "unallocated" between the two children does not, in and of itself, preclude a retroactive recalculation of plaintiff's obligation.

As noted, plaintiff sought termination of his child support obligation as of the date of each child's high school graduation. Under the circumstances, plaintiff is entitled to have his child support obligation for Salvatore terminated at the latest as of September 17, 2005; he is also entitled to have the court determine whether Salvatore's emancipation occurred at an even earlier date. Regarding Daniel, plaintiff is entitled to have the court declare a date of emancipation that comports with the evidence of record.

Finally, we note that even though N.J.S.A. 2A:17-56.23(a) does not foreclose retroactive modification of child support as of the date of emancipation, this does not mean that plaintiff is automatically entitled to such relief. Defendant may have equitable defenses to any requirement of reimbursement of some or all of the child support plaintiff paid to her after the date of emancipation of his sons.

Reversed and remanded for proceedings consistent with this opinion.

 

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A-6504-06T3

August 27, 2008