TRACY J. FINNAN, n/k/a TRACY J. MOYNA v. JAMES FINNAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2389-06T12389-06T1

TRACY J. FINNAN,

n/k/a TRACY J. MOYNA,

Plaintiff-Appellant,

v.

JAMES FINNAN,

Defendant-Respondent.

___________________________

 

Submitted October 15, 2007 - Decided October 24, 2007

Before Judges Weissbard and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FM-02-641-95.

Arthur Del Colliano, attorney for appellant.

Amster & Rosensweig, attorneys for respondent (Ronald A. Rosensweig, on the brief).

PER CURIAM

Plaintiff Tracy J. Finnan appeals from a trial court order dated December 12, 2006, suspending the obligation of defendant James Finnan to pay child support for the parties' son. We remand for further proceedings.

I

The parties, who were divorced in 1994, have three children. This case concerns their seventeen-year-old son. The divorce judgment gave the parties joint legal custody of the son and gave plaintiff residential custody. The judgment further provided that the children would be deemed emancipated when they reached eighteen if they were not attending college or other continued education, or upon "[p]ermanent residence away from the residence of the Wife. A residence at boarding school . . . is not to be deemed a residence away from the residence from the wife sufficient to constitute emancipation."

In August 2006, defendant moved to have sole custody of the son transferred to plaintiff, and to terminate defendant's obligation to pay child support. Defendant filed a certification contending that plaintiff had advised him that she was moving to Vermont, but that their minor son, who was about to be a senior at Waldwick High School, wanted to remain in New Jersey to finish his senior year. Defendant offered to have the son live with him, but plaintiff told him the son did not want to live with defendant and that she had arranged for him to live with her relatives or another family in Waldwick. Defendant contended that if the son was not living with plaintiff, he should not have to pay plaintiff child support.

Plaintiff filed an opposing certification, in which she admitted that she had moved to Vermont, and that the son was not living with her or with defendant. She did not disclose where the son was living. She contended that he was attending high school, would later be attending college, and should not be deemed emancipated. She contended that if defendant made payments to her, she would use them to support the son. However, she provided no legally competent evidence that she was in fact providing any financial support to the son. Alternately, she suggested that defendant "can also make the payments directly to [the son], who will be residing in Waldwick." But, she provided no evidence as to the son's financial needs in that residential arrangement. Plaintiff contended that she had discussed the son's living arrangements with defendant and that the options were for the son to live with one of two families, both of whom were "long, and dear friends of our[s] for years." She also contended that she and defendant, and the son, had also met together to discuss possible living arrangements.

According to defendant's reply certification, the parties had discussed the son's living arrangements, but defendant was firmly of the view that the son should live with one of his parents rather than with a third party. He also objected to paying child support for the son's room and board when he was willing to let the son live with him and could arrange for the son to attend high school in Waldwick. Defendant claimed not to know where the son was living and claimed the son was not communicating with him.

It was also clear from the parties' certifications that they both viewed this application as the opening skirmish in a future battle over payment of the son's college expenses.

Although defendant had requested oral argument, the trial judge decided the motion without hearing oral argument. Noting that neither party had provided sufficient information as to where the son was living, and that the parties had provided the court with "absolutely zero financial information," the judge indicated that he would suspend the father's obligation to pay child support, because both parties agreed that the son was not living with the father. The judge also indicated that he "will be . . . closing this matter until somebody tells the Court what in fact are [the son's] living arrangements."

II

We sympathize with the trial judge's justifiable frustration with the dismal quality of the parties' submissions. However, we also bear in mind that the child was essentially unrepresented in this battle between the parents.

The purpose of child support is to benefit children, not to protect or support either parent. Our courts have repeatedly recognized that the right to child support belongs to the child, not the custodial parent. See, e.g., Pascale v. Pascale, 140 N.J. 583, 591 (1995); Patetta v. Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003); Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993). "The custodial parent brings the action on behalf of the child and not his or her own right." Martinetti, supra, 216 N.J. Super. at 512. Thus, the right to child support cannot be waived by the custodial parent.

[J.S. v. L.S., 389 N.J. Super. 200, 205 (App. Div. 2006), certif. denied, 192 N.J. 295 (2007).]

Just as a parent cannot waive child support, so a parent should not forfeit the child's right to support by, in this case, filing regrettably uninformative motion papers. We are, therefore, convinced that it was not appropriate to suspend child support and "close" the case, without hearing oral argument. Although the judge assumed that the son was simply being recalcitrant in refusing to live with his father, the record does not indicate the reasons for his refusal, which may be entirely legitimate. Rather than leaving the child's support in limbo, the better approach would have been to hear oral argument, and direct the attorneys to file supplemental papers so that the matter could be finally resolved in the child's interest.

To that end, we remand this matter to the trial court for further proceedings consistent with this opinion, including oral argument, which may be preceded by the filing of such additional papers as the trial court may direct. We do not retain jurisdiction.

Remanded.

 

(continued)

(continued)

6

A-2389-06T1

October 24, 2007