CHARLES CANNIZZARO v. BARBARA CANNIZZARO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1595-09T1

CHARLES CANNIZZARO,

Plaintiff-Appellant,

v.

BARBARA CANNIZZARO,

Defendant-Respondent.

________________________________

March 3, 2011

Submitted February 14, 2011 - Decided

Before Judges Lisa and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-235-01.

Law Offices of Ada H. Carro, attorneys for appellant (Charles E. Carro, of counsel and on the brief).

Respondent has not filed a brief.

PER CURIAM

Plaintiff Charles Cannizzaro appeals the Family Part's order of October 19, 2009 with respect to issues of (1) the emancipation of his oldest child, and (2) the reallocation of an income tax deduction for the parties' son to his ex-wife, defendant Barbara Cannizzaro.

The parties are the parents of three children: an older daughter born in 1985, a son born in 1990, and a younger daughter born in 1993. The parties divorced in July 2001. The Property Settlement Agreement ("PSA") incorporated into the divorce judgment specified, among other things, that defendant would have primary residential custody of the three children, with plaintiff having regular parenting time. Plaintiff agreed to pay a weekly amount in child support, pursuant to calculations under the published Guidelines.

The record indicates that the older daughter withdrew from school in or about 2000 and that she has had numerous personal problems, including substance abuse. According to a notarized statement that defendant provided to the Probation Department in November 2008, the older daughter's whereabouts were unknown to her at that time. Plaintiff likewise was out of contact with the older daughter, and he had not communicated with her for several years.

Given the fact that the older daughter was well over the age of majority and was not residing in either parent's household, plaintiff attempted to have her declared emancipated. Apparently at plaintiff's request, on November 22, 2008, defendant sent a notarized letter consenting to emancipation to the Probation office in Warren County, the county of enforcement for this child support account. According to defendant's subsequent certification filed in the Family Part, the parties were told that an application to emancipate needed to be made instead in Hunterdon County, the county where the divorce judgment had been entered.

On August 14, 2009, plaintiff filed a motion with the Family Part in Hunterdon County, seeking the older daughter's emancipation. Plaintiff requested that her emancipation be made retroactively effective as of November 22, 2008, the date of defendant's certified letter giving her consent to the emancipation. In her opposition to the motion, defendant did not contest the emancipation itself, but she objected to the proposed effective date, contending that plaintiff had unduly delayed in filing his motion. She also alleged that a retroactive reduction of the child support, which she was receiving for all three children, would cause her financial hardship.

After considering the parties' contentions, the motion judge granted the older daughter's emancipation, but decided to make it effective September 10, 2009, a date erroneously identified by the judge as the date that plaintiff had filed his motion. The judge declined to use the November 22, 2008 effective date proposed by plaintiff.

In her ruling on this issue, the judge recognized that defendant's claim that the older daughter had returned to her home "sporadically since November 2008" was "not dispositive of the retroactive date of her emancipation." The judge further noted that "[n]either party has had a clear obligation to support [the older daughter], as she has been out on her own, and then back home, on and off, for several years." Nevertheless, the court found that "the balance of equities" justified limiting retroactive relief to the date of plaintiff's motion, given plaintiff's delay in filing his application after he had been unsuccessful in obtaining relief from the Probation Office in Warren County.

Plaintiff first argues in his appeal, which has not been opposed by defendant, that the motion judge erred in not making the emancipation effective as of the date of defendant's letter of consent to the Warren County Probation Department. We agree.

As a general matter, N.J.S.A. 2A:17-56.23a prohibits the retroactive reduction of court-ordered child support. The statute's anti-retroactivity requirement has been construed, however, to be inapplicable to a reduction of child support based upon a child's emancipation. As we noted in Bowens v. Bowens, the statute "does not bar the cancellation of child support arrearages which accrued subsequent to the date of the emancipation of the minor." 286 N.J. Super. 70, 73 (App. Div. 1995); see also Mahoney v. Pennell, 285 N.J. Super. 638, 643-44 (App. Div. 1995); Thorson v. Thorson, 241 N.J. Super. 10, 11-12 (Ch. Div. 1989).

The motion judge properly recognized that N.J.S.A. 2A:17-56.23a does not preclude a reduction of child support retroactive to the date of emancipation. Nonetheless, she chose a later effective date for the emancipation itself, on what she alluded to as equitable grounds stemming from plaintiff's delay in filing his motion.

Although we normally accord substantial deference to the determinations of Family Part judges, see Cesare v. Cesare, 154 N.J. 394, 411-12 (1998), we conclude that this issue represents an instance where the Family Part's authority was misapplied. Plaintiff did not unduly delay in seeking emancipation relief once he obtained his ex-wife's consent to it. Plaintiff's reply certification reasonably explained why it took him several months to retain counsel to file a formal motion for emancipation. He attested that he had been out of work for much of that year and had difficulty in paying a retainer, and that he felt ill-equipped to attempt to file the motion as a pro se litigant.

Most importantly, defendant's November 22, 2008 certification explicitly and unequivocally confirmed her consent to emancipation. She could have no reasonable expectation after that date of continuing to receive a child support payment for the older daughter, who had not resided at home for many years. In fact, plaintiff could have requested that the emancipation be made retroactive to the older daughter's eighteenth birthday in 2003; instead, he took a more tempered approach by requesting emancipation as of the date of defendant's November 2008 letter of consent. The letter was inadvertently sent to the wrong county, but that error does not alter the older daughter's actual, real-life status at the time as an emancipated adult.

Consequently, we order that the Family Part modify its order of October 19, 2009, so as to provide that the effective date of the older daughter's emancipation is November 22, 2008, contemporaneous with the date of defendant's consent. We further direct the Probation Department to make the appropriate adjustment in child support arrearages.

The second issue raised by plaintiff, again unopposed by defendant on appeal, arises out of the motion judge's decision to reallocate, from plaintiff to defendant, the dependency tax deduction for the parties' son. In Article IX of the PSA, the parties agreed to divide the tax deductions for the three children, so that defendant would be able to claim the two unemancipated daughters as dependents on her tax return, and plaintiff, in turn, would claim the parties' son as a dependent. The arrangement, as structured, contemplates that plaintiff would retain his one deduction until the son was emancipated. The PSA does not specify any reallocation of the deduction as the children, in turn, become emancipated. 1

It is undisputed that as of the time of the October 20, 2009 order, the younger daughter and son, both of whom were still residing with their mother, were yet to be emancipated. Under the terms of the PSA, each of the parties at that point was entitled to a single dependent deduction. However, the motion judge granted defendant's cross-motion to reallocate the deductions, allowing defendant to claim both of the unemancipated children as dependents and leaving plaintiff with no deduction. The judge did so, according to reasons stated within her October 20, 2009 order, because plaintiff apparently has not shouldered his burden of sharing in parental obligations such as the chauffeuring, and the supervision of the children's play, homework, meals, laundry, clothing, and medical care since the time of the divorce.

The motion judge correctly noted the Family Part's general power to allocate dependent exemptions2 on an equitable basis. See Gwodz v. Gwodz, 234 N.J. Super. 56, 62-63 (App. Div. 1989). The judge also rightly noted that, in the absence of an agreement by the divorcing parties in a PSA explicitly allocating the tax exemptions, Internal Revenue Service guidelines establish criteria for making such allocations between divorcing spouses. Defendant, as the custodial parent of the two unemancipated children, appears to meet those criteria. See Current IRS Publication 501 (2010). The judge, in essence, treated the older daughter's emancipation as a sufficient change in circumstances under Lepis v. Lepis, 83 N.J. 139, 147-48 (1980), to warrant the reallocation of the deductions presented under the PSA. The judge's analysis on this issue did not, however, discuss and compare the parties' respective financial situations.

Plaintiff does not dispute the Family Part's authority to reallocate the dependent deductions in appropriate situations. However, he maintains that the motion judge should not have reallocated the deductions here without an explicit analysis of the parties' respective financial circumstances and the relative benefits that they provided and received. Plaintiff argues that the court should not have altered the parties' PSA in "a financial vacuum."

We agree with plaintiff's request for a financial analysis of the allocation issue. One of the critical factors for the court in evaluating whether a change of circumstances warrants modification under the Lepis standards is an examination of "the financial status of both parties." Lepis, supra, 83 N.J. at 158. Although earlier portions of the judge's order, which dealt with a host of other post-judgment issues, refer to the parties' recent earnings, i.e., that plaintiff's pro-rated earnings were almost $20,000 less than defendant's, the judge did not comment on those relative earnings in the portion of her decision addressing the tax deductions. Nor did the court's discussion about the tax deductions comment upon the parties' respective expenses. Given the present record, we are not confident that plaintiff's alleged failure to assist with parenting responsibilities has sufficiently burdened defendant, at least from a financial perspective, to justify the reallocation of the tax deductions.

Although we do not require a plenary hearing, the tax deduction issue should be remanded for fuller consideration, after the parties exchange and submit updated case information statements disclosing their income, expenses, assets, and liabilities. In the meantime, defendant may continue to claim both of the two unemancipated children as her sole dependents, pending the trial court's reexamination of the issue.

The order dated October 19, 2009 is therefore modified in part and remanded in part, for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 It is possible that the younger daughter may be emancipated before her older brother, depending upon any higher education opportunities that they might pursue and other circumstances.

2 We utilize the terms "deductions" and "exemptions" interchangeably for purposes of this opinion, mindful that they are distinct forms of tax relief under the tax laws. The nomenclature in the PSA here refers to "deductions," although the trial court's opinion refers to both "exemptions" and "deductions."