EFSTRATIOS HADJIKONSTANTINOU v. GEORGIA HADJIKONSTANTINOU

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

EFSTRATIOS HADJIKONSTANTINOU,

Plaintiff-Appellant,

v.

GEORGIA HADJIKONSTANTINOU,

Defendant-Respondent.

_______________________________

October 3, 2014

Submitted September 10, 2014 - Decided

Before Judges Lihotz and Espinosa.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-154-06.

Efstratios Hadjikonstantinou, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Plaintiff Efstratios Hadjikonstantinou appeals from portions of a July 12, 2013 post-judgment matrimonial order, which denied his motion to emancipate the parties' son and terminate his obligation to pay child support; modified support and required his payment of arrearages; reduced to judgment sums plaintiff was previously ordered to pay; ordered him to reimburse defendant for college expenses for the parties' son; partially denied his request for copies of the children's past medical records; and rejected his assertions to vacate prior orders alleged to be based on defendant's fraud. We affirm.

The parties were married in January 1989 and have three children. After resolving the collateral issues, the parties executed a property settlement agreement (PSA) which was incorporated into a dual final judgment of divorce, filed on January 23, 2007.

Numerous post-judgment applications were filed. More particularly, motions resulted in orders establishing the parties' respective obligations for the children's college and unreimbursed medical expenses, and granted other relief. Plaintiff appealed from the July 1, 2011 and August 23, 2011 orders. We affirmed the orders in our unpublished opinion. Hadjikonstantinou v. Hadjikonstantinou, No. A-0199-11 (App. Div. Jan. 17, 2013).

On March 30, 2013, plaintiff filed a motion to modify child support and related support obligations because defendant's income increased; release to him the son's school transcripts and medical records; emancipate the son, alleging he had ceased attending college; and reimburse plaintiff for all overpayments because prior orders were based on defendant's fraud. Plaintiff maintained defendant resumed full-time employment, but withheld this information and allowed child support and other expenses for the children to be calculated as if she were unemployed. Further, he alleged the son, who graduated from high school in 2009, never enrolled in community college in Spring 2012 as defendant represented, but instead was working full-time. Plaintiff relied upon a July 1, 2013 order mandating the child provide both parents with school transcripts or child support would end. Finally, plaintiff asserted defendant filed a claim with the trustee administrating plaintiff's bankruptcy case, seeking alleged unpaid support and was allowed $15,182.12 even though he had no support arrearages. Plaintiff characterizes this as an act amounting to "common law fraud."

Defendant filed a cross-motion seeking an order denying plaintiff's request for relief and enforcing litigant's rights. She sought continuation of child support, payment of outstanding arrearages, reimbursement of college and medical costs and counsel fees. Defendant demonstrated there was no substantial change in her earnings, as the level of income used to calculate child support under the existing order was merely ten percent less than her annual income from 2012. She received another modest raise in 2013, but after permissible deductions for taxes, pension, and medical insurance, she believed the son's support would not change. Defendant provided the child's college transcript for Fall 2011, and explained he did not attend in the Spring 2012 because he enrolled in an eighteen-month technical institute where the earliest available start date was in October 2012, with graduation in March 2014. Defendant also verified the bankruptcy proof of claim represented not merely child support arrears, but also included her interest in assets granted to her under the terms of the PSA. Defendant's cross-motion sought plaintiff's share of the children's expenses as established in prior orders.

Following oral argument, the motion judge entered an order denying plaintiff's application to emancipate the son and reducing to judgment, defendant's claim against plaintiff for $19,512.95 arising from previously ordered obligations. Plaintiff's appeal ensued.

The scope of appellate review in a nonjury case is limited. Factual findings "when supported by adequate, substantial, credible evidence" are binding on appeal. Cesare v. Cesare, 154 N.J. 394, 412 (1998). All legal issues are reviewed de novo.

On appeal, plaintiff first argues the judge erred in denying the request to modify support, asserting defendant's increase in wages constituted a change in circumstances. We are not persuaded.

Child support orders may be reviewed and modified based on a showing of "changed circumstances." Lepis v. Lepis, 83 N.J. 139, 146 (1980). "The party moving for the modification bears the burden of making a prima facie showing of changed circumstances." Miller v. Miller, 160 N.J. 408, 420 (1999) (citing Lepis, supra, 83 N.J. at 157-59). The phrase "changed circumstances" does not refer to any change, but requires a "substantial change of circumstances" necessitating equitable relief. R. 5:5-4(a) ("If the party seeking the . . . . child support relief has demonstrated a prima facie showing of a substantial change of circumstances, then the court will order the other party to file a copy of a current case information statement."). A change of circumstances analysis requires the court to consider each parent's current income as against the incomes demonstrated and used in the prior child support calculation.

Plaintiff's motion sought review solely by referencing defendant's wage increase. It is undisputed defendant's 2013 annual gross weekly income had risen approximately fifteen percent from the level used to calculate child support in the July 1, 2011 order. Also, as a state employee, defendant would be required to contribute to her pension and health insurance, as well as be subject to federal and state withholdings. However, whether a change in circumstances occurs cannot be determined by reference to only one side of the parental support equation. "New Jersey statutes and case law provide that both parents are responsible for the financial needs of their children." Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2580 (2014).

Plaintiff provides no proof of his current income. In support of his motion, he neither attached his W-2, tax return or pay stubs, nor filed a current case information statement. See Palombi v. Palombi, 414 N.J. Super. 274, 289 (App. Div. 2010) (holding a former husband's motions, seeking modification of his financial obligation without providing a current or prior case information statement, were deficient on their face); see also R. 5:5-4(a) ("When a motion is brought . . . for the . . . modification of . . . child support based on changed circumstances, the pleading filed in support of the motion shall have appended to it a copy of . . . a current case information statement.").

Following our review, we discern no error in the motion judge's denial of plaintiff's request to review plaintiff's child support obligation. See J.B. v. W.B., 215 N.J. 305, 325-26 (2013) (providing decisions granting or denying applications to modify child support consider "'whether, given the facts, the trial judge abused his or her discretion'") (quoting Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012)). The absence of evidence of plaintiff's income alone mandates a rejection of a request for review, as it is unfounded. Further, the modest increase in defendant's gross wages, standing alone, is insufficient to prove a substantial change in financial circumstances, a prerequisite to review the prior order.

Addressing emancipation, plaintiff suggests the son's failure to enroll in a program of study for Spring 2012 triggered his emancipation under the parties' PSA. Plaintiff relies on paragraph three of the July 1, 2011 order, which states

The parties' son . . . shall continue to be a full[-]time student taking a minimum of 12 credits per semester. If he does not take 12 credits or withdraw [sic] from a class, child support shall no longer be paid on his behalf.

In considering this issue, the motion judge reviewed the order, along with the evidence of the child's enrollment in a technical school in Ohio, his achievements since commencing the program of study in October 2012, the certification and documents provided by each party and the child, and the terms of the parties' PSA, which defined emancipation in Article VII, Paragraph 7.1 as including

a. Reaching the age of eighteen years, or graduation from high school with subsequent full-time employment, or completion of secondary school without subsequent immediate attendance at college or trade school and engaging in or having the ability to engage in full time employment, upon and after the attaining by the child of eighteen years of age, except and provided that (1) engaging by the child in partial or part-time employment shall not be deemed an emancipation event; (2) engaging by the child in full time employment during vacation and summer periods shall not be deemed an emancipation event . . . ; and (3) if, during the course of such full time schooling, the child takes up to one year off for administrative reasons for example, due to grades, or decision by the school, the child shall not be deemed emancipated, but the support obligation shall be suspended for the said period of time that the child is not attending school.

b. The completion of four continuous academic years of college education, but in no event beyond the date on which the child reaches age 23;

The motion judge found

On the emancipation of [the parties' child], it's clear he's still enrolled in school. He's been enrolled in school since 2009. [Under] Article 7 of the Property Settlement Agreement in this case he should not be emancipated at this time or retroactively. He's been enrolled in some form of school since 2009. He may have taken a semester off, but the PSA allows him to do so, not counting the Spring 2012 semester he took off in order to switch schools.

So he's not yet completed the continuous years of college education. He hasn't turned 23. He's on the right track. It looks like he's going to be done in March of 2014. I'm sure the issue will probably likely arise again, but thankfully it looks like he's on the right track. He shouldn't be emancipated now. Child support obligations shall continue. And the plaintiff should not be reimbursed for what he calls "child support overpayment." He should pay his responsibilities.

The issue of "[w]hether a child is emancipated at age [eighteen], with the correlative termination of the right to parental support," is fact-sensitive. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). "[T]he essential inquiry is whether the child has moved 'beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own.'" Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)).

The legacy many parents leave their children is an education. Here, the parties' reasonable expectations, as embodied in their PSA, contemplated this fact. The PSA deferred emancipation beyond eighteen to allow each child the reasonable opportunity to complete post-secondary higher education. The terms also included the possibility of a limited break in schooling, so long as the child diligently resumed a full-time course of study.

The parties' voluntary and knowing agreement defines the governing standard when examining emancipation. This agreement was properly weighed by the motion judge when considering the request for emancipation. See Keegan v. Keegan, 326 N.J. Super. 289, 294-95 (App. Div. 1999) (holding a child is not emancipated even if he or she takes a brief hiatus from college where the child has not moved beyond his or her parents' sphere of influence). The PSA unequivocally reflects the parties' intentions and it is "'entitled to considerable weight with respect to [its] validity and enforceability' in equity, provided [it is] fair and just." Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)).

Here, we reject plaintiff's suggestion the motion judge abused his discretion in not applying the July 1, 2011 order and also in interpreting the PSA provisions. Rather, we conclude the judge properly considered all facts and circumstances to decide whether the child should be emancipated. We find no error in the decision to deny plaintiff's motion to retroactively emancipate the child and refund child support previously paid.

Plaintiff also suggests the motion judge should have reviewed the factors identified in Newburgh, when considering whether child support should continue. Reliance on Newburgh is misplaced as the factors set forth therein are to be analyzed when evaluating a claim for contribution for college expenses, paid in addition to ongoing child support. Newburgh, supra, 88 N.J. at 545. In this matter, plaintiff was not ordered to contribute to the child's technical schooling tuition and expenses.

Plaintiff's final contentions relate to the judgment entered. He argues the judge erred because defendant allegedly obtained approval of a proof of claim in the bankruptcy court based on misrepresentations and also engaged in fraud during prior post-judgment hearings. We note simply that the trial court, and this court, may not review determinations by the United States Bankruptcy Court. Also, the prior orders filed on July 1, 2011 and August 23, 2011, were fully considered and affirmed on appeal. Further review is barred.

Regarding the entered judgment, although defendant's proof of claim was filed in the bankruptcy court, there is no evidence in this record that the claim was paid or discharged. Absent such proof, we have no basis to find defendant's interests, as set forth in prior orders, were satisfied. We note support obligations are not subject to discharge in bankruptcy proceedings and the discharge of other equitable obligations ordered in a matrimonial proceeding has been significantly curtailed. See 11 U.S.C.A. 523(a)(5) (exempting from bankruptcy discharge debtor's obligations under a domestic support obligation); 11 U.S.C.A. 523(a)(15) (exempting under specific conditions, debts "incurred by the debtor in the course of a divorce . . . or in connection with a separation agreement . . . ."). Plaintiff fails to prove the debts were paid or extinguished.

Finally, counsel's correspondence, relied upon by plaintiff regarding proposed changes to the PSA, evinces only an attempted resolution of differences; it does not represent an agreement between the parties. Any issues raised by plaintiff, but not specifically mentioned herein, have been reviewed and found to lack sufficient merit to warrant further discussion in our opinion. R. 2:11-3(e)(1)(E).

Affirmed.