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DOCKET NO. A-3219-12T3







June 17, 2014


Submitted March 4, 2014 Decided


Before Judges Messano and Rothstadt.


On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Somerset County, Docket No. FM-18-1025-09.


Dean C. Vliet, appellant pro se.


Mary Louise Vliet, respondent pro se.


In this post-judgment matrimonial matter, defendant appeals from the portion of the Family Part's February 26, 2013 order denying his motion to enforce litigant's rights by terminating child support for the parties' oldest child. Defendant argued to the Family Part judge and now to us that according to the parties' Marital Settlement Agreement (MSA), if a child stopped living with plaintiff full time, defendant's child support obligation terminated. As a result, defendant believed he was entitled to relief when his son lived away from plaintiff's home during the school year in on-campus housing at college. The Family Part judge disagreed and we now affirm.

The parties were married in 1988 and had three children: a son in 1992, a daughter in 1994, and another daughter in 1996. The parties were divorced on February 28, 2012 pursuant to a Dual Judgment of Divorce (JOD) entered by the court on that date. The JOD incorporated the parties' MSA, which they signed on the same date. Defendant's attorney drafted the MSA, as plaintiff was unrepresented when the parties finally divorced.

The MSA described the status of the children's living arrangements at the time of their parents' divorce as the youngest daughter living full time with defendant, the parties' son living full time with plaintiff, and the older daughter living with the plaintiff approximately three quarters of the time. The agreement also noted that their son was "enrolled as a full time student in college." The MSA also expressly provided for child support and defined when a child would be considered emancipated:

15. The parties agree that for purposes of [the] children's support, . . . [t]he parties recognize their respective legal, parental obligation to support all of the children, and that by law, the parents cannot negotiate this obligation away; however, the amounts and structure of support may be negotiated. . . .


. . . .


(b). The Husband shall pay to the Wife $85.00 per week[.] . . . This amount represents the net agreed support levels to the Wife for [the son and older daughter].


(c) Upon the first instance of [the son] or [the older daughter] no longer living full time with the Wife, or being otherwise emancipated, the Husband shall pay $0.00 to the wife. This amount represents the net agreed support levels to the Wife for [the older daughter].


(d) Upon the first instance of both [the son and older daughter] no longer living full time with the Wife, or being otherwise emancipated, child support for [the younger daughter] will be adjusted according to Child Support Guidelines at that time.


. . . .


16. In any case, the Parent's obligation to provide any support at all (including college contributions) for the children born of the marriage shall terminate upon each child's emancipation. Each child, for purposes of this Judgment shall be deemed to become emancipated upon the earliest happening of the following events:


(a) Attaining the age of 18 years, or completion of a continuous four-year undergraduate college education . . . whichever event shall last occur. Support shall continue provided the child is productively enrolled . . . full time . . . as a matriculating student. . . . Upon written request of a party . . . the [parent of primary residence is] to provide . . . proof and certification of whether the child is utilizing school housing; and/or any other reasonably required evidence as to demonstrate that the child should not be emancipated after the age of 18.


(b) Marriage . . . .


(c) Death of the child.


(d) Permanent residence away from the residence of the parent with physical custody of the child.


(e) The child engaging in full time employment . . . .


(f) Entry into the military or armed forces.


(g) Under any circumstances, the child shall be deemed emancipated upon reaching the age of 22 years.


Two years before the entry of the JOD and MSA, the parties attended a mediation at which they reached a "Memorandum of Understanding" (MOU).1 The MOU contained a provision for the reduction of child support if and when a child left home to live away at school and it addressed the issue of emancipation:

[Defendant] shall pay the sum of $250.00 per week in child support for the three children to [plaintiff] effective upon her moving from the marital home. The parties acknowledge and understand that this amount is higher than required under the Child Support Guidelines and is being agreed to in consideration of a permanent waiver of alimony and as an accommodation to assist Mary and children to obtain and maintain suitable housing.


When [the son] graduates high school, and if attends college away from home, child support shall be reduced to $200.00 per week. When the second child goes away to college, child support shall be reduced to $175.00 per week. When the last child attends college away from home, child support shall be reduced to $100.00 and shall terminate upon that child's emancipation. In the event any child does not reside away from home to attend college, then child support shall not be decreased.

From the MOU, plaintiff's attorney at the time prepared a proposed "Property Settlement Agreement" (PSA) that incorporated a similar child support provision and detailed a proposed definition for emancipation:

a) Attaining the age of 18 years, or completion of a continuous four-year undergraduate college education or completion of high school, technical or vocational course of study, whichever event shall last occur. Support shall continue provided the child is enrolled in a full time (12 or more credits per semester) as a matriculating student. Should a child cease to be such a full time student whether working or not, he or she shall be deemed emancipated.


a) [sic] Marriage of the child . . . .


b) Death of the child.


c) Permanent residence away from the residence of the parent with physical custody of the child. A residence at boarding school, camp or college is not to be deemed a residence away from the residence of the parent with physical custody of the child sufficient to constitute emancipation.


d) Engaging in full-time employment . . . .


e) Entry into the military or armed forces.


f) Under any circumstances, the child shall be deemed emancipated upon reaching the age of 23 years.


Ultimately, by the time the parties divorced, changes and further negotiations occurred that resulted in the parties agreeing to the terms of the MSA and not the PSA or MOU.

In February 2013, plaintiff filed a motion for an order seeking leave to resume the use of her maiden name. Defendant cross-moved to "enforce litigants rights," seeking an order for the following relief:

1. Probation immediately adjusts its records and accounts to reflect that I am the PPR of [our younger daughter] as of February 28, 2012.


2. Probation immediately ceases garnishment of my paycheck and adjusts my account to reflect that my net weekly obligation to [plaintiff] has been $0 since September 5, 2012.


3. Probation adjust my account to reflect that all payments collected since September 5, 2012 were overpayments and that this total is calculated to $2,040.00 (24 weeks x $85) as of February 22, 2013.


3. [Plaintiff] is to immediately reimburse me at the rate of $85 per week until balance of overpayments is fully reimbursed.


4. Probation is to establish a wage garnishment account with [plaintiff] to collect this child support obligation from [plaintiff] for support of [our younger daughter].


5. Probation is to keep a wage garnishment account in place for [plaintiff] until [our younger daughter] is emancipated.

In support of his motion, defendant filed a certification. He did not file a case information statement as required by Rule 5:5-4(a) for a motion to modify child support because he was not claiming any change in circumstances but was only seeking enforcement of paragraph 15(c) of the MSA that terminated his support obligation if either of the two older children was "no longer living full-time with the Wife, or being otherwise emancipated," and not claiming any change in circumstances. He based his argument on the fact that the older son had "taken up residence in a dormitory." According to defendant, he was not "seeking emancipation of any child," but the enforcement of the cited provision of the MSA. He summarized his argument by referring to the MOU and PSA:

While the specific language and dollar amounts of both proposals differ[] significantly, they both clearly establish the original intent of both parties for a specific downward adjustment at the time a child first leaves to stay away at college for nine months. They both specifically and clearly differentiate this time from emancipation, and they both focus on the setting the time of adjustment to the time the child first resides away at school. It would be an incredible feat of parsing and a[] tremendous stretch of logic to argue that the language was intended to mean the child could reside at home AND SIMULTANEOUSLY reside in a dormitory. The intent of the parties is crystal clear.


Defendant further argued that, in accordance with the MSA, once the parties' son no longer lived at home, plaintiff's support obligation for the youngest child living with defendant had to be established and made payable through a wage execution by the probation department.2

Judge H. Matthew Curry denied defendant's motion and issued a comprehensive written "Statement of Reasons." As the judge explained, he disagreed with defendant's position regarding terminating support for the oldest child because of his residence in a dormitory:


Defendant believes that his child support obligation is not dependent upon a child's emancipation. He also provides previous draft of a Matrimonial Settlement Agreement, as well as a Memorandum of Understanding from prior mediation to support his position that his child support obligation depends upon whether the children live full-time with plaintiff. However, these proposals or settlement positions are not binding contracts, and, therefore, are not enforceable. At the very most, these proposals give insight into the prior positions of the parties, however, the court can only consider the language of the final MSA which was incorporated into the Judgment of Divorce.


The parties' MSA eliminates defendant's child support obligation upon the "first instance of [the son or older daughter] no longer living full time with the Wife, or being otherwise emancipated . . .". From the language of the agreement, the parties agreed that defendant's child support obligation would cease upon either [the son or older daughter] being emancipated and no[t] simply upon them no longer living full-time with plaintiff.


As [the son] is not yet emancipated, and it is undisputed that he is still pursuing his secondary education, defendant's child support obligation shall not be terminated.


Judge Curry then reviewed the applicable case law to explain why the parties' son was not emancipated. However, he noted that,

[i]n the present case, defendant has not requested that [the son] be deemed emancipated. Nor has defendant demonstrated that [the son] has moved beyond the sphere of influence of his parents, become self-supporting, or reached an independent status of his own. It is undisputed that [the older daughter] continues to reside with plaintiff.


Defendant asserted during oral argument that the language of the agreement clearly demonstrates his child support obligation should [be] altered and reduced to zero ($0) if two (2) separate events occur: [the son] or [older daughter] cease living full time with plaintiff; or either child is emancipated. However, the language of the parties' MSA does not specify the intentions of the parties clearly as defendant contends. Furthermore, even if defendant's child support obligation for [either child] is to be eliminated once they no longer live full time with plaintiff, living away at college for a temporary period of time does not necessarily translate to no longer living with plaintiff full time. As plaintiff asserts, [the son] is temporarily residing in a dormitory while at school and frequently returns home to his permanent, full time residence with plaintiff.


Finally, the judge also explained that he could not address support for the youngest child who resided with defendant because "the child support authorized to [the younger daughter] was already considered in the parties' MSA," and because defendant did not supply a case information statement that is required if he sought a change to the support amount. R:5-4(a).

On appeal, defendant essentially argues that Judge Curry misinterpreted the parties' agreement and did not enforce it according to its plain terms. Moreover, he argues that the court misapplied the law because it treated the motion as one seeking emancipation, even though he did not argue for emancipation, rather than the enforcement of the agreement's provisions regarding the termination of child support. We have considered defendant's arguments and find them to be without merit, and we affirm essentially for the reasons stated in Judge Curry's detailed Statement of Reasons.

We briefly note the established principles that guide our review of a Family Part order relating to child support. First, our review of a trial court's fact-finding function is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). We are required to "grant substantial deference to a trial court's findings of fact and conclusions of law, which will only be disturbed if they are 'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Colca v. Anson, 413 N.J. Super. 405, 413 (App. Div. 2010) (quoting Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App.Div. 2007); see also Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Ibid. (quoting Cesare, supra, 154 N.J. at 413). "Generally, we reverse only when our review discerns the trial court's findings 'are so wholly un-supportable as to result in a denial of justice[.]'" Ibid. (quoting Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988)); see also Rova Farms Resort, supra, 65 N.J. at 483-84; Roe v. Roe, 253 N.J. Super. 418, 432 (App. Div. 1992). "However, a trial court's 'interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Ibid. (quoting Manalapan Realty, L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Second, we are guided by our long standing view that "[t]he obligation to provide child support 'is engrained into our common law, statutory, and rule-based jurisprudence,'" Colca, supra, 413 N.J.Super. at 414 (quoting Burns v. Edwards, 367 N.J. Super. 29, 39 (App. Div. 2004)), and "[t]he right to [receive] child support belongs to the child." J.B. v. W.B., 215 N.J. 305, 329 (2013) (quoting Pascale v. Pascale, 140 N.J. 583, 591 (1995)); Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993); see also, J.S. v. L.S., 389 N.J. Super. 200, 205 (App. Div. 2006) ("The purpose of child support is to benefit children, not to protect or support either parent."), certif. denied, 192 N.J. 295 (2007). "Child support is the right of the child and the responsibility of both parents, not a chip won or lost by the custodial parent from the non-custodial parent[.]" Pascale, supra, 140 N.J. at 593. For this reason, "enforcing the parental duty to support children is 'an inherent part of the 'best interests of the child' rubric which underlies our family courts.'" Colca, supra, 413 N.J. Super. at 414 (quoting Monmouth Cnty. Div. of Soc. Servs. for D.M. v. G.D.M., 308 N.J. Super. 83, 88 (Ch. Div. 1997)(citing Wilke v. Culp, 196 N.J. Super. 487, 489 (App.Div.1984)).

In Colca, supra, we characterized an unemancipated child's right to support as "firmly established," and explained why even an earlier court order relieving a parent from her child support obligation was not a bar to later ordering the same parent to pay support for her unemancipated child. Ibid. We emphasized that "[o]ne of the fundamental concepts in American society is that parents are expected to support their children until they are emancipated, regardless of whether the children live with one, both, or neither parent." Ibid. (quoting Burns, supra, 367 N.J. Super. at 39) (internal quotations omitted) (emphasis added); see also, Cumberland Cnty. Bd. of Soc. Servs. v. W.J.P., 333 N.J. Super. 362, 365 (App. Div. 2000) ("At common law, parents had an absolute duty to support their children"). The requirement to pay support continues until the child has moved "beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status on 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. 1996)).

As a result, defendant's argument that child support should be terminated because his son is living at college is without any factual or legal support. First, the MSA specifically acknowledged that the parties could not "negotiate [their] obligation away." Also, it provided for the termination of support only if the child lived at school or was "otherwise emancipated," (as compared to just "emancipated") thereby triggering the termination only if the residency was part and parcel of emancipation. In addition, the MSA specifically provided for emancipation when, among other events, a child permanently resided away from the parent of primary residence, not temporarily while, for example, at school. In fact, the MSA provided for the parent of primary residence providing proof of residency at a college to establish the unemancipated status of the child.

Second, even if we agreed with defendant's interpretation of the MSA's provisions, we would not permit the agreement to relieve defendant from his obligation to pay support for his unemancipated son. See Kopak v. Polzer, 4 N.J. 327, 333 (1950) (A "child cannot be prejudiced by an agreement between parents."); Gotlib v. Gotlib, 399 N.J. Super. 295, 305 (App. Div. 2008) ("Even an explicit waiver agreement cannot vitiate a child's right to support)." Ordukaya v. Brown, 357 N.J. Super. 231, 241, (App. Div. 2003) (holding that a court must ensure that a child's interests are protected where parents reach a compromise pertaining to support); Gulick v. Gulick, 113 N.J. Super. 366, 371 (Ch. Div. 1971) ("[T]he conscience of equity will not permit present needs of children to be limited by the agreement of the [parties].").

Finally, as to defendant's claim that plaintiff should be required to pay child support to him for the benefit of their youngest daughter, we agree with Judge Curry's reasoning that the MSA netted out the support payable by plaintiff against that which defendant was to pay to plaintiff for the other children. As the judge noted, that was the arrangement agreed to by the parties that was to last until the other children were emancipated, absent a change in circumstances which defendant never claimed. Moreover, the procedure is recognized under the court's rules. See Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A, 15 (2014); Benisch v. Benisch, 347 N.J. Super. 393, 400 (App. Div. 2002) (The Child Support Guidelines' "split-parenting provisions . . . deal with a multi-child family in which one parent has custody of one or more children, and the other parent has custody of other children."). Because defendant did not seek modification of child support, there is no reason to alter that arrangement.




1 Later in 2010, a dispute arose regarding the MOU. The court held a plenary hearing as to its enforceability and then entered an order on December 20, 2010 finding the MOU to be binding.

2 Notably, at the time, the older daughter still resided with plaintiff. Under these circumstances, 15(c) and not 15(d) applied.