KATHLEEN FLYNN VS. ROBERT FLYNN, JR. (FM-03-0312-08, BURLINGTON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0176-17T3
KATHLEEN FLYNN,
Plaintiff-Respondent,
v.
ROBERT FLYNN, JR.,
Defendant-Appellant.
________________________
Submitted November 27, 2018 – Decided April 5, 2019
Before Judges Hoffman and Suter.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Burlington County,
Docket No. FM-03-0312-08.
Robert J. Flynn, Jr., appellate pro se.
Kathleen Flynn, respondent pro se.
PER CURIAM
Defendant Robert Flynn, Jr. appeals a Family Division order that modified
his child support obligation, requiring him to pay child support and college
expenses for his younger son. He claims that Pennsylvania law should have
been applied, which would not have required him to pay child support. We
conclude that because Pennsylvania issued the initial child support order, its law
should have been applied to determine the duration of defendant's child support
obligation. Because the parties' son was over eighteen and graduated high
school, defendant was not required under Pennsylvania law to continue to pay
child support for him.
I
In 2005, plaintiff Kathleen Flynn and defendant divorced in Pennsylvania.
Defendant was living in New Jersey at that time; plaintiff moved to New Jersey
once the marital home was sold. They shared legal and physical custody of their
two minor sons, Stanley and Robert. 1 The 2005 divorce decree provided their
understanding that "at such time that mother becomes a bona fide resident of the
State of New Jersey, counsel shall submit an order to this court so that
Pennsylvania shall relinquish jurisdiction to the appropriate court in New
Jersey." The divorce decree addressed child support, parenting time and custody
issues. It was registered in Burlington County in September 2007. By that time,
Stanley was living with defendant, exclusively, while Robert alternated the
weeks he lived with plaintiff and defendant.
1
These are fictitious names.
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2
Defendant filed a motion with the Family Division in Burlington County
asking New Jersey to take jurisdiction of the case. The March 2008 order that
granted his motion provided "[t]he parties and the children now all live in New
Jersey and they always intended for New Jersey to assume jurisdiction once this
occurred. The Pennsylvania decree has been registered in this State. The parties
also agree that New Jersey should have jurisdiction." The court then modified
the divorce decree by designating defendant as Stanley's parent of primary
residence. Because Pennsylvania had held "extensive hearings" about
defendant's income and its order setting his income was "of recent vintage," the
court used the Pennsylvania court's figure in the calculations it made using the
New Jersey Child Support Guidelines, Rule 5:6A (Guidelines). Defendant paid
the difference between what plaintiff owed him in child support for Stanley and
what he owed her for Robert.
In 2013, plaintiff filed a motion in the Family Division asking for an
increase in child support. By this time, Stanley, who was still living with
defendant, was twenty years old and a full-time student in college. In his cross-
motion, defendant urged the court to calculate child support using the Guidelines
and to net the parties' child support obligations.
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In her reply certification, plaintiff argued that because Pennsylvania
entered the original order in 2005, Stanley should be emancipated retroactive to
the time he graduated high school, and that the Guidelines should not apply
because he was working and over eighteen. Defendant's attorney argued that
"this case has been registered in New Jersey, there's [a 2008] order that
recalculated and modified child support, and now we're looking to modify a New
Jersey order. So, New Jersey law should apply in this case." The court
recalculated child support for both children using the Guidelines, and netted the
difference between what plaintiff owed defendant for Stanley and what
defendant owed plaintiff for Robert, finding it was "undisputed that neither child
[was] emancipated at this point."
This appeal stems from motions filed in August and September 2016.
Plaintiff's motion asked to emancipate Stanley and terminate her obligation for
his support because he was no longer a student and lived independently in
another state. She raised other child support issues involving Robert. Although
defendant agreed that Stanley should be emancipated, he argued in his cross -
motion that Robert should be emancipated too, contending that because the 2005
Pennsylvania divorce decree was the "originating order," it governed the
duration of his child support obligation. Robert became eighteen in September
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2015 and graduated high school in June 2016. Under Pennsylvania law,
defendant argued he was not required to pay child support after Robert's high
school graduation, even if he was in college.
In September 2016, the court found that Stanley was emancipated, and
granted plaintiff's motion to recalculate child support for Robert. The court
"preliminarily" found that New Jersey had jurisdiction and that New Jersey law
governed the issues raised in the motions. The judge ordered the parties to
conduct discovery. In the months that followed, defendant's motion for
reconsideration was denied, we rejected interlocutory relief, the parties were
permitted supplemental discovery and the court denied defendant's request for a
plenary hearing.
In its July 31, 2017 order, the Family Division judge found that New
Jersey had jurisdiction and because of that, applied New Jersey law to the issues
raised. It reiterated its finding from the earlier reconsideration motion that
"[d]efendant be required to contribute to the cost of [Robert's] college
expenses." Noting that defendant "did not agree to extend his support obligation
to include college expenses," it nonetheless found "that the parties agreed to
contribute to the college expenses of the parties now emancipated older son
[Stanley] and that the parties agreed to follow New Jersey law per . . . [the]
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2008 [o]rder." It relied on the 2008 order, which said the parties "always
intended . . . New Jersey to assume jurisdiction" when all of them were living in
New Jersey and that they had agreed New Jersey should have jurisdiction. In
2013, defendant asserted it was appropriate to use the Guidelines for Stanley
because he would be living with him and attending college. "[A]t no point in
that order did . . . defendant assert that [Stanley] should be emancipated pursuant
to Pennsylvania law. Rather . . . defendant accepted at the time that New Jersey
law applied."
The Family Division judge applied the Guidelines in calculating child
support because it appeared Robert would be living at home and commuting to
college. Neither party had given the court an updated Case Information
Statement. The parties did not supply the court with any information about
college tuition, financial aid or loans. The court ordered defendant to pay $203
per week in child support with an additional $50 per week for arrears. Also,
Robert's college education expenses that were not covered by financial aid or
loans would be paid seventy-one percent by defendant and twenty-nine percent
by plaintiff based on their incomes.
Defendant appeals this order, arguing the trial court erred by determining
the parties intended to extend the duration of their child support o bligations
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when they transferred jurisdiction from Pennsylvania to New Jersey. He argues
that the court should have applied Pennsylvania law. He argues the court erred
by determining, based on the 2013 order, that he had accepted that New Jersey
law governed all aspects of the parties' case. In addition, defendant claimed the
court erred by ordering him to contribute to Robert's college expenses without a
plenary hearing to review the Newburgh factors.2
II
"[W]e accord great deference to discretionary decisions of Family Part
judges," Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012), in
recognition of the "family courts' special jurisdiction and expertise in family
matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343
(2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)); see N.J. Div. of
Child Prot. and Permanency v. A.B., 231 N.J. 354, 365 (2017). 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." Hitesman v.
Bridgeway, Inc., 218 N.J. 8, 26 (2014) (quoting Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
2
Newburgh v. Arrigo, 88 N.J. 529, 545 (1982).
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There are many reasons why New Jersey has jurisdiction in this case.
Defendant agreed that New Jersey would have jurisdiction in the 2005 divorce
decree. The Pennsylvania decree was registered in this State. Defendant
acknowledged the jurisdiction of New Jersey when he filed a motion in 2008 in
the Family Division asking New Jersey to take jurisdiction of the case to modify
the custody and child support portions of the 2005 divorce decree. All the
motions after the divorce were filed in New Jersey. The Family Division judges
consistently found New Jersey had jurisdiction.
Defendant argues that even if New Jersey has jurisdiction, because
Pennsylvania entered the initial child support order, Pennsylvania's law applies
to, and controls, the duration during which his child support must be paid.
Because of that, he argues the substantive law of Pennsylvania—which does not
require a parent to pay child support for children who are over eighteen after
they graduate high school—should have been applied to emancipate Robert,
terminating defendant's obligation to pay child support or contribute to his
college expenses.
The Uniform Interstate Family Support Act (UIFSA) "is a model act
adopted by the National Conference of Commissioners on Uniform State Laws
. . . ." Marshak v. Weser, 390 N.J. Super. 387, 390 (App. Div. 2007). The
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purpose of UIFSA is to "advance[] 'unity and structure in each state's approach
to the modification and enforcement of child support orders.'" Lall v. Shivani,
448 N.J. Super. 38, 45 (App. Div. 2016) (quoting Sharp v. Sharp, 336 N.J. Super.
492, 503 (App. Div. 2001)). "[UIFSA] resolves potential jurisdictional conflicts
regarding the enforcement of child support orders across state lines by
designating one order as the controlling child support order and provides for
interstate jurisdiction to modify child support orders when parents and the
children do not all reside in the same state." Ibid.New Jersey amended its UIFSA statute effective April 1, 2016, to "abide
provisions of the federal Preventing Sex Trafficking and Strengthening Families
Act, P.L. No. 113-183 (2014), 42 U.S.C.[] §§ 675, 675a." Lall, 448 N.J. Super.
at 45; see N.J.S.A. 2A:4-30.124 to -30.201. The amendments "did not deviate
from the scheme effectuated by the prior version." Lall, 448 N.J. Super at 45.
They apply to "proceedings begun on or after [April 1, 2016] to . . . modify a
prior support order, determination, or agreement, whenever issued or entered."
N.J.S.A. 2A:4-30.200(a). Thus, the amendments apply because the motions to
modify support were made in September 2016, after their effective date.
Under UIFSA,
[c]ritical to the jurisdictional uniformity intended under
the Act's interstate system of modifying and enforcing
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child support orders is identification of the controlling
child support order and the tribunal authorized to
exercise "continuing exclusive jurisdiction." N.J.S.A.
2A:4-30.133. In short, a court that enters an order
establishing child support retains continuing exclusive
jurisdiction to modify the order, and that court's orders
remain the controlling child support orders for purposes
of enforcement, until continuing exclusive jurisdiction
is conferred on another state's tribunal by operation of
the Act.
[Lall, 448 N.J. Super. at 46.]
In this case, Pennsylvania issued the first child support order in 2005.
After that, all of the parties moved to New Jersey and this was the children's
home state as well. New Jersey issued the controlling child support orders in
2008 once the parties moved to New Jersey. See N.J.S.A. 2A:4-30.135(b) (1)
(providing that where two or more child support orders have been issued by
tribunals in this state or another state regarding the same obligor and child and
this state has personal jurisdiction over both the obligor and obligee, then "an
order issued by the tribunal in the current home state of the child controls"
making that the controlling child support order). That status then accorded New
Jersey "continuing, exclusive jurisdiction to modify [the] child support order"
because "at the time of the filing of a request for modification this State [was]
the residence of the obligor, the individual obligee, or the child for whose benefit
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the support order is issued." N.J.S.A. 2A:4-30.133(a)(1). In this case, New
Jersey was the residence of all three: the obligor, obligee and child.
Despite this, defendant argues that the duration component of the
Pennsylvania child support order could not be modified by New Jersey.
Although his brief cited to the statute before it was amended in 2016, many of
the provisions are similar to the current law. See Lall, 448 N.J. Super. at 45.
Relevant to the present issue, N.J.S.A. 2A:4-30.171(a)(1) provides that
the "law of the issuing State or foreign country governs: the nature, extent,
amount and duration of current payments under a registered support order." In
another section, our statute provides "[a] tribunal of this State may not modify
any aspect of a child support order that may not be modified under the law of
the issuing state, including the duration of the obligation of support." N.J.S.A.
2A:4-30.178(c).
Pennsylvania adopted provisions similar to these in its version of UIFSA.
See Marshak, 390 N.J. Super. at 391. However, under Pennsylvania law, a
parent is not required to pay for "college expenses for a child who has reached
the age of eighteen." Ibid. (citing Sheetz v. Sheetz, 840 A.2d 1000 (Pa. Super.
Ct. 2003)). That continues to be the law of Pennsylvania. 23 Pa. Cons. Stat.
§4321(2) (2015); 231 Pa. Code § 1910.19(e) (2019); see Blue v. Blue, 532 Pa.
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521, 529-30 (1992).3 Because the obligation of support cannot be modified in
Pennsylvania to extend it beyond high school for a child who is eighteen, the
Family Division judge could not modify the 2005 divorce decree to extend
support.
Marshak is a case factually similar to this, where the first child support
order was entered in Pennsylvania and thereafter all the parties and the children
moved to New Jersey. 390 N.J. Super. at 389. We relied on similar provisions
from the pre-2016 version of our statute to conclude "that the Pennsylvania
support order cannot be modified to extend defendant's support obligation to
include college expenses for the parties' son who is over the age of eighteen."
Id. at 394. We reversed the order that required the defendant to continue to pay
child support and granted his motion to emancipate the child. Ibid.The 2016 amendments to our UIFSA statute further clarify that our
analysis in Marshak remains valid. The statute now includes:
3
Blue was superseded by 23 Pa. Cons. Stat. § 4327(a) (1993), which allowed a
court to "order either or both parents who are separated, divorced, unmarried or
otherwise subject to an existing support obligation to provide equitably for
educational costs of their child whether an application for this support is made
before or after the child has reached [eighteen] years of age." However, in Curtis
v. Kline, 542 Pa. 249 (1995), the Pennsylvania Supreme Court found section
4327 to be violative of the equal protection clause of the Fourteenth Amendment
of the United States Constitution.
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[i]n a proceeding to modify a child support order, the
law of the state that is determined to have issued the
initial controlling order governs the duration of the
obligation of support. The obligors' fulfillment of the
duty of support established by that order precludes
imposition of a further obligation of support by a
tribunal of this State.
[N.J.S.A. 2A:4-30.178 (d).]
The comment to this subsection of the model UIFSA statute by the
Uniform Law Commission provides that, "[t]he initial controlling order may be
modified and replaced by a new controlling order . . . . But, the duration of the
child support obligation remains constant, even though other aspects of the
original order may be changed." 4 Unif. Interstate Family Support Act cmt. on
§611 (2008). In yet another section of our UIFSA statute, N.J.S.A. 2A:4 -
30.180(b) permits "the application of the procedural and substantive law of this
State to [a proceeding to modify another State order]" when the parties all reside
in New Jersey. Although this sounds as if New Jersey law would apply, because
of its reference to our "substantive law," that is not the case. N.J.S.A. 2A:4 -
4
"We will consider the official comments to a model statute in construing our
own version of the model act, and, likewise, will consider later amendments
insofar as 'the legislative policy and intent of the new statute may inform
interpretation and application of the existing version of the statute.'" Marshak,
390 N.J. Super. at 392 (internal citation omitted) (quoting Poluhovich v.
Pellerano, 373 N.J. Super. 319, 354 (App. Div. 2004)).
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30.178(d) continues to apply as a limitation because N.J.S.A. 2A:4 -30.180(b)
makes express reference to Article Six of L. 2016, c. 1, which is where N.J.S.A.
2A:4-30.178 is contained. Also, the comment of the Uniform Law Commission
in its equivalent section to N.J.S.A. 2A:4-30.180(b), provides that "the duration
of the support obligation is a nonmodifiable aspect of the original controlling
order . . . ." Unif. Interstate Family Support Act cmt. on §613 (2008).
In this case, Robert turned eighteen and graduated high school before the
September 2016 motions were filed. Defendant had no further obligation of
support under N.J.S.A. 2A:4-30.178(d), because Pennsylvania issued the initial
controlling child support order and it was that order that governed the "duration"
of defendant's child support obligation. We reverse the July 31, 2017 child
support order. We have no necessity then to address any of the other legal issues
raised by defendant. 5
Reversed.
5
Neither party raised the issue of judicial estoppel, see Ali v. Rutgers, 166 N.J.
280, 287-88 (2000), perhaps because both took inconsistent positions on
whether the 2005 Pennsylvania order governed the duration issue. We decline
to address this, adding only that "compliance with [an] order does not equate to
. . . acquiescence to its future implementation." Jacoby v. Jacoby, 427 N.J.
Super. 109, 118 (App. Div. 2012).
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