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McCluskey v. Romano

October 5, 2007


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-0811-01.

Per curiam.


Argued September 11, 2007

Before Judges Fuentes, Grall and Chambers.

Defendant Diane Romano (f/k/a McCluskey) appeals from the order of the Family Part denying her post-judgment motion seeking: (1) a modification of the terms of the Property Settlement Agreement (PSA), thereby increasing plaintiff's child support obligation; and (2) imputing additional income to plaintiff based on his alleged intentional underemployment.

Defendant also appeals the court's order granting plaintiff's cross-motion for overnight parenting time with the parties' sixteen-year-old daughter.

After reviewing the record before us, and in light of prevailing standards of review, we reverse the court's order and remand this matter for further proceedings consistent with this opinion. We derive the following facts from the limited record developed before the motion judge.

The parties were married on February 1, 1987, and divorced on December 20, 2002. They had three children, Michael born in 1987, Matthew born in 1988 and Alexis born in 1991. With respect to the children's post-secondary education, the PSA provided as follows:

COLLEGE EXPENSE. The parties agree that it would be in the best interest of the children to obtain a college level education. If the children desire to attend college and have the ability, the parties agree that they will support the college education of the children financially based upon the level of financial commitment which would be necessary to send a child to Rutgers State University, room, board, tuition and books. It is anticipated that the children will contribute to the degree that they can by their work effort, scholarship applications and by processing and completing such student applications for assistance and loans as may be available. The parties shall contribute to the college education costs of the children based upon an allocation determined by the ratio of their respective available incomes to the total available income of both parties. (Emphasis added.)

Notwithstanding this provision, defendant averred that both she and plaintiff encouraged their sons "to attend the best college to which each was admitted." Without identifying whether she was present during these discussions, defendant certified that the boys discussed their intention to apply to the "highest academically ranked school to which each could GET admitted" with their father during their high school years. According to defendant, plaintiff "encouraged" the boys to do so.

In the certification in support of her motion before the Family Part, defendant states that Michael "informed" her that when he advised his father he wanted to attend Georgetown University, plaintiff reacted positively to the news, and even boasted to his friends that his son would be attending Georgetown.

Michael was admitted to Georgetown and has completed his first year of studies. According to defendant, plaintiff kept in contact with his son during this time period, and paid $10,500 for the fall semester, and $12,000 for the spring semester, to offset Michael's total freshman year "college expense of $45,000." Defendant did not pay any part of Michael's college expenses. In fact, defendant claims that she is "currently unable assist in the payment of Georgetown tuition."

Defendant makes a similar claim with respect to Matthew, and his decision to attend Boston College. According to defendant, Boston College was "the highest academically ranked school to which [Matthew] has been admitted. . ." Matthew formally enrolled as a freshman in the fall of 2006 with annual semester expenses of $22,496. The only funds available to Matthew was a $3,750 per semester academic scholarship, leaving an unfunded expense of $18,746.

Plaintiff submitted a certification in opposition to defendant's motion and in support of his own cross-motion seeking parenting time with his minor daughter. In this certification, plaintiff denied ever promising his two sons that he would assume financial responsibility for college expenses beyond the "Rutgers benchmark" identified in the PSA. By contrast, plaintiff claims that he "repeatedly" asked his sons to apply to Rutgers or other "public state operated college or ...

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