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Kosowicz v. Gellatly

November 29, 2007

LINDA KOSOWICZ, PLAINTIFF-APPELLANT,
v.
JOHN GELLATLY, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Chancery Division, FM-02-28825-85.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 22, 2007

Before Judges Weissbard and S.L. Reisner.

Plaintiff Linda Kosowicz appeals from a post-judgment order of June 30, 2006 entered in this matrimonial case between plaintiff and her ex-husband, defendant John Gellatly. We affirm in part, and remand in part for further proceedings.

I.

Plaintiff and defendant were married on September 28, 1974. There were two children born of the marriage: a son, born December 20, 1977, and a daughter born January 22, 1981. The parties were divorced by Final Judgment on September 6, 1985, which incorporated a Property Settlement Agreement (PSA) dated July 9, 1985. As part of the PSA, plaintiff received residential custody of the then minor children and defendant was ordered to pay child support at the rate of $62.50 per week per child.

On August 3, 2001, in response to plaintiff's Motion to Enforce Litigant's Rights, which defendant did not oppose, the court entered an order addressing among other things, outstanding child support arrears and, further imposing upon defendant the obligation to pay a portion of his unemancipated daughter's college expenses at Seton Hall University. Subsequently, the court reduced that order to Judgment and recorded it as a lien. Paragraph three of the order compelled defendant to pay the sum of $1,100 per month directly to the plaintiff by the fifteenth of each month as a contribution towards the future college education expenses of their daughter. Also, it set arrearages in the amount of $16,289.27, representing monies that the plaintiff already expended towards the minor daughter's tuition costs for calendar years 1999 through 2001. The Probation Department was ordered to collect those arrearages in the amount of $50 per week. Paragraph five of the order compelled defendant to reimburse plaintiff in the amount of $1,053.25 within thirty days. Paragraph seven of the order set child support arrearages as of August 3, 2001, in the amount of $94,250.

Further, the order increased defendant's child support obligation for the party's daughter, Lindsay, to $146 per week, and required that defendant pay an additional $50 per week towards child support arrearages. The Court ordered a wage execution in paragraph eight of the Order. Finally, in paragraph nine, the court ordered defendant to pay $500 towards plaintiff's counsel fees.

Plaintiff returned to court in April of 2002, seeking enforcement of the August 3, 2001 order. In response to that motion, a different judge entered an order on April 12, 2002, increasing the amount of arrearages for child support and college education expenses to $119,562.52. Again, defendant did not file any opposition.

In March of 2003, plaintiff again sought enforcement of the previously entered child support orders. Once again, the motion was unopposed. On March 7, 2003, an order was entered finding defendant in violation of litigant's rights. The court ordered defendant to immediately pay the sum of $12,700, representing a partial reimbursement of the $16,289.27 Judgment. The March 2003 order included the portion of the August 3, 2001 order compelling defendant to contribute toward Lindsay's college costs at the rate of $1,100 per month, via direct payment. The court also set defendant's obligations towards Lindsay's junior and senior year college expenses at $31,794.50.

Having found that plaintiff had already paid $15,340 toward Lindsay's junior year expenses, the court entered Judgment against defendant in the amount of $15,340, representing fifty percent of Lindsay's junior year expenses. The court also ordered defendant to pay his anticipated fifty percent share of Lindsay's senior year expenses in the amount of $16,454.50. The order also directed defendant to pay half of Lindsay's summer school tuition for the calendar year 2002 in the amount of $3,778.50, which sum was also reduced to Judgment. The court continued defendant's obligation to pay $1,100 per month directly to plaintiff for college expenses, until paid in full. The order entered an additional Judgment in the amount of $5,526.00 nunc pro tunc to April 12, 2002, for unpaid child support and amended the court records to reflect that child support arrearages as of December 4, 2002, were $99,776.

Finally, defendant was ordered to pay plaintiff's counsel fees in the amount of $2,530.

Due to defendant's alleged failure to abide by the court-ordered support obligations, plaintiff obtained an Order for Arrest dated October 29, 2003, which in effect, committed defendant to the Bergen County Work Release Program until he complied with all of the provisions of the March 7, 2003 order. In an effort to accelerate the satisfaction of the outstanding child support awards, a subsequent order was entered on March 31, 2004, increasing the level of wage garnishment against defendant to the federal statutory level of sixty-five percent.

After the imposition of the sixty-five percent wage garnishment, defendant's payments became more regular. Thereafter, defendant retained counsel and sought to modify his child support obligations. Defendant claimed that plaintiff failed to adequately disclose payments that she received, that he was not properly consulted regarding his daughter's attendance in college, and that his children should have been emancipated earlier. He specifically noted that plaintiff requested payment for their daughter's fourth year college expenses despite the fact that she had ...


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