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Aquino v. Aquino

January 24, 2008

ETHEL V. AQUINO, PLAINTIFF-RESPONDENT,
v.
ERNESTO F. AQUINO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. FM-07-1610-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 7, 2008

Before Judges A.A. Rodríguez and C.S. Fisher.

The parties were married in 1983 and had two children; their daughter is now twenty-four years old, and their son is now thirteen years old. They were divorced in 2004 by way of a judgment that incorporated a property settlement agreement (PSA). The parties acknowledged in the PSA that they entered into the agreement freely and voluntarily.

Because both parties are nurses and apparently had similar incomes, and because they agreed to equally share custody and parenting time, they stipulated that neither party would be required to pay child support. The PSA also contains the agreement of defendant Ernesto F. Aquino to pay "the undergraduate college, junior college, vocational, or trade school education" of their children.

While in the Philippines in 2005, the parties entered into an agreement that designated plaintiff Ethel V. Aquino as their son's primary custodian. Thereafter, Ethel moved in the trial court for an order memorializing that agreement; she also sought an award of child support, the fixing of a parenting plan that would conform to Ernesto's work schedule, and enforcement of the PSA's stipulation that Ernesto pay college tuition expenses incurred on their daughter's behalf. The trial judge directed the parties to engage in mediation on the custody issues, reserved on the child support dispute, and ordered Ernesto to pay their daughter's college expenses.

The proceedings generated by Ethel's motion were later impacted by a domestic violence action commenced by Ethel, which resulted in the fixing of a particular visitation schedule; the judge then, however, referred the other issues for resolution in this matrimonial action.

In the wake of the domestic violence matter, Ethel again moved for an order designating her as the primary custodian of their son. Ernesto attempted to cross-move, but filed too late. The judge, however, heard the argument of counsel and ultimately concluded, by way of an order entered on September 22, 2006, that Ethel should be their son's primary custodian and that Ernesto should pay $197 per week in child support, retroactive to the date Ethel filed her original motion for child support.

A few days later, Ernesto filed a motion to change custody. He also sought additional parenting time with their son, modification of the child support order, and a modification of his obligation to pay college expenses for both children. He did not, however, provide income information or a case information statement. Ethel opposed the motion and filed a cross-motion seeking enforcement of the September 22, 2006 order, payment of child support arrears in the amount of $16,351, and other relief.

Before these motions were decided on their November 17, 2006 return date, the parties negotiated a parenting time schedule. The trial judge also heard argument regarding the other issues and denied, by way of an oral decision, the relief sought by Ernesto. An order was entered on January 10, 2007, which again confirmed that Ernesto's child support obligation was $197 per week.

Ernesto filed this appeal, raising the following arguments for our consideration:

I. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED IN DENYING DEFENDANT['S] MOTION TO REALLOCATE COLLEGE EXPENSES.

A. The Trial Court Erred By Not Recognizing The Property Settlement Agreement Was No Longer Fair And Equitable In Light Of The Court's ...


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