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Aquino v. Aquino

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Imposition Of Additional Child Support.

B. The Trial Court Erred By Not Giving Sufficient Consideration To The Changed Circumstances Warranting Amendment Of The Property Settlement Agreement.

II. THE COURT ERRED BY NOT FULLY CONSIDERING THE BEST INTERESTS OF THE [PARTIES' SON] IN REFUSING TO GRANT [DEFENDANT] ADDITIONAL PARENTING TIME.

III. THE ENTIRETY OF THE PROPERTY SETTLEMENT AGREEMENT SHOULD BE VACATED AS CONTRARY TO PUBLIC POLICY.

A. The Right To Support Can Not Be Bargained Away By A Child's Parents.

B. The Inclusion Of Provisions In The Property Settlement Agreement Contrary To Public Policy Invalidates The Entire Agreement.

As for Point I, we agree, in a general sense, that any award of child support based on a change in parenting time should encompass consideration of any payments Ernesto made toward college expenses; indeed, such an analysis requires a consideration of the parties' needs and ability to pay, which would include, in Ernesto's case, any college tuition payments he was then making. However, Ernesto failed to provide information regarding his income and failed to provide a case information statement as required by R. 5:5-4(a). See Zazzo v. Zazzo, 245 N.J. Super. 124, 129 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991). The need for a moving party to fully comply with the letter and spirit of this rule -- and its requirement that the movant provide all prior case information statements, as well as a current case information statement --cannot be understated. Ernesto's failure to comply with this rule precluded a fair consideration of the matter and resulted in a proper denial of his motion.

In considering Point II, we must first recognize that the only order referred to in Ernesto's notice of appeal is described as an order entered on November 17, 2006, which was the date the judge heard oral argument on the last round of motions. Although no order was entered on that date, we assume for present purposes that Ernesto intended to appeal the January 10, 2007 order, which was entered more than one month after the oral decision rendered on November 17, 2006. However, even when so broadly viewing Ernesto's notice of appeal, we are constrained to conclude that we have no jurisdiction over the argument contained in Point II. The January 10, 2007 order makes no mention of parenting time. It only re-confirms the child support award, Ernesto's obligation to pay child support arrearages, and Ethel's right to travel with their son to the Philippines. Since appeals lie only from judgments or orders, not opinions, see 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004), we have no foundation upon which to render a decision on the parenting time question. Accordingly, we give no consideration to the issues raised in Point II.

Lastly, in Point III, Ernesto argues that the PSA is unconscionable insofar as it placed the burden on Ernesto to pay the college expenses of the children and should be rescinded. We find insufficient merit in this argument to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We emphasize that this argument addresses only the enforceability of the PSA and not whether any of its components should be modified based on changed circumstances. As we observed with regard to Point I, whether the child support and college expense obligations should be modified were questions that were not properly presented to the trial judge because of Ernesto's failure to comply with R. 5:5-4(a). The argument of the enforceability of the PSA, however, is wholly without merit, and we reject it.

We would finally observe in this regard that Ernesto appears to assert in Points I and III that the PSA's college expense provision regarding their son should be modified or terminated because of the child support obligation that was imposed. As we noted at the outset of this opinion, the parties' son is presently thirteen years old. Any obligation imposed by the PSA for his future college expenses can have no bearing on any of Ernesto's other obligations at the present time because that stipulated obligation has not yet been triggered in light of that child's age. The question to be considered should Ernesto file in the near future a motion based on changed circumstances relates to the financial status of the parties at that time and not what that status may be in the unknowable future. See Boardman v. Boardman, 314 N.J. Super. 340, 345-47 (App. Div. 1998).

Affirmed.

20080124

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