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Molinari v. Molinari

April 1, 2008

GERALYN MOLINARI, PLAINTIFF-RESPONDENT,
v.
DAVID MOLINARI, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, FM-18-800-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 4, 2008

Before Judges Sabatino and Alvarez.

This is an appeal by defendant, David Molinari (the husband), from post-judgment orders requiring him to reimburse his former wife, plaintiff, Geralyn Molinari (the wife), the sum of $36,500, which was characterized in the orders as "child support." The amount represents credit card balances which plaintiff paid in full after defendant, who had agreed to indemnify her from this indebtedness in the parties' property settlement agreement (PSA) in exchange for forgiveness of child support, declared bankruptcy. Defendant's claim is that once having listed plaintiff as a creditor on his bankruptcy petition, he should be relieved from any obligation to her related to the PSA. Defendant also appeals the Family Part motion judge's refusal (1) to vacate the final judgment of divorce which incorporated the PSA, (2) to award him rehabilitative alimony, and (3) to grant him modification of the current order of visitation.

Both parties are pro se. We affirm the motion judge's initial order of September 8, 2006, as well as the reconsideration order of December 5, 2006, as modified in an order dated December 22, 2006. Our reasoning follows.

The parties have two children born of their marriage, a son born in September 1996, and a second son born in June 2000. They married on August 4, 1990. Their divorce was made final on December 6, 2004. On that date, the PSA they had previously signed on November 18, 2004, was incorporated into the divorce decree. No transcript has been supplied of the final divorce hearing. All the motions now under appeal were decided on the papers.

In reaching her conclusions, the motion judge relied upon the terms of the PSA, which relieved defendant from paying child support from March 2004, the date of the parties' separation, until January 1, 2006. The agreement specifies that, "[t]he parties acknowledge that wife is receiving a contribution for child support by way of equitable distribution of marital assets." In addition, as to equitable distribution of the parties' marital residence, the agreement states: "[i]n satisfaction of [w]ife's share of equitable distribution of the marital assets, and [h]usband's child support obligation pursuant to Article II, [h]usband shall convey to [w]ife all of his right, title, claim and interest in the former marital home." The PSA further states that plaintiff would be solely responsible for a first mortgage of $104,000, as well as a home equity loan having a balance of $60,000. The husband was obliged to "not further encumber the property." The PSA provides that should defendant "cause[] a lien to be placed on the property, then [h]usband shall indemnify and hold [w]ife harmless with respect thereto."

The PSA allocated all other assets and debts. Defendant retained a vehicle free and clear, while plaintiff was made solely responsible for the home equity loan, against which the parties had borrowed to purchase defendant's car. Plaintiff kept her pension and her deferred compensation plan; defendant retained his IRA. Defendant kept his carpentry business, together with any tools or equipment related to it.

The section in the PSA which allocated marital debts was quite detailed, reciting both the names and numbers of many credit card accounts and other debts, as well as the name of the spouse on the account, and known balances. Among the debts which defendant agreed to satisfy in full, and from which he indemnified plaintiff, were three accounts described in the PSA in the following manner:

Between February 3, and February 4, 2004, without [w]ife's knowledge or consent, [h]usband transferred outstanding balances from his business and personal credit card accounts totaling $21,115.00 into [w]ife's Rutgers MBNA Platinum Plus Mastercard (account . . .). Husband shall be solely responsible for paying this debt, and shall indemnify and hold [w]ife harmless with respect thereto. Within 10 days of the date of this Agreement, [h]usband shall transfer this balance back into credit card account(s) solely in his name.

In 2004, [h]usband opened and used [w]ife's inactive First USA National credit card account without [w]ife's knowledge or consent. Husband shall be solely liable for the outstanding balance on that account of approximately $3,829.00, incurred by him, and he shall indemnify and hold [w]ife harmless with respect thereto.

Husband shall be solely responsible to pay the following obligation[] and shall indemnify and hold [w]ife harmless with respect [to] . . . 50 percent of [w]ife's Citibank (account . . .), with a balance of $22,797.00.

Plaintiff asserts that when the PSA was signed, it was anticipated that defendant would file a bankruptcy petition to address his debts to third-party creditors. He, in fact, obtained a discharge in bankruptcy on November ...


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