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Musolino v. Musolino

May 23, 2008

JOSEPH MUSOLINO, PLAINTIFF-APPELLANT,
v.
DEBRA MUSOLINO, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-622-96A.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 19, 2008

Before Judges C.S. Fisher and Kestin.

The record in this post-judgment matrimonial dispute reveals that the parties were married in 1975, had two children, and were divorced in 1997. By way of a property settlement agreement, which was incorporated into the judgment of divorce, plaintiff Joseph Musolino agreed to "be responsible for all college costs on behalf of the unemancipated children."

The parties' eldest daughter, Jennifer, graduated from high school in 1994, attended Brookdale Community College in Lincroft for a while, and then enrolled at Arizona State University in 1997. She graduated in 2001. Jennifer later obtained two master's degrees. She is now thirty-one years old, and married with one child. By way of a motion filed in 2005, defendant Debra Musolino sought, among other things, an order compelling plaintiff to pay her $54,408.34 and to pay Jennifer $20,370.19, based on the contention that these funds represented what was due on student loans for Jennifer's education at Arizona State.

The trial court denied the motion without prejudice and ordered defendant, on June 3, 2005, to provide plaintiff, within thirty days, "evidence of all college loans and an accounting of all monies disbursed from said loans including but not limited to bills, receipts, canceled checks as well as proof of any and all scholarships and grants received." The order further stated that "[i]f the parties cannot agree after review of the aforementioned documents either party may request that the court relist the matter." Nearly a year later, on May 8, 2006, the trial court entered an order that permitted a sixty-day period of discovery following which the case would be "set down for a plenary hearing."

The parties appeared for a plenary hearing before a different judge (the trial judge) on March 7, March 22 and May 10, 2007. By way of his oral decision of May 10, 2007, the trial judge granted the relief sought by defendant and entered an order, on June 14, 2007, which required, among other things, that plaintiff: "be solely responsible for the student loan indebtedness incurred by the defendant and Jennifer Scarpa"; "pay directly to Sallie Mae the sum of $54,674.95 within six months"; and "pay directly to Direct Loans the sum of $20,624.82 within six months."

Plaintiff appealed, raising the following arguments for our consideration:

I. THE TRIAL COURT ERRED BY ORDERING PLAINTIFF TO PAY THE STUDENT LOANS OBTAINED BY DEFENDANT AND THE PARTIES' DAUGHTER IN THE [AMOUNT] OF $54,408.34 BASED UPON THE DOCTRINE OF LACHES AND SHOULD BE REVERSED.

II. THE TRIAL COURT ERRED IN REQUIRING PLAINTIFF TO PAY THE STUDENT LOANS ACQUIRED BY PLAINTIFF IN THE AMOUNT OF $54,408.34 ON BEHALF OF THE PARTIES' DAUGHTER BASED UPON THE THEORY OF UNJUST ENRICHMENT AND SHOULD BE REVERSED.

III. THE TRIAL COURT ERRED IN REQUIRING PLAINTIFF TO PAY STUDENT LOANS OBTAINED BY HIS DAUGHTER IN THE AMOUNT OF $20,370.19 AS THEY WERE NOT UTILIZED FOR COLLEGE COSTS AS REQUIRED BY THE PROPERTY SETTLEMENT AGREEMENT AND SHOULD BE REVERSED.

(a) THE TRIAL COURT ERRED IN FAILING TO APPLY PRINCIPLES OF NEWBURGH[*fn1 ] IN THE CASE AT HAND AND SHOULD BE REVERSED.[*fn2 ]

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. ...


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