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Musolino v. Musolino

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. 2:11-3(e)(1)(E). We add only the following.

The trial judge's resolution of the issues raised during the plenary hearing turned on his credibility findings and his assessment of the evidence. Our standard of review requires that we determine whether those findings have support in the record. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). That is, the question posed on appeal is not whether we would reach a different decision on the same proofs, but whether the judge's findings are "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

The factual record reveals that when Jennifer attended Arizona State plaintiff was permitted to pay half of his child support obligation directly to Jennifer.*fn3 With those payments, along with other funds provided by plaintiff during her years at Arizona State, Jennifer was able to pay all her essential living expenses. The parties intended that tuition would be paid through funds obtained from student loans.

With regard to tuition, the record reveals that student loans were secured by both defendant and Jennifer. The principal amount of these loans -- approximately $75,000 -- well exceeded the cost of tuition for Jennifer's years at Arizona State. The testimony elicited from Jennifer, as well as documents obtained from Arizona State, revealed that Jennifer attended for three full years, and possibly took some courses there during one summer, and that Arizona State was paid a total of approximately $35,000 for tuition, far less than the total of the student loans obtained by Jennifer and her mother.

Plaintiff argues that the trial judge erred in holding him liable for the full amount of both loans because he directly provided, as Jennifer acknowledged, for all her expenses except tuition during the time she was a student at Arizona State.

Given this finding and the undisputed fact that the funds borrowed by both defendant and Jennifer well exceeded the amount needed to pay tuition -- the only remaining expense incurred for her college education -- plaintiff argues that his liability should not exceed the amount of tuition that was paid to Arizona State. The trial judge rejected this contention.

The trial judge found in this regard that plaintiff had authorized the student loans and acknowledged his obligation to pay those loans on various occasions before his relationship with Jennifer soured a few months prior to her marriage in 2004. Even though there is no question that the borrowed funds exceeded what was needed to pay Arizona State, the judge found that plaintiff "allowed [Jennifer] to live [an extravagant] lifestyle [and] that very few people indulge their child to that extent," and that plaintiff should be obligated to fully reimburse defendant and Jennifer for the amount due on the loans that funded not only the tuition payments but the affluent lifestyle that Jennifer apparently led at Arizona State. The trial judge explained this holding in the following way:

I tend to believe the daughter's testimony with regard to her understanding with her father and that the father had lured her into believing, and luring is not the right word because up until the break[up] the father was doing what I believe he fully intended to do from the beginning, and that is to pay off these loans on behalf of his daughter.

Now the question then comes down to the issue that I raised at the beginning when I questioned counsel. Is this really a support issue? When a parent undertakes, as the [c]court finds here, to provide a child with a certain lifestyle which is above and beyond what one would normally expect and forces, not forces but encourages the child to make commitments, loan commitments in support of that lifestyle, is that at the end of the day a support obligation that the parent has to carry out?

I am satisfied that once he makes that obligation, makes that commitment in one form or another [plaintiff] is responsible for carrying it out. I would not have done what he did. I would not have personally essentially been a bank for my daughter.

But it is clear that, from the [c]court's perspective, that that is what he did and he chose to do. And that he cannot thereafter pull back from that commitment by both words and actions and expect the daughter, because of the breakup in their relationship, then make the payments of support that he committed himself to do.

To summarize, the trial judge concluded, based on his understanding of the evidence, that plaintiff paid all the non-tuition expenses of his daughter's attendance at Arizona State as those expenses accrued, and that he additionally encouraged both defendant and Jennifer to obtain student loans to fund the tuition and whatever else Jennifer desired during her attendance at Arizona State.*fn4 The judge held, in light of the passage of time since making those commitments, and in light of the incurring of these debts by defendant and Jennifer based upon plaintiff's promises and encouragement, that it would be inequitable to permit plaintiff to walk away, in whole or in part, from those commitments. We have no cause to second guess the experienced Family Part judge's findings and conclusions in this matter.

The judge also rejected plaintiff's argument that he was entitled to certain credits. The first of these related to the fact that, as the result of a foreclosure suit, the General Equity judge ordered that certain surplus funds be paid directly to defendant. The trial judge found these funds were legitimately applied by defendant to funds she had already expended on Jennifer's behalf and, therefore, ought not be used to diminish defendant's existing obligation on the student loan. The second alleged credit was based on plaintiff's claim that he made certain significant cash payments to defendant. The trial judge found that plaintiff's testimony in this regard lacked credibility.

All these findings are supported by the evidence that the judge found credible and are entitled to our deference. Cesare, supra, 154 N.J. at 411-12.

Affirmed.


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