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Kendall v. Molinari

July 21, 2008

LYLE A. KENDALL F/K/A LYLE A. MOLINARI, PLAINTIFF-RESPONDENT,
v.
PHILIP L. MOLINARI, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-517-97A.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 1, 2008

Before Judges Skillman and Winkelstein.

This is an appeal from post-judgment orders in a matrimonial action, which granted plaintiff's motion for enforcement of litigant's rights and denied defendant's motion to vacate his support arrearage and declare his son emancipated.

The parties were divorced in 1997. Under the property settlement agreement incorporated in the judgment of divorce, defendant agreed to pay plaintiff $77,000 per year in alimony, payable in $3,208.33 bi-monthly installments, for a term of ten years beginning on March 1, 1997. He also agreed to pay her $18,000 per year for child support, payable in $750 bi-monthly installments.

Defendant's income decreased between 1997, when the property settlement agreement was executed, and 2002. As a result, in August 2002 plaintiff voluntarily agreed to accept a reduction in alimony from $77,000 to $54,000 for the remainder of the ten-year term.

In 2005 and 2006, defendant fell substantially into arrears in the payment of his support obligations. Consequently, in January 2007, plaintiff filed a motion for enforcement of litigant's rights. Defendant responded by filing a cross-motion in March 2007 to vacate all alimony arrearages and to terminate his child support obligation on the ground that the parties' son was emancipated. By the time this motion was filed, the ten-year term during which defendant was obligated to pay plaintiff alimony had expired, and the parties' son was about to graduate college, which the parties agree resulted in his emancipation.

After hearing argument by counsel, the trial court granted plaintiff's motion for enforcement of defendant's obligations for the payment of alimony and child support and denied defendant's cross-motion to vacate his support arrearages and to declare the parties' son emancipated before his graduation from college. The court found that defendant's arrearages were $13,350 for child support and $110,750.62 for alimony and entered judgment against him for the combined amount of $124,100.62. However, the court declined to enforce defendant's obligation to pay one-half the cost of his son's expenses for the last three semesters of college, which totaled $34,022.18. Defendant had undertaken this obligation in accordance with the parties' property settlement agreement at the time his son was admitted to college but had stopped paying his one-half share after the son's fifth semester of college. As a result, this obligation was assumed by plaintiff's father.

The trial court deferred determination of a payment schedule for discharge of defendant's support obligations, allowing the parties thirty days to reach agreement. After the parties failed to reach agreement, they both submitted proposed payment schedules to the court for resolution of the issue. On May 31, 2007, the court entered an order requiring defendant to satisfy the judgment for arrearages, which by then totaled $129,350.62, by the payment of $2,694.80 per month. Even though defendant had submitted a proposed payment schedule, the order stated that "defendant did not submit any payment schedule." As a result, defendant resubmitted the proposed payment schedule and requested the court to reconsider the May 31, 2007 order. By letter dated July 3, 2007, the court declined to reconsider the May 31, 2007 order. The court made no findings regarding the payment schedule.

On appeal, defendant presents the following arguments:

DEFENDANT HUSBAND HAS ESTABLISHED A PRIMA FACIE CASE OF CHANGED CIRCUMSTANCES AND IS ENTITLED TO A PLENARY HEARING ON HIS ABILITY TO HAVE PAID THE LIMITED DURATION ALIMONY AND CHILD SUPPORT BEFORE THE ENTRY OF A JUDGMENT AND PAYMENT SCHEDULE.

A. The trial court mistakenly denied the husband the opportunity to seek vacation of arrears and reducing his obligation of support by applying to him an erroneous standard not required by the limited duration alimony statute and to which he did not agree.

B. The trial court erred in entering judgment against the husband without taking testimony and examining evidence to determine whether or not the wife waived her right to ...


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