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Fidanzato v. Fidanzato

February 6, 2009

DIANA FIDANZATO, PLAINTIFF-APPELLANT,
v.
MICHAEL FIDANZATO, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-381-00.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 13, 2009

Before Judges Skillman and Grall.

Plaintiff Diana Fidanzato appeals from orders entered on her motions to enforce defendant Michael Fidanzato's obligations under their final judgment of divorce and modify their joint custodial arrangement established in the judgment. Defendant opposed the motions but did not file a cross-motion requesting affirmative relief. With the exception of a provision emancipating the Fidanzatos' oldest son, which we reverse, the order is affirmed.

The Fidanzatos' four children were born in 1987, 1989, 1991 and 1995, and the Fidanzatos were divorced by final judgment entered on August 6, 2001. The final judgment incorporates the Fidanzatos' property settlement agreement. It provides for joint custody, alimony and child support, obligates the parents to contribute to their children's "college expenses based upon their ability to pay at the time the children apply for college" and memorializes defendant's agreement to "maintain medical insurance for the children" and pay "100 percent . . . of the unreimbursed [and] uncovered medical, dental and orthodontic expenses on behalf of the children."

When plaintiff filed her motion to enforce litigant's rights in July 2007, the circumstances were as follows. The Fidanzatos' daughter Jillian was seventeen years old. She was living in plaintiff's home, had graduated from high school and had been admitted to college. Their son Brian was over the age of eighteen, living in plaintiff's home and not attending college. Although he had previously attended a community college, he did not complete his first semester and did not register for the second. Because he was no longer a student, he was not covered under defendant's medical insurance policy. No one had obtained medical insurance for him under a separate policy.

The reasons for the interruption of Brian's college education are in dispute. According to plaintiff, he left school because of emotional problems and learning disabilities and did not re-enroll because his father refused to pay the tuition. According to defendant, their son left college because he preferred to "party" and had damaged the car defendant provided and insured to allow him to commute to school and had not made any effort to register for a second semester.

Plaintiff sought the following relief in separate motions filed to enforce litigant's rights: child support; "college costs, transportation costs for schooling, insurance costs, special needs and necessary expenses by Judgment immediate lump sum"; "health insurance and health claims"; statements of accounts held by defendant for their children; sanctions for defendant's non-compliance with the final judgment of divorce; contribution from defendant for Jillian's expenses; return of Jillian's personal property, bonds and accounts held by defendant; and an order awarding plaintiff sole custody.

Although plaintiff sought an allocation of responsibility for college tuition in accordance with the parties' respective ability to pay, she did not provide the necessary information. The case information statement she submitted did not include her most recent income tax return or any other documentation of her income. Plaintiff's reasons for seeking a change in custody were not clearly articulated and consist of generalizations about defendant's interaction with Brian and Jillian.

Defendant opposed plaintiff's motions. Noting the absence of competent evidence of plaintiff's income, defendant did not submit a case information statement. He suggested that the parties contribute to Jillian's college education in accordance with a prior order concerning payment of other designated expenses for the children. That order allocated responsibility based on the parties' ability to pay - seventy percent to defendant and thirty percent to plaintiff. Defendant argued that he should no longer be required to provide any support for Brian because he was not attending college.

The trial court denied plaintiff's application to modify custody; emancipated Brian and terminated child support for him effective August 24, 2007; directed defendant to return Jillian's personal property and hold accounts and bonds designated for her college expenses pending further order; required defendant to provide plaintiff with annual statements for their children's accounts; and allocated responsibility for payment of Jillian's college expenses, seventy percent to defendant and thirty percent to plaintiff. The court subsequently denied plaintiff's motion for reconsideration.

On appeal, plaintiff states the issues as follows:

I. The plaintiff-Diane Fidanzato and children-Brian/Jillian Fidanzato [were] not given due process and the ability to be heard in erred [sic] in court orders dated August 27, 2007 and ...


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