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Fidanzato v. Fidanzato


February 6, 2009


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

Per curiam.


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 September 27, 2007 violating litigant's rights.

II. The trial court erred in orders dated August 27, 2007 and September 27, 2007 fails [sic] to legally address Notice of Motions (A-l to A-53 and A-81 to A-105) with rules of court in gathering of facts and conclusion[s] of law violating litigant's rights.

III. The trial erred and made decisions outside legal authority and rules of the court in court order August 27, 2007 and September 27, 2007.

IV. The trial court erred in college costs for Jillian Fidanzato and Brian Fidanzato and filed [sic] Notice of Motion relief by plaintiff-Diane Fidanzato.

V. The trial court erred in wrongly emancipating Brian Fidanzato in court order August 27, 2007.

We begin by noting that the trial court was presented with motions and responses that did not clearly identify the relief sought or assert and document the relevant facts. Motions submitted in the Family Part must comply with Rule 1:6 and Rule 5:5-4. R. 1:6-1. The notice of motion must state "the grounds upon which it is made and the nature of the relief sought." R. 1:6-2(a). A party must articulate the facts relevant to the relief he or she requests or opposes, R. 1:6-2(a); R. 1:6-3(b), and when those facts are not of record or subject to judicial notice, the facts must be supported by affidavits and documents referenced in the affidavits, R. 1:6-6. Motions to enforce or modify a prior order or judgment of the Family Part must include the relevant order or judgment, and a motion to modify a judgment or order addressing support must include the prior order and prior and current case information statements that are necessary to permit a comparison of the economic circumstances.

R. 5:5-4(a).

These rules are formulated to give the opposing party notice of the relief requested and a fair opportunity to respond. The rules also serve to ensure that the trial court has the information necessary to resolve the substantive issues and can address the requests for relief in light of the relevant legal principles. When the relief sought is not clearly stated or the facts essential to obtain that relief are not presented, relief is properly denied.

With the exception of plaintiff's objections to the order emancipating Brian, her arguments lack sufficient merit to warrant discussion beyond the brief comments that follow. R. 2:11-3(e)(1)(E). As the moving party, plaintiff had the obligation to provide proof of her current income in order to obtain an order allocating college expenses in accordance with the final judgment of divorce. Because she did not, the trial court did not err by utilizing the seventy/thirty percent allocation included in a prior order. Plaintiff also failed to meet her burden of demonstrating changed circumstances warranting modification of the Fidanzatos' joint custodial arrangement. See Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div.), certif. denied, 178 N.J. 34 (2003). The pejorative generalizations included in her affidavits did not raise a genuine question as to whether the arrangement in place was contrary to the children's best interests. Ibid.

In contrast, plaintiff's claim that it was error to emancipate Brian has merit. "[T]he privilege of parenthood carries with it the duty to assure a necessary education for children." Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). "Attainment of age 18 establishes prima facie, but not conclusive, proof of emancipation." Ibid. "[T]he essential inquiry is whether the child has moved 'beyond the sphere of influence and responsibility exercised by a parent and obtain[ed] an independent status of his or her own.'" Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)). Brief interruptions in education unaccompanied by other indicia of independent status are not sufficient to warrant emancipation. See L.D. v. K.D., 315 N.J. Super. 71, 77 (Ch. Div. 1998).

Putting aside the fact that defendant did not file a cross-motion seeking emancipation, the material facts relevant to emancipation were disputed. Defendant asserted that their son elected to leave college and refused to return, but plaintiff asserted that he left because he had emotional problems and learning disabilities, was living with her and would have resumed his college education after the second term but for defendant's refusal to pay his tuition. In adopting defendant's version of the facts and ordering emancipation, the trial court either overlooked or disregarded this factual dispute. In either event, the disputed facts were material and could not be resolved upon the conflicting affidavits and certifications presented to the court. See Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.), certif. denied, 142 N.J. 455 (1995); Fusco v. Fusco, 186 N.J. Super. 321, 329, (App. Div. 1982).

Accordingly, we reverse and vacate that portion of the court's order emancipating Brian. Because neither party filed a notice of motion requesting emancipation, we decline to remand. Our determination is without prejudice to any subsequent motions, filed in accordance with the rules discussed above, to address Brian's emancipation or support. We affirm in all other respects.


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