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Canova v. Canova

April 24, 2009

ANTOINETTE CANOVA, PLAINTIFF-RESPONDENT,
v.
JOSEPH S. CANOVA, SR., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-1139-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 27, 2009

Before Judges Skillman and Grall.

Plaintiff Antoinette Canova and defendant Joseph S. Canova, Sr., were divorced on March 8, 2006. An oral agreement resolving all issues was placed on the record that day and that agreement was reduced to writing and incorporated in an amended final judgment on March 30, 2006. On August 17, 2007, the court granted plaintiff's motions to enforce the judgment and awarded counsel fees. On October 9, 2007, the court modified that order on defendant's motion for reconsideration and plaintiff's cross-motion to enforce. Defendant appeals from the orders entered on October 9, 2007.

The following facts are pertinent to the issues presented on this appeal. The Canovas have three children; the eldest was emancipated when his parents divorced. At the time of these motions, the Canovas' son Michael was attending college and their daughter Stephanie was attending high school. The present dispute concerns the scope of defendant's obligation to contribute to support his children.

Defendant's obligations to his children are addressed in the judgment. He must pay $200 per week in child support for Stephanie until she either graduates from college or is emancipated. In addition to and "above and beyond child support" due, defendant must pay $300 "on September 30 and March 30" of each year as "a clothing allowance" for Stephanie, until she "graduates from college." And, defendant must "provide Stephanie with a vehicle at his sole cost and expense," and pay fifty percent of "any" unreimbursed medical expenses for the children not covered by insurance.

The agreement specifies the parents' respective obligations to pay for their children's activities and college expenses. Paragraph eighteen provides, "each party shall pay 50% toward all extracurricular expenses for the parties' children until each child is emancipated." Paragraph sixteen provides, "it is anticipated that each party shall pay 50% of the children's college costs and tuition expenses after any scholarships or grants, based on each party's ability to pay at the time the child is to attend college."

Finally, the agreement addresses enforcement of the judgment. Paragraph twenty-two provides, "Husband agrees that if he violates the terms of this agreement, he shall be responsible for Wife's reasonable counsel fees and costs incurred in enforcing the provisions of this agreement." When the agreement was placed on the record, plaintiff's attorney acknowledged that the Canovas agreed "if either party violates . . . the terms of this settlement, [that party will] be responsible for the other's reasonable counsel fees."

Defendant objected to plaintiff's request to compel him to contribute to one-half the cost of extracurricular activities, medical bills, college expenses and car insurance. He contended that the judgment should be read to require him to pay only one-half of the unreimbursed medical expenses in excess of $250 per year per child and that his obligation to pay one-half of the expenses for extracurricular activities should be read to exclude any expenses included in a child support award calculated pursuant to the child support guidelines. See Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2320-22 (2009) (addressing medical expenses and activities covered by a basic child support award). The court rejected defendant's interpretation of the judgment. It concluded that the parties' agreement obligated defendant to pay one-half of "any" medical expenses not covered by insurance and all extracurricular activities in addition to $200 weekly support.

Defendant also argued that while the judgment required him to provide a car, it did not require him to contribute to the cost of insuring that car. Plaintiff had submitted a letter from her insurance agent dated June 28, 2007 indicating that the additional premium would be $3288 for the period between July 19, 2007 and March 8, 2007. She agreed, however, to pay one-half of the cost.

The court rejected defendant's interpretation of the provisions of the judgment stating his obligations with respect to Stephanie's car. The court concluded that in agreeing to provide "a vehicle at his sole cost and expense," defendant assumed the responsibility for insurance necessary to operate the vehicle.

Finally, defendant objected to paying fifty percent of his share of the college expenses until the court determined the parties' respective ability to pay. The court concluded that the parties' agreement, which expressly noted the parties' expectation that each would pay one-half of this expense, contemplated calculation of the parties' respective income only upon a showing of a change in one party's ability to pay.

Accordingly, the court entered orders requiring defendant to pay a total of $2700.76 for his share of the children's college expenses and extracurricular costs incurred during the period beginning March 2006 through May 2007 plus $1644 for car insurance. In addition the court required defendant to pay plaintiff $1500 for ...


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