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Simms v. Basralian

September 4, 2009

JACKIE MYERS SIMMS, PLAINTIFF-APPELLANT,
v.
GARY J. BASRALIAN, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-562-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 3, 2009

Before Judges Graves and Ashrafi.

This is a post-judgment marital matter. The parties were married on August 24, 2002, and divorced on December 15, 2005. They have one child, who was born in 2003. In a property settlement agreement (PSA) that was incorporated into the dual judgment of divorce, the parties agreed to joint legal custody of their child, with plaintiff as the parent of primary residence. The parties further agreed that plaintiff and the child could relocate to suburban Philadelphia.

With respect to their child, the parties agreed to equally share the cost of private preschool, kindergarten, summer camp, and college education. Specifically, paragraphs thirty-five and thirty-six of the PSA read as follows:

35. Each party shall pay one-half of the cost of kindergarten at a school mutually selected and pre-school at the West Hill School or a mutually selected pre-school which costs an equivalent amount of money and has a program on Monday, Wednesday and Friday mornings for three year olds and a five-day morning schedule for four year olds. Each party will pay one-half of the cost of an agreed upon camp with the cost of camp to be determined by the parties at the time of scheduling.

36. Each party shall pay one-half of the cost of the child's college education after the use of custodial funds specifically earmarked for college. The Wife represents that there are no custodial funds that are so specifically earmarked.

The PSA does not state whether the child is to attend private school or public school between kindergarten and college. In February 2008, when the child was four years old, plaintiff filed a motion to compel defendant to pay one-half of the preschool costs at the Shipley School, an exclusive private school for students in preschool through grade twelve. In response to plaintiff's motion, defendant certified that he never agreed to enroll their child "in a school which costs more than the West Hill School," and he certified that the West Hill School costs approximately $5500 per year and the Shipley School costs approximately $18,000 per year. In addition, defendant filed a cross-motion seeking the appointment of a parenting coordinator to assist the parties in promoting their child's best interests. Defendant also sought an order compelling plaintiff to cooperate with the parenting coordinator "upon penalty of contempt."

Following oral argument on March 25, 2008, the trial court found that defendant had not agreed to enroll the parties' child in the Shipley School and, if plaintiff elected to enroll the child in the Shipley School for preschool during the 2008-2009 term and for kindergarten during the 2009-2010 term, then defendant's financial contribution would be limited to the cost of the West Hill School. The court also appointed a parenting coordinator, and it required plaintiff to cooperate with the parenting coordinator. The trial court's oral decision was memorialized in an order dated April 11, 2008. Plaintiff appeals from paragraphs two and six*fn1 of the order which read as follows:

2. Plaintiff shall be entitled to enroll [the child] in the Shipley School for pre-school during the 2008-2009 term and for kindergarten for the 2009-2010 term. In the event that plaintiff elects to enroll [the child] at the Shipley School for pre-school and kindergarten, defendant's financial responsibility shall be limited to the cost of the West Hill School and plaintiff shall pay all of the remaining cost for the enrollment at the Shipley School including tuition, books, fees, and any other expenses associated with [the child's] enrollment at the Shipley School. The parties' Property Settlement Agreement shall otherwise govern [the child's] education, which Agreement only allows [the child's] enrollment in private school for pre-school and kindergarten.

6. Plaintiff shall cooperate with the Parenting Coordinator, and failure to do so may result in sanctions and/or contempt charges.

On appeal, plaintiff presents the following ...


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