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Martin v. Dixon

October 21, 2009

EDWARD J. MARTIN, III, PLAINTIFF-RESPONDENT,
v.
DANA LISA DIXON N/K/A DANA LISA GENOVESE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1971-94C.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 1, 2009

Before Judges Payne and Waugh.

Defendant Dana Lisa Genovese appeals from post-judgment orders requiring her to pay one-half of her children's college expenses, denying her applications for reimbursement of certain unreimbursed healthcare expenses, denying counsel fees, and denying reconsideration. We reverse and remand for a plenary hearing on the issues of the college expenses and unreimbursed healthcare expenses, and for further explanation of the decision not to award counsel fees.

I.

Plaintiff Edward Martin and Genovese were married in 1985. They had three children: a son born in 1985; a daughter born in 1987; and a second daughter born in 1991. The parties were divorced in 1995. The final judgment of divorce included a property settlement agreement (PSA).

The PSA provided that "[t]he Husband shall provide health insurance for the benefit of the children until the children are emancipated." An addendum to the agreement stated that "[m]edical insurance deductibles will be paid for ninety (90%) percent by the husband and ten (10%) percent by the wife." The PSA did not address responsibility for post-secondary education. Both Martin and Genovese have since remarried. Genovese's new husband has been providing health insurance coverage for the children through his employer-provided plan, apparently at no additional expense.

Martin is a fifty percent owner and full-time employee of a ski and snowboard shop. He asserts that his business has lost money in recent years. In 2005, the business reported a loss of $18,255. In 2006, it reported a loss of $36,263. Martin's individual tax returns reported adjusted gross income of $62,158 in 2006, and $67,416 in 2007. He pays Genovese $625.00 in monthly child support. Martin claimed that his contributions to the older daughter's college costs and rent in 2007 totaled $20,135.45.

Genovese contends that she cannot work due to medical conditions that cause her pain. She has supported that claim with letters from her chiropractor and neurologist. Genovese reported a joint gross adjusted income of $120,409 in 2005, $135,618 in 2006, and $142,490 in 2007, attributable to her current husband's salary. She asserts that she does not have the assets to contribute to the children's education, claiming that the residence and vacation home she owns with her husband are heavily mortgaged and possess little equity from which to borrow for that purpose.

The children's living arrangements differ. In 2006, the son was living with Genovese. He attended Rutgers University full time, but transferred to a part-time program at Brookdale College. Later in 2006, he ended his enrollment and began working full time for Martin's business. The Family Part has since declared him to be emancipated.

At the time the motions involved in this appeal were filed, the older daughter was attending Rutgers University on a full-time basis. She lived on campus during the school year, and with Martin during the summer. The younger daughter attends high school and, at the time the motions were filed, lived with Genovese. She had occasional overnights at Martin's home. However, during the pendency of this appeal, the Family Part granted residential custody of the younger daughter to Martin.

In May 2007, Martin filed a post-judgment motion seeking to

(1) emancipate the son; (2) impute $20,000 of income to Genovese; (3) recalculate child support to reflect changes in circumstances; and (4) require Genovese to provide health insurance for the children. Genovese filed a cross motion seeking to (1) increase Martin's child support payments; (2) require Martin to pay for all college costs incurred by the older daughter; (3) require Martin to be responsible for health insurance; and (4) require Martin to pay her counsel fees and costs. Both parties sought other relief not relevant to this appeal.

Following oral argument on July 27, 2007, the Family Part judge entered an order (1) emancipating the son; (2) denying Genovese's request for a plenary hearing; (3) denying a credit towards Martin's payment of child support; (4) requiring Genovese's current husband to continue health insurance coverage for the children through his employer-provided plan; (5) denying Genovese's request for counsel fees; and (6) requiring the parties to "split the costs of the children's college education on a pro rata basis after the children have applied for all scholarships, loans, grants, and other forms of financial aid."

Martin's attorney wrote to the motion judge on August 29, 2007, seeking clarification of that part of the order dealing with college costs and requesting a conference to clarify its terms. Following a conference held in September 2007, the judge entered an order on October 1, 2007, vacating the requirement that the parties split college costs, and setting a discovery period of sixty days on the issue of the children's higher education costs.

On April 29, 2008, Genovese filed a motion seeking to require Martin to (1) contribute to college costs for both daughters; (2) provide their health insurance; and (3) pay counsel fees. Martin filed a cross-motion seeking to compel Genovese to contribute to the college costs. The judge issued an order on June 11, 2008, requiring Genovese to pay one-half of the college expenses from 2007 forward. The order required Genovese to pay one-half of the older daughter's 2007 expenses within thirty days, and to reimburse Martin for one-half of all future college expenses within thirty days of receiving notice of the expenses. The parties were ordered to split college expenses for the younger daughter equally. Genovese's motion concerning medical insurance and expenses was denied. The judge denied both parties' requests for counsel fees.

With respect to college costs, the judge explained his reasons as follows:

Since [the older daughter] is in her last year of college, the primary focus is now on each party's financial ability to pay the costs and the resources available to either party. The Court's decision to vacate the original order splitting college expenses on a pro rata basis is based on the Court's finding that Newburgh [v. Arrigo, 88 N.J. 529, 545 (1982),] looks at more than just income.

The discovery period was ordered after the income of the parties was known and when the resources of the parties needed to be ...


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