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Miccinilli v. Collins

March 5, 2010

LISA MICCINILLI (F/N/A COLLINS), PLAINTIFF-RESPONDENT,
v.
ROBERT COLLINS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-238-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 20, 2010

Before Judges Carchman, Parrillo and Lihotz.

Defendant Robert Collins appeals from a November 21, 2008 Family Part order granting plaintiff Lisa Collins's*fn1 motion to enforce certain provisions of the parties' 1993 property settlement agreement (PSA) addressing payment of college tuition and other related expenses and denying in part defendant's cross-motion to retroactively terminate child support. In her decision, the motion judge granted plaintiff's motion and allocated college expenses at 54% for plaintiff and 46% for defendant. In addition, she ordered defendant to remain obligated to maintain a life insurance policy for the child's benefit in the principal amount of $500,000; denied defendant's motion to be designated as the parent of primary residence (PPR); and while denying defendant's motion to terminate child support, reduced defendant's child support obligation to $103.10 per week together with $30 per week towards arrears.

In allocating college expenses, the judge relied on the PSA and utilized pay stubs to determine "gross income." No information was forthcoming as to any additional income other than the wage information. Accordingly, consistent with the PSA, we remand for the limited inquiry and consideration of the gross income of the parties. In all other respects, we affirm.

These are the relevant facts before the judge on the motion and cross-motion. The parties were married September 1, 1989 and had one child, now age 19. On September 8, 1993, a final judgment of divorce (FJD) was entered providing the parties would share legal custody of the child - with plaintiff as PPR and defendant as parent of alternate residence (PAR) - and incorporated by reference the PSA. The PSA established the initial levels of child support as well as the parties respective obligations for contribution to college expenses and life insurance. The relevant provisions stated:

Article III

2. Child Support: The Husband shall pay to the Wife . . . the sum of ONE HUNDRED TWENTY-FIVE DOLLARS ($125.00)/per week . . . . [continuing] until the emancipation of the child. The child shall be deemed emancipated for the purposes of this Agreement upon the earliest happening of the following events:

D. The child attaining the age of EIGHTEEN . . . unless the child continues with higher education on a full-time basis, then the child shall not be deemed emancipated until after FOUR (4) continuous years of attending an institution of higher learning[.]

7. Higher Education for the Child of the Marriage: The parties shall each pay a portion of any such higher education expenses that the child incurs and their proportionate share shall be pro-rated on the basis of the ratio of their gross income at that time . . . . Higher education expenses include cost of tuition, room, board, books, fees and any and all other related expenses.

ARTICLE V

4. Until the child is emancipated, the Husband shall continue to maintain a certain life insurance policy . . . naming the child irrevocable beneficiary[.] The Husband shall provide proof of payment that said insurance policy is in full force an[d] effect to the Wife on a quarterly basis.

With the exception of cost-of-living adjustments (COLA), defendant's child support obligations have not increased in sixteen years or since the parties entered into the PSA. Since the divorce, plaintiff has moved to Warwick, New York and defendant to Ridgewood, New Jersey. During the summer of 2004, defendant filed a motion seeking to become the PPR and restrict plaintiff's parenting time. This motion was denied.

As the child began making preparations for college, defendant sought to negotiate an agreement for cost-sharing with plaintiff notwithstanding the language of the PSA. Despite disagreements as to the nature and roles of the parties in the negotiation process, defendant apparently agreed to contribute $13,500 per year towards the child's college expenses while continuing to pay $6,500 per year in "maintenance payments." By August 18, 2008, defendant had retained counsel, who sent a letter to plaintiff, which stated defendant "[wa]s not at all agreeable to what has been discussed with your current husband." Shortly thereafter, plaintiff alleges she was informed by the child's college choice - the University of Rhode Island - that defendant had failed to make any payments.

Plaintiff filed a motion to enforce litigant's rights seeking defendant's compliance with the college funding provisions of the PSA. The filing also "sought the production of Defendant's W-2 Wage Statement for the appropriate calculation of each party's pro-rated share of combined gross income" and "the continued payment of child support by [d]efendant consistent with prior [o]rders." This last demand specifically referenced defendant's failure to inform his employer regarding a recent COLA adjustment to his support obligation.

In response, defendant filed a cross-motion seeking to have the parties' respective assets included as gross income for purposes of determining their pro-rated shares of the child's college education and expenses, directing that any "additional college expenses" not previously agreed to by both parties be exempt from apportionment, declaring defendant to be the PPR "based upon the [] child's residence with [d]efendant for the past eight (8) years[,]" ordering plaintiff to submit a completed Case Information Statement (CIS) and begin paying defendant the resulting amount of child support, terminating defendant's own support obligations retroactive to the ...


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