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Malandruccolo v. Malandruccolo

April 29, 2010

LORRAINE MALANDRUCCOLO, A/K/A LORRAINE SACHS, PLAINTIFF-APPELLANT,
v.
MICHAEL MALANDRUCCOLO, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1884-00.

The opinion of the court was delivered by: R. B. Coleman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 23, 2009

Before Judges R. B. Coleman and Simonelli.

Plaintiff Lorraine Malandruccolo, pro se, appeals from a post-divorce order dated March 14, 2008, that decided monetary issues that were disputed between plaintiff and her ex-husband, defendant Michael Malandruccolo. Among other things, the order (1) denied plaintiff's request for reimbursement of a bill for braces for the parties' daughter; and (2) granted in part and denied in part plaintiff's request for reimbursement of college expenses. The order directed reimbursement of $1,000 for the January 2006 semester's college expenses for the oldest son, but it denied, without prejudice, plaintiff's request for future contributions of college expenses for both sons.*fn1

On the return date of the motion, the judge announced his determination that $1,000 was owed by defendant under the Consent Order of November 7, 2005, but he reserved decision on whether defendant was entitled to a credit because of social security payments made to the minor which were in excess of the sum defendant would have been required to pay according to the child support guidelines. The judge issued a supplemental opinion, dated March 14, 2008, in which he concluded that "any credit regarding child support [to which defendant might be entitled] would, in fact refer to child support and not any other obligations such as medical and/or college." Defendant did not cross-appeal that determination. For the reasons that follow, we remand for an amplification of the court's reasons for denying reimbursement of the orthodontic charges, and although we affirm the award of the $1,000 agreed upon by the parties, without prejudice, for the 2005-2006 semesters, we direct that a plenary hearing be conducted for the remaining semesters if the dispute cannot be resolved by and between the parties.

At the outset, we noted that the record of this case discloses an early determination by the judge who first presided over the divorce proceedings that a plenary hearing was needed to resolve economic issues between the parties and to determine defendant's ability to pay child support and to contribute to other expenses, including the college education of the three children born to the marriage. The Inter-spousal Agreement incorporated into the Amended Final Judgment of Divorce, entered on July 27, 2001, provided that the parties would "pay to the best of [their] respective ability all post secondary education costs for the [c]hildren, including, but not limited to, tuition and room and board." The Inter-spousal Agreement also stated that "[a]ll unreimbursed health insurance costs, including but not limited to medical, dental, psychological, optometric and orthodontic costs for the [c]hildren shall be shared equally between the parties."

The issue of orthodontic costs was the subject of an order of the court entered on July 27, 2005. At that time, the court ordered defendant to pay one half of the costs of braces for the parties' daughter. That order set forth a schedule for payments of the sums representing defendant's one half share and ordered that defendant pay the specified sums directly to Dr. Gwen S. Cohen, D.D.S. Defendant failed to make those payments and instead he filed a petition for bankruptcy under Chapter VII, listed Dr. Cohen as a creditor and purported to discharge, pursuant to 11 U.S.C.A. § 727(b), the debt to her for his daughter's orthodontic work.

The exceptions to dischargeable debts are contained in Sections 5 and 15 of 11 U.S.C.A. 523(a). Those exceptions are characterized as any debt:

(5) for a domestic support obligation; . . . .

(15) to a spouse, former spouse or child of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a government unit.

Notwithstanding that each of the parties was to pay his or her half of the debt, plaintiff paid Dr. Cohen's entire bill and appeals herein the denial of her motion for reimbursement of defendant's one half. It is not clear from the record when those payments were made by plaintiff or what she knew at the time.

"Alimony and support obligations may not be discharged in bankruptcy." Schorr v. Schorr, 341 N.J. Super. 132, 137 (App. Div. 2001). "In making its determination the courts are not bound by the label which the parties ascribe to any provision in the agreement." Ibid. As explained in Schorr, supra:

In order to ascertain the parties' intent at the time of the settlement, the court must analyze the ...


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