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Francis A. Varrone v. Salli K. Varrone

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 6, 2011

FRANCIS A. VARRONE, PLAINTIFF-APPELLANT,
v.
SALLI K. VARRONE, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-829-94.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 28, 2011

Before Judges Kestin and Newman.

In this post-judgment matrimonial matter, plaintiff, Francis A. Varrone, appeals from an April 16, 2010 order denying his motion for reconsideration of an earlier disposition in which he sought emancipation for the youngest of his four children. Plaintiff further sought to be relieved of sanctions imposed because he did not secure health insurance coverage for that son. He also contends that an evidentiary hearing should have been held because of factual disputes between the parties. We now affirm.

The relevant background may be summarized as follows. Plaintiff and defendant, Salli K. Varrone, were married on September 18, 1977, and divorced on April 20, 1994. Four children were born of the marriage. The three older children were emancipated.

In the Property Settlement Agreement (PSA), defendant was permitted to remain in the marital residence in lieu of receiving child support and alimony. In exchange, plaintiff was to pay for all costs associated with the marital residence, which included payment of the mortgage, property taxes, homeowner's insurance, and all of the children's expenses.

Upon the sale of the marital home, the net proceeds were to be divided equally. Plaintiff retained ownership of property in Manahawkin, New Jersey, and his interest in his accounting firm, as well as an interest in four condominium units in Montville, New Jersey. He also retained his shares of AT&T, IT&T, and Exxon stocks, which were to be "applied towards the higher education expenses of the [then-]infant children of the marriage."

Each party retained their own individual retirement accounts and their own automobiles. Defendant retained all the furniture and the furnishings in the house with a few enumerated exceptions. Also, this PSA, which was annexed to the final judgment of divorce, provided as follows:

Husband shall pay for all medical, dental and prescriptive drug expenses for the infant children of the marriage. Husband shall maintain coverage for the infant children under his major medical and hospital insurance policies, or separate policies, whichever may be most advantageous. Husband shall pay for the cost of tuition and books for the education of the infant children, including elementary school, high school, college, graduate school, trade school, vocational school and the like.

In claiming that his youngest son should be declared emancipated, plaintiff contends that he has not taken the requisite number of courses to be a full-time student, has performed poorly in the courses he has completed, and has withdrawn from certain courses. Plaintiff asserts that he should be free of further educational obligations in view of his son's attendance and performance at the college level.

Plaintiff believed that the court did not appreciate that it took his son nine semesters to graduate from a community college when it should have been completed within four semesters. At the time the motion for reconsideration was decided, his son was enrolled through Rutgers University Agricultural School in a Turf Management Program, which began on September 30, 2009, and was scheduled to be completed by December 2010. The prospect for future employment was in the golf course maintenance industry. His son was in Colorado as part of the internship component of this program and scheduled to return to New Jersey for further course requirements.

Defendant admitted that her son had not been "an exceptional student," but attributed it to his suffering from a learning disability, although he had not been tested. She certified that the son had been enrolled in school full time since 2005, except for one semester. The Rutgers Turf Management program required that the son complete 200 plus hours of "in-service field experience." It appeared that the son had been enthusiastic about employment in the field of golf course maintenance.

In addressing the issue of emancipation on the reconsideration application, Judge Catherine I. Enright had this to say:

Again, the Court was aware Michael was in this program when the February 5, 2010 Order was issued. Michael was placed in a program in Colorado, but he is to return to New Jersey, and no one disputes that he is on target to complete his education by the end of the year. Defendant's attorney filed a letter brief, in which she directs the Court to view the term 'higher education' as including not only college, but also 'trade schools and such other such programs. . . .'

Her position is supported by the specific language of the agreement. In addition, the Court has held that children may be considered unemancipated if they take a brief hiatus from academic pursuits. See

Keegan v. Keegan, 326 N.J. Super. 289 (App.

Div.[] 1999[)]. Unlike the child in Keegan, supra, who worked full time without attending college for a year, Michael has been consistently attending school and has finally found a program in which he can succeed. He only recently turned 22 and the Court found that it was appropriate for Michael to be able to continue his education. There is no basis in the reconsideration papers to alter that ruling.

With regard to health insurance, plaintiff believed that he should have been relieved of that obligation. Plaintiff asserted that Michael was not a full time student and was over the age of eighteen and would not be covered in Colorado because the policy in place involved a medical network in New Jersey. Plaintiff also claimed that Michael did not attempt to complete insurance applications as requested, which was necessary because he was over the age of eighteen. Plaintiff also asserts that it was unconscionable to inflict sanctions on him when health insurance for Michael was not in place because plaintiff, under the PSA, was obliged to pay for all medical costs in any event.

In rejecting this argument, Judge Enright pointed out that the provisions for the PSA "makes plaintiff not only pay for the children's unreimbursed health expenses, but also secure health insurance." The trial judge was not convinced that Michael was uninsurable, even if it was necessary to secure a separate policy. The court did direct defendant "to contact Michael to facilitate his completion of the application," if that had not already been done.

Lastly, in denying the motion for reconsideration, the trial judge questioned whether the motion was filed in time since the order from which reconsideration was sought was dated February 5, 2010, and the reconsideration motion was not filed until March 1, 2010. Notwithstanding, the court said,

More importantly, Plaintiff has not provided the Court with new case law or court rules that were overlooked in making its previous decision. Further, he has not supplied the Court with any new facts that were not available at the time the original motion was filed. In essence, the pleadings simply rehash the same arguments before the Court on the original motion, which papers were thoroughly reviewed prior to a decision being made. Indeed, much of the relief requested in Plaintiff's current motion, and his prior Cross Motion are identically worded, and only placed in a different order in spots. Ultimately, Plaintiff has not met his burden under the Court Rules to justify reconsideration of the February 5, 2010 Order and except as set forth herein, his application is DENIED.

On appeal, defendant raises the following issues for our consideration:

POINT I

FAMILY COURT ERRED IN REFUSING TO EMANCIPATE MICHAEL.

A. The terms of the PSA Should Have Been Reasonably Construed to Limit the Plaintiff's Obligations With Regard to Education.

B. The Court Erred in Refusing to Find Michael Unempancipated Under the Newburgh Factors.

POINT II

FAMILY COURT ERRED IN FAILING TO HOLD AN EVIDENTIARY HEARING.

POINT III

THE COURT ERRED IN IMPOSING SANCTIONS AGAINST THE PLAINTIFF WITHOUT A HEARING.

POINT IV

FAMILY COURT ERRED IN REFUSING TO SANCTION DEFENDANT FOR BEING UNTRUTHFUL TO THE TRIBUNAL.

We have considered plaintiff's legal arguments in light of the record and the briefs submitted, and reject them. We affirm substantially for the reasons expressed by Judge Enright in her written opinion of April 16, 2010. We add that the issues did not present disputes of material facts. Consequently, there was no need to hold a plenary hearing because the issues could be decided on the record before the trial judge on this reconsideration motion.

Affirmed.

20110406

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