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Formicola v. Kearns

Superior Court of New Jersey, Appellate Division

October 1, 2013

RICHARD FORMICOLA, Plaintiff-Appellant,
ARLEEN KEARNS (f/k/a ARLEEN FORMICOLA), Defendant-Respondent.


Submitted May 28, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-801-03.

Law Offices of John D'Anton, attorneys for appellant.

Law Offices of Kelly Berton Rocco, attorneys for respondent (Kelly Berton Rocco, on the brief).

Before Judges Graves and Guadagno.


Plaintiff Richard Formicola and defendant Arleen Kearns were married in 1987 and divorced in 2004. Their judgment of divorce dated April 5, 2004, incorporated a property settlement agreement (PSA) dated January 14, 2004, which was amended in 2005. Two children were born of the marriage: Jennifer is now twenty-two years old and Michael is nineteen. Plaintiff appeals from an order dated June 27, 2012. Except for two minor issues, we affirm.

Pursuant to the PSA, plaintiff is required to pay defendant alimony in the amount of $9100 per year ($175 per week) for a term of ten years from January 14, 2004 through January 13, 2014. The PSA also required plaintiff to pay child support to defendant in the amount of $18, 900 per year ($363.46 per week) together with one-third of his net annual bonus, up to a maximum of $5000. The parties further agreed plaintiff's child support obligation would be "reevaluated as each child begins college" to account for each party's "contribution to the college expenses of the children as a factor in determining child support."

With respect to the children's college expenses, the PSA provides as follows:

The parties shall share the costs and expenses of college or other post-secondary education program following each child's graduation from high school, based upon their respective abilities to pay same after set off of any reasonably available grants, loans, scholarships and/or income offered to or earned by the child, same to end upon emancipation. The parties and each child shall agree on any post high school institution.

The PSA provides that defendant and the parties' children "shall continue to reside in the marital residence and it is anticipated that they will stay there until both children have graduated high school, at which time the residence will be sold and the proceeds divided equally between the parties." The PSA also states that home repairs in excess of $250 are to be shared equally by the parties, and "[n]either party shall do anything to encumber the house in any way without the agreement of the other."

In November 2011, when Jennifer was a junior at Arizona State University, and Michael was a senior in high school, defendant filed a motion alleging that plaintiff violated the PSA. Defendant requested an order compelling plaintiff to: (1) abide by the PSA; (2) reimburse defendant for his share of Jennifer's past college costs; (3) pay his share of future college costs for both children; (4) contribute to the cost of necessary home repairs; (5) pay in full any judgments or liens against him that encumbered the former marital home; and (6) to provide additional information concerning his annual bonuses. Defendant also asked the court to order that when the former marital residence was sold, plaintiff's share of Jennifer's past college costs would be paid to defendant from the net sale proceeds, and plaintiff's remaining share of the proceeds would be held in escrow for future college costs. In addition, defendant requested that plaintiff be required to pay her counsel fees and costs.

Plaintiff opposed defendant's motion and filed a cross-motion. In his cross-motion, plaintiff asked the court to deny defendant's motion in its entirety and to: (1) recalculate his child support obligation because Jennifer was attending college in Arizona, and plaintiff had a third child with his current wife; (2) permit him to perform any necessary repairs to the former marital residence; (3) direct that the cost of any repairs "be paid for by whichever party has the funds to do so, with an adjustment made at the time of closing from the respective shares of each party's equity"; (4) apportion college costs "based on the parties' settlement agreement and each party's financial situation"; (5) determine his responsibility for Jennifer's college costs in light of her ...

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