JAMES LIPARI v. DENISE LIPARI-FENLON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2765-04T22765-04T2

JAMES LIPARI,

Plaintiff-Appellant,

v.

DENISE LIPARI-FENLON,

Defendant-Respondent.

_______________________________________

 

Submitted: December 5, 2005 - Decided May 9, 2006

Before Judges A. A. Rodr guez and C. S. Fisher.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, FM-10-81-94.

Roseanne S. DeTorres, attorney for appellant.

Einhorn, Harris, Ascher, Barbarito, Frost & Ironson, attorneys for respondent (Elizabeth M. Thomas, on the brief).

PER CURIAM

James Lipari (father), appeals from several provisions of a January 24, 2005 post-divorce judgment order in favor of Denise Lipari-Fenlon (mother). Specifically, father challenges the order to pay the following: (1) all college costs (tuition, room and board) for his older son after deducting financial aid; (2) all additional bona fide college fees, such as parking fees upon presentation of the bill by mother; (3) $50 per month for college transportation costs; (4) college application fees for the younger son; (5) one-half of unreimbursed medical expenses of the sons; (6) $75 per week support for older son; and (7) $247 per week support for younger son via a wage execution through the Probation Department. The central issue in this appeal is whether a pre-complaint agreement between the parties was in full force and effect. Father's position is that after the agreement was executed, the parties reconciled. Mother denies that there was such a reconciliation. Without benefit of an evidentiary hearing, the judge found that the agreement was binding and enforceable. We reverse and remand because this disputed issue could not be resolved on competing affidavits.

The parties were married in 1984. Two sons were born of the marriage. In the fall of 1991, the parties separated, and on November 4, 1991, they entered into a written agreement resolving issues of custody and visitation, spousal and child support, distribution of assets, college expenses and life insurance. The agreement, which was drafted by mother's attorney, Victor A. Rizzolo, provided that:

[this] settlement and adjustment is intended by each to be binding upon them in the event that either of them shall ever secure a decree of divorce against the other, regardless or irrespective of who may prevail in any such action.

The agreement also provided that it "shall be introduced into evidence and incorporated into any judgment that may be entered in any such action." Substantively, the agreement provides that, "[a]s to any and all unreimbursed medical, dental, eyeglasses, prescriptions and other related expenses for said minor children, the Husband and Wife shall share equally in said obligations." Rizzolo acknowledged both parties' signature. Father was not represented by counsel.

Father alleges that three months after the agreement was signed, he moved back into the marital residence. After moving in, however, he found that mother still did not want to be married, but thought that this arrangement was more convenient for the children.

In December 1992, father again moved out of the marital residence. Ten months later, he filed a complaint for divorce, alleging extreme cruelty. Mother counterclaimed for divorce. On December 13, 1993, the parties entered into a consent order regarding custody, visitation and child support. This order provided for different terms than those provided in the 1991 agreement. The consent order called for joint custody and a child support obligation of $150 per week for each son through the Hunterdon County Probation Department. The order stated in relevant part:

[Mother] reserves the right to claim support arrearages upon a prior agreement made between the parties in which the [father] was to commence paying child support to the [mother] commencing October 1, 1993 at $150.00 per week. The [mother] claims the [father] is three weeks in arrears while the [father] claims he is one week in arrears.

The order was silent on college expenses. Rizzolo represented mother and William P. Deni represented father.

On October 24, 1994, the parties were granted a dual judgment of divorce that did not incorporate or reference the 1991 agreement, but did incorporate the December 13, 1993 consent order. The parties were represented by the same attorneys that represented them at the time of the execution of the consent order.

Subsequently, mother moved, relying on the 1991 agreement, for an order providing as follows: (1) that father pay 100% of the college tuition expenses for their two sons; (2) that father pay unreimbursed medical expenses, transportation and auto insurance costs for the eldest son; and (3) that the court modify child support for both sons. Father cross-moved denying the enforceability of the 1991 agreement and seeking an equal allocation of unreimbursed college expenses and other relief.

The judge ordered father to pay the college expenses for both sons as well as their unreimbursed medical expenses. The judge set child support at $75 per week for the oldest son, who was living at school, and $247 per week for the younger son, who was living at home. The judge denied all relief requested by father in his cross-motion. The judge issued a statement of reasons noting that the separation agreement governed the dispute. This ruling was memorialized in an order dated January 24, 2005.

Father appealed from the January 24, 2005 order and we granted a stay of both the order and the plenary hearing scheduled pending appeal (No. M-11-05 (App. Div. September 16, 2005)). On the merits, father contends that the judge committed reversible error in enforcing the 1991 settlement agreement without holding a plenary hearing to determine whether the parties reconciled. We agree.

Father alleged that he moved back into the marital home after the separation agreement was effectuated and that this was a reconciliation, which would result in a rescission of the agreement. Mother alleges that no such reconciliation occurred and denies that father ever moved back into the home after the 1991 agreement was signed. This presents a clear dispute regarding the enforceability of the 1991 agreement. That factual dispute had to be addressed and resolved before the judge could rule on the motion and cross-motions presented to him.

An evidentiary hearing should have been conducted. Not every factual dispute during a matrimonial proceeding requires an evidentiary hearing. Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.), certif. denied, 142 N.J. 455 (1995). However, "trial judges cannot resolve material factual disputes upon conflicting affidavits and certifications." Id. at 47. In those cases, as here, a hearing should be conducted. Ibid.

The general rule in New Jersey is that, "reconciliation or resumption of cohabitation before a divorce abrogates the executory provisions of a separation agreement." Weiner v. Weiner, 120 N.J. Super. 36, 39 (Ch. Div. 1972); aff'd o.b., 126 N.J. Super. 155 (App. Div.), certif. denied, 65 N.J. 286 (1974). The rationale behind such a rule is to encourage the preservation of the marriage. Ibid. Thus, public policy dictates that normal cohabitation terminates future obligations of parties pursuant to a separation agreement. Ibid. Because a reconciliation has a legal significance, and the public policy is to encourage reconciliation, the courts are careful in determining what constitutes a reconciliation. Therefore, in Brazina v. Brazina, 233 N.J. Super. 145, 149 (Ch. Div. 1989), the trial court found that reconciliation did not occur "until the parties [had] successfully completed the exploratory stage of a reconciliation and [had] agreed upon a true and genuine reconciliation, that is to say, when the parties have resolved their major matrimonial differences and agree to permanently resume their former relationship as husband and wife." Ibid. The judge held that, generally, when parties live together for a significant period of time after a separation, the trier of fact may conclude that the parties have resumed their marital relationship. Id. at 150.

Therefore, we conclude that an evidentiary hearing should have been conducted by the judge to determine whether the parties reconciled and rescinded the 1991 agreement.

Given our holding, the following two contentions made by father need not be addressed: (1) that "even if the 1991 agreement is enforceable, the [judge] erred in applying the agreement and in modifying child support;" and (2) that it was on error for the judge to enforce the 1991 separation agreement, which was never incorporated into a final judgment.

Lastly, father contends that the judge failed to rule on challenges to specific bills and invoices claimed by mother for out-of-pocket medical expenses. More specifically, father contends that mother was not entitled to $1,447 for unreimbursed medical and dental expenses. Mother submitted, in her certification, that the total of unreimbursed medical expenses was $2,893.87. Father challenged the validity of many of those bills. For example, he argues that the largest of the bills, $1,590, should have been submitted to the insurance company, that one of the bills was a duplicate and that one of the bills was already paid by the insurance company, with the remainder being paid by him.

The judge did not address these challenges. The statement of reasons provides in pertinent part:

Like other aspects of the parties' agreements, the medical cost share is governed by the parties' own agreement, which states that all costs are to be borne on a 50-50 basis.

Were there no agreement, the court would require the $250 per year payment for each son but would split the remaining cost pro-rata (ca. 2/3 -1/3) basis.

. . . .

Upon presentation of invoices, [father] shall within (30) days reimburse [mother] for one half of her medical expenditures to date on behalf of the parties' sons.

However, the judge did not make any factual determinations as to the arguments put forth by father. Further, because the agreement specifically stated, "unreimbursed" medical expenses, all bills should have been submitted to the insurance company prior to the allocation of unreimbursed expenses.

Furthermore, the judge must "by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury, on every motion decided by a written order that is appealable as of right." R. 1:7-4. In addition, the judge must relate any factual findings to the relevant legal conclusions. Wertlake v. Wertlake, 137 N.J. Super. 476, 485-86 (App. Div. 1975). That was not done here.

Reversed and remanded for an evidentiary hearing on the enforceability of the 1991 agreement and the challenged medical expenses for the sons.

Reversed and remanded.

 

(continued)

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9

A-2765-04T2

May 9, 2006