RICHARD FORMICOLA v. ARLEEN KEARNS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

RICHARD FORMICOLA,

Plaintiff-Appellant,

v.

ARLEEN KEARNS (f/k/a

ARLEEN FORMICOLA),

Defendant-Respondent.

__________________________________________________________

October 1, 2013

Submitted May 28, 2013 Decided

Before Judges Graves and Guadagno.

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).

PER CURIAM

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 "refusal to have any contact with [him] since [she] was sixteen years old"; (6) require that defendant pay his counsel fees and costs; and (7) to schedule a plenary hearing.

Following oral argument on February 2, 2012, the court entered an order for mediation pursuant to Rule 5:5-6. Based on the parties' submissions, which showed plaintiff was earning $134,718 and defendant was earning $55,000, the court ordered plaintiff to pay seventy percent of the mediation costs and defendant to pay thirty percent.

In a letter to the court dated April 3, 2012, defendant's attorney stated "the parties and counsel attended mediation and negotiated a [possible] settlement." However, when defendant's attorney conducted a title search, she learned there were two undisclosed federal tax liens "in favor of the United States on all property and rights to property" belonging to plaintiff in the total amount of $108,557.30 together with "additional penalties, interests and costs that may accrue." According to defendant's attorney, the undisclosed tax liens violated the PSA, jeopardized the sale of the former marital home, and nullified plaintiff's promise to "pay all of his obligations after the sale of the marital home."

The parties returned to court for oral argument on June 27, 2012. After considering the parties' submissions and the arguments of counsel, the court ordered the parties to share their children's college costs, including Jennifer's prior college costs in the amount of $99,316.77, in proportion to their respective incomes, with plaintiff paying sixty-three percent and defendant paying thirty-seven percent. The court also ordered plaintiff to pay sixty-three percent of Jennifer's past college costs, less a $7000 credit, for a total of $55,569.56. In addition, the court concluded plaintiff failed to pay defendant one-third of his net annual bonuses for various years from 2007 through 2011, and plaintiff was ordered to pay defendant the sum of $8,159.51. Plaintiff was also ordered to satisfy "any judgments or liens against him that encumber the former marital home"; to contribute fifty-percent of the cost to repair the front steps of the home; and to pay counsel fees in the amount of $10,000.

With regard to plaintiff's cross-motion, the court reduced his child support payment to $268.21 per week based on the parties' current incomes, the fact that Jennifer was "away at school for nine months," and plaintiff had "a third child to support." However, "plaintiff's request to perform any necessary repairs to the marital residence" was denied; the court rejected plaintiff's alienation arguments; and the court concluded there was no need for a plenary hearing to allocate college costs because the PSA "provided [the] mechanism for apportioning college costs."

Plaintiff presents four arguments on appeal: (1) the trial court abused its discretion in granting relief "without any analysis of the facts or controlling case law"; (2) the court erred in allocating college expenses because it failed to consider the factors set forth in Newburgh v. Arrigo, 88 N.J. 529 (1982); (3) the award of counsel fees to defendant "must be reversed"; and (4) the "failure to order a plenary hearing is reversible error." We have concluded these arguments are clearly without merit, Rule 2:11-3(e)(1)(E), and require only the following comments.

Our review of a trial court's fact findings is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12. Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. "Reversal is warranted only when a mistake must have been made because the trial court's factual findings are 'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Reese v. Weis, 430 N.J. Super. 552, 567 (2013) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

In this case, the trial court carefully considered the "voluminous submissions from the parties," and the court's findings and conclusions are generally supported by sufficient credible evidence. We therefore affirm, with two modifications.

It is clear the PSA requires plaintiff to pay one-third of his net annual bonus to defendant as child support, and the trial court correctly concluded that defendant was "short-changed" because plaintiff failed to provide her with documentary proof of the bonuses he actually received. Defendant concedes, however, that plaintiff "produced official and unredacted documentation of his income and bonuses" in response to her motion, and those records confirm that plaintiff's bonus was $6600 in 2010 and $2600 in 2011. Plaintiff was therefore required to pay one-third of his net bonuses the amount he received after taxes to defendant. However, the additional amount that plaintiff was ordered to pay ($1,568.78 for 2010 and $270 for 2011) was based on the total amount of his bonuses rather than the net amount after taxes. Accordingly, the part of the June 27, 2012 order that requires plaintiff to pay defendant "$8,159.51 in connection with the bonuses he received from 2007 through 2011" is reversed, and the matter is remanded to the trial court for additional findings and conclusions.

In addition, the court determined that plaintiff should pay $55,569.56 as his share of Jennifer's past college costs based on the information defendant provided in paragraph eleven of the certification she filed in support of her motion. In her appellate brief, however, defendant states that even though "plaintiff did not raise the issue below," she "will stipulate" that "a total of $6500 could properly be deducted from the total college costs." Thus, the June 27, 2012 order must be modified to reflect that plaintiff's contribution is reduced from $55,569.56 to $51,474.56 (($99,316.77 - $6500) x 63% - $7000 = $51,474.56).