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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5865-06T35865-06T3 LYLE A. KENDALL f/k/a LYLE A. MOLINARI, Plaintiff-Respondent, v. PHILIP L. MOLINARI, Defendant-Appellant. _________________________________

Submitted July 1, 2008 - Decided Before Judges Skillman and Winkelstein. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-517-97A. Atkinson & DeBartolo, attorneys for appellant (John F. DeBartolo, on the brief). Chamlin, Rosen, Uliano & Witherington, attorneys for respondent (Matthew A. Smuro, on the brief). PER CURIAM This is an appeal from post-judgment orders in a matrimonial action, which granted plaintiff's motion for enforcement of litigant's rights and denied defendant's motion to vacate his support arrearage and declare his son emancipated. The parties were divorced in 1997. Under the property settlement agreement incorporated in the judgment of divorce, defendant agreed to pay plaintiff $77,000 per year in alimony, payable in $3,208.33 bi-monthly
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installments, for a term of ten years beginning on March 1, 1997. He also agreed to pay her $18,000 per year for child support, payable in $750 bi-monthly installments. Defendant's income decreased between 1997, when the property settlement agreement was executed, and 2002. As a result, in August 2002 plaintiff voluntarily agreed to accept a reduction in alimony from $77,000 to $54,000 for the remainder of the ten-year term. In 2005 and 2006, defendant fell substantially into arrears in the payment of his support obligations. Consequently, in January 2007, plaintiff filed a motion for enforcement of litigant's rights. Defendant responded by filing a crossmotion in March 2007 to vacate all alimony arrearages and to terminate his child support obligation on the ground that the parties' son was emancipated. By the time this motion was filed, the ten-year term during which defendant was obligated to pay plaintiff alimony had expired, and the parties' son was about to graduate college, which the parties agree resulted in his emancipation. After hearing argument by counsel, the trial court granted plaintiff's motion for enforcement of defendant's obligations for the payment of alimony and child support and denied defendant's cross-motion to vacate his support arrearages and to declare the parties' son emancipated before his graduation from college. The court found that defendant's arrearages were $13,350 for child support and $110,750.62 for alimony and entered judgment against him for the combined amount of $124,100.62. However, the court declined to enforce defendant's obligation to pay one-half the cost of his son's expenses for the last three semesters of college, which totaled $34,022.18. Defendant had undertaken this obligation in accordance with the parties' property settlement agreement at the time his son was admitted to college but had stopped paying his one-half share after the son's fifth semester of college. As a result, this obligation was assumed by plaintiff's father. The trial court deferred determination of a payment schedule for discharge of defendant's support obligations, allowing the parties thirty days to reach agreement. After the parties failed to reach agreement, they both submitted proposed payment schedules to the court for resolution of the issue. On May 31, 2007, the court entered an order requiring defendant to satisfy the judgment for arrearages, which by then totaled $129,350.62, by the payment of $2,694.80 per month. Even though defendant had submitted a proposed payment schedule, the order stated that "defendant did not submit any payment schedule." As a result, defendant resubmitted the proposed payment schedule and requested the court to reconsider the May 31, 2007 order. By letter dated July 3, 2007, the court declined to reconsider the May 31, 2007 order. The court made no findings regarding the payment schedule. On appeal, defendant presents the following arguments:
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DEFENDANT HUSBAND HAS ESTABLISHED A PRIMA FACIE CASE OF CHANGED CIRCUMSTANCES AND IS ENTITLED TO A PLENARY HEARING ON HIS ABILITY TO HAVE PAID THE LIMITED DURATION ALIMONY AND CHILD SUPPORT BEFORE THE ENTRY OF A JUDGMENT AND PAYMENT SCHEDULE. A. The trial court mistakenly denied the husband the opportunity to seek vacation of arrears and reducing his obligation of support by applying to him an erroneous standard not required by the limited duration alimony statute and to which he did not agree. B. The trial court erred in entering judgment against the husband without taking testimony and examining evidence to determine whether or not the wife waived her right to receive alimony by her actions and inactions. C. The trial court erred in entering judgment against the husband in not giving to him credit for direct payments by him to the child and for his payment of college expenses. D. The trial court erred in fixing a payment schedule without consideration of the position advanced by the husband or, in the alternative, in not considering the husband's ability to pay. We reject the arguments presented under subparts (A), (B) and (C) of defendant's brief and affirm the March 19, 2007 order substantially for the reasons set forth in the trial court's March 19, 2007 oral opinion. We add the following supplemental comments. Although the parties' property settlement agreement authorized defendant to seek a modification of his child support obligation when his son began college, defendant did not seek such relief until March 2007, just two months before the son's graduation from college in May 2007. Moreover, even though the trial court denied defendant's application for relief from his basic child support obligation, the court declined to enforce the obligation defendant had undertaken for payment of one-half the costs of his son's college education, as applied to the son's last three semesters of college, which totaled $34,022.18. Thus, the court provided defendant with some relief from his child support obligations. Regarding alimony, plaintiff voluntarily agreed in 2002 to a reduction in defendant's obligation from $77,000 to $54,000 per year. During the five-year period from this consensual reduction in defendant's alimony obligation to the termination of the ten-year period of this obligation in early 2007, defendant had the following income: 2002 $169,531.00 2003 $345,115.00 2004 $261,136.00 2005 $ 94,000.00 2006 $100,550.00

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Thus, defendant's average annual income of $194,066.40 during this five-year period was approximately 38% less than his annual income of $312,000 at the time of the divorce, which is reasonably close to the approximate 30% reduction in alimony to which plaintiff agreed in 2002. Therefore, even though there was a change in defendant's financial circumstances after the divorce, the trial court did not abuse its discretion in concluding that this change was fairly reflected by the parties' 2002 consensual modification of defendant's alimony obligation. Although we affirm the March 19, 2007 order entering judgment against defendant for $124,100.62, we vacate the May 31, 2007 order requiring defendant to discharge this obligation by the payment of $2,694.80 per month. That order erroneously stated the "defendant did not submit any payment schedule[,]" thus indicating that the trial court had not considered defendant's submission regarding the payment schedule. Moreover, when defendant requested reconsideration on that basis, the court summarily rejected the request, without addressing defendant's objections to the payment schedule. We note in this regard that although defendant enjoyed fairly high income in 2003 and 2004, his income decreased substantially in 2005 and 2006 and he apparently anticipated a further decrease in 2007. In addition, defendant allegedly had substantial other financial obligations in addition to his support obligations to plaintiff. We also note that, even though the payment schedule proposed by defendant was unreasonably low, the trial court was not required simply to choose between the proposals submitted by the parties in establishing an appropriate payment schedule. Therefore, the case must be remanded for reconsideration of an appropriate payment schedule. If there are any factual disputes relevant to the schedule, a hearing may be required. Accordingly, we affirm the March 19, 2007 order. We vacate the May 31, 2007 order and remand for further proceedings in conformity with this opinion. Jurisdiction is not retained. (continued) (continued) 7 A-5865-06T3 July 21, 2008 0x01 graphic

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