DARIA FANELLI VS. KENNETH HNATOWSKI (FM-20-0043-05, UNION COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3352-16T1
DARIA FANELLI,
f/k/a HNATOWSKI,
Plaintiff-Respondent,
v.
KENNETH HNATOWSKI,
Defendant-Appellant.
_____________________________
Submitted May 7, 2018 – Decided August 17, 2018
Before Judges Accurso and O'Connor.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Union
County, Docket No. FM-20-0043-05.
Wolkstein, Von Ellen & Brown, LLC, attorneys
for appellant (Jamie K. Von Ellen, of
counsel; Marisa Lepore Hovanec and Stephanie
R. Carney, on the briefs).
Ruvolo Law Group, LLC, attorneys for
respondent (Melissa M. Ruvolo, of counsel;
Ruth Kim, on the brief).
PER CURIAM
Plaintiff Daria Fanelli and defendant Kenneth Hnatowski are
the parents of two children, presently fifteen and sixteen years
of age. The parties divorced in 2005 and plaintiff has been the
primary caretaker since. According to the parties' property
settlement agreement (PSA), which they entered before the oldest
child started elementary school, the parties agreed to "equally
(50/50) divide . . . school cost[s] after consultation with the
other. College will abide the event." Both children have
attended private parochial school since kindergarten.
Plaintiff paid the children's school tuition without
contribution from defendant through the fall of 2016, when she
filed a motion seeking, among other things, an order compelling
defendant to commence contributing toward the children's private
school tuition costs in proportion to the parties' respective
incomes or, in the alternative, that he pay fifty percent of the
children's tuition "in accordance with . . . the parties'
Property Settlement Agreement."
Defendant opposed the motion, contending the term "school
cost[s]" in the PSA does not include the cost of private school
tuition, and that plaintiff neither obtained his consent nor
consulted with him before enrolling the children in private
school. Defendant also filed a cross-motion seeking, among
other things, an order permitting him to claim both children as
an exemption for tax year 2016.
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On March 1, 2017, the court entered an order directing that
defendant pay fifty percent of the children's private school
tuition, effective December 31, 2016, and permitting him to
claim both children as exemptions for tax year 2016. Two days
later, the court entered an amended order on March 3, 2017
denying defendant the latter relief. Defendant challenges these
two orders.1 We affirm.
On appeal, defendant contends there are questions of fact
requiring a plenary hearing on whether the term "school cost[s]"
includes tuition, and whether plaintiff consulted with him
before enrolling the children in private school. Defendant
notes that even if the term "school cost[s]" includes tuition,
plaintiff is equitably estopped from seeking defendant's
contribution toward this expense because she failed to do so for
nine years.
1
In fact defendant's notice of appeal states he is appealing
from the March 1, 2017 order and does not mention the March 3,
2017 order. However, defendant clearly intended to appeal from
the March 3, 2017 order as well, which amended the March 1, 2017
order. Further, both parties briefed the one issue arising out
of the March 3, 2017 order, which obviously is closely
intertwined with – and in fact amends – the March 1, 2017 order.
Under these unique circumstances, although not referenced in
defendant's notice of appeal, we consider defendant's challenge
to the March 3 in addition to the March 1, 2017 order.
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Defendant further contends that, if the doctrine of
equitable estoppel is unavailing to him and the term "school
cost[s]" does not include private school tuition, the trial
court is obligated to consider the factors in Hoefers v. Jones,
288 N.J. Super. 590, 611-12 (Ch. Div. 1994), aff'd, 288 N.J.
Super. 478 (App. Div. 1996), to determine if he is required to
contribute to the children's tuition for private school.2
Finally, defendant argues the court erred when it denied his
request he be permitted to claim the children as exemptions for
tax year 2016.
2
These factors are: (1) the ability of the secondary caretaker
to pay; (2) the past attendance of one or both parents at that
or a similar private school; (3) whether the child was attending
private school pre or post divorce; (4) the prior agreement of
the secondary caretaker to pay for private school; (5) the
religious background of the parties and the child; (6) whether
the special educational, psychological or special needs of child
are met by the private school; (7) whether it is in the child's
best interest to attend, or to continue to attend, private
school; (8) whether a court order or an agreement of the parties
grants the right of school choice upon the primary caretaker;
(9) whether the action of the primary caretaker to enroll the
child was reasonable under the circumstances; (10) whether
private school tuition is permitted or authorized under the law;
(11) the child's ability to respond and prosper from such an
educational experience; (12) the secondary caretaker's
involvement in the child's education; (13) the degree of the
primary caretaker's involvement in the child's education; and
(14) whether the primary caretaker's views and desires are
consistent with past practices regarding private school
education. Hoefers, 288 N.J. Super. at 611-12 (first citing
Dempsey v. Stevens, 611 So. 2d 815 (La. Ct. App. 1992); then
citing Margolin v. Margolin, 796 S.W.2d 38 (Mo. Ct. App. 1990);
and then citing In re Marriage of Alexander, 173 Ill. Dec. 456,
596 N.E.2d 1335 (1992)).
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On the tuition issue, the trial court determined the term
"school cost[s]" is clear and unambiguous and thus includes the
cost of private school tuition. The court stated:
Giving deference to the plain meaning of the
parties' PSA, the court finds that the PSA
is not ambiguous as "school costs" strictly
construed means exactly that: the costs
associated with school[,] meaning all school
costs for the children including school
tuition.
To buttress its conclusion, the court referenced other
parts of the PSA it regarded as supportive of its determination
that the term "school cost" includes tuition. We deem it
unnecessary to recite these additional findings because the
language under review is clear. Although free to do so,
nonetheless, the trial court was not required to look to other
provisions in the agreement to fortify its finding on this
point.
"Settlement of disputes, including matrimonial disputes, is
encouraged and highly valued in our system." Quinn v. Quinn,
225 N.J. 34, 44 (2016). "Therefore, 'fair and definitive
arrangements arrived at by mutual consent should not be
unnecessarily or lightly disturbed.'" Id. at 44-45 (quoting
Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999)). "An
agreement that resolves a matrimonial dispute is no less a
contract than an agreement to resolve a business dispute" and
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"is governed by basic contract principles." Quinn, 225 N.J. at
45.
A court should not "rewrite or revise an agreement when the
intent of the parties is clear." Ibid. "Thus, when the intent
of the parties is plain and the language is clear and
unambiguous, a court must enforce the agreement as written,
unless doing so would lead to an absurd result." Ibid. Whether
a contract term is clear or ambiguous is a question of law.
Nester v. O'Donnell, 301 N.J. Super. 198, 210 (App. Div. 1997).
Here, for the reasons expressed by the trial court, we find
no reason to disturb its determination that the term "school
cost[s]" includes tuition. The term is unambiguous and there is
no indication in the PSA the parties intended the word "cost" to
be limited to only certain, unexpressed expenses that do not
include tuition. Because the language is clear and unequivocal,
the court must enforce the agreement as written. See ibid.
On the question of whether plaintiff consulted with
defendant before enrolling the children in private school, the
trial court determined defendant's failure to object to the
children's attendance in private school over nine years operated
as implicit consent. If defendant consented, then plaintiff's
failure to have consulted with him is inconsequential.
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In our view, the question whether plaintiff consulted with
or obtained defendant's consent before enrolling the children in
private school over the nine years before she filed her motion
is irrelevant. In her motion plaintiff did not request that
defendant reimburse her for the tuition she previously paid on
the children's behalf. She requested that defendant contribute
toward tuition going forward and, significantly, in his cross-
motion, defendant did not seek an order compelling the children
to attend public school.
Finally, we have no quarrel with the court's decision to
deny defendant his request to claim both children as an
exemption on his 2016 income tax return. The PSA stated both
parties were each permitted to claim one child as an exemption
in the event plaintiff earns over $20,000 per year. It is not
disputed plaintiff has been earning over $20,000 and each party
has been claiming one child as an exemption for many years, but
for 2015, when defendant permitted plaintiff to take an
exemption for both children.
To the extent we have not explicitly addressed an argument
advanced by defendant, it is because it was without sufficient
merit to warrant discussion in a written opinion. See R. 2:11-
3(e)(1)(E).
Affirmed.
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