NOT FOR PUBLICATION WITHOUT THE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-3417-19
DONNA BOSKO, f/k/a
DONNA ROMANELLI,
Plaintiff-Respondent,
v.
MICHAEL ROMANELLI,
Defendant-Appellant.
________________________
Argued June 21, 2021 – Decided June 30, 2021
Before Judges Fisher and Fasciale.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County,
Docket No. FM-18-0167-18.
Franklin G. Whittlesey argued the cause for appellant
(Scholl & Whittlesey, LLC, attorneys; Franklin G.
Whittlesey, on the briefs).
Theodore Sliwinski argued the cause for respondent.
PER CURIAM
The parties were married in 1992. Their marriage produced two children,
born in 1997 and 2000. A final judgment of divorce, which incorporated a
property settlement agreement (PSA), was entered in 2018.
During the marriage, defendant Michael Romanelli worked in the auto
body field. While the divorce action was pending, he sustained an injury that
prevented him from continuing to work. This caused the trial court to adjust the
pendente lite support Michael was paying plaintiff Donna Bosko to reflect
Michael's disability income. The status quo remained unchanged when the
parties entered into their PSA, which acknowledged Michael was "currently
receiving temporary disability in the amount of $840 per week." Based on that
circumstance, the parties agreed Michael would pay Donna $89 per week in open
durational alimony and $156 per week in child support. The PSA also required
Michael to advise Donna "immediately upon the termination of his temporary
disability benefits" and declared that "the health and employability of each party
shall be reviewed at such time."
When Michael's disability benefits ceased in June 2019, he moved for a
modification of his support obligation. The judge, however, denied relief and
directed the parties into mediation under the PSA. The mediation did not
produce a settlement, so Michael again moved for a modification of his support
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2
obligations. He based that motion on the termination of the disability benefits
and his inability to return to work in his chosen field or to find a job that would
generate the level of income he previously enjoyed.
The judge denied Michael's motion for reasons set forth in a written
decision, and Michael appeals, arguing:
I. THE TRIAL JUDGE'S DECISION TO DENY
[MICHAEL] A REVIEW OF HIS SUPPORT
IGNORED THE CLEAR LANGUAGE OF THE [PSA]
AND IS NOT BASED UPON SOUND REASONING
AND SHOULD BE REVERSED.
II. THE TRIAL JUDGE'S DECISION TO DENY
[MICHAEL] A REVIEW OF HIS SUPPORT
IGNORED THE EVIDENCE WHICH WAS
SUFFICIENT TO ESTABLISH A PRIMA FACIE
CASE OF CHANGED CIRCUMSTANCES.
III. THE TRIAL JUDGE'S DECISION TO DENY
[MICHAEL'S] REQUEST FOR PROOF OF HIS
DAUGHTER'S CONTINUING COLLEGE ENROLL-
MENT AND STATUS WAS A VIOLATION OF HIS
RIGHTS.
IV. THE TRIAL JUDGE'S DECISION TO DENY
[MICHAEL'S] REQUEST FOR ORAL ARGUMENT
WAS AN ABUSE OF DISCRETION AND YET
ANOTHER VIOLATION OF [HIS] RIGHTS.
V. THE TRIAL JUDGE'S DECISION TO DENY
[MICHAEL'S] REQUEST FOR COUNSEL FEES
AND COSTS WAS AN ABUSE OF DISCRETION
AND YET ANOTHER VIOLATION OF [HIS]
RIGHTS.
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VI. THE TRIAL JUDGE EXPRESSED BIAS AND A
LACK OF REGARD FOR THE RIGHTS OF
[MICHAEL], TO THE DEGREE THAT [HE] IS
ENTITLED TO [A] REMAND TO ANOTHER
JUDGE.
We agree with the argument posed in Michael's first point.
The judge denied Michael's motion because the PSA established the
parties were aware of Michael's injury when they divorced. That is certainly
true but it did not foreclose his right to a hearing. The PSA clearly states that
when the disability benefits terminated, the parties would have their financial
situation "reviewed." Indeed, the cessation of the disability benefits constitutes
a substantial change in circumstances and warranted an evidentiary hearing.
The approach taken by the parties in their PSA was sensible. Rather than
litigate what the parties were capable of earning and have the court base an
award on such assumptions, the parties chose to live with the temporary situation
and leave a more permanent solution for a later time when the temporary
situation changed. There is no other plausible interpretation of the PSA. Once
the disability income ended, Michael was entitled to an evidentiary hearing to
explore the proper level of support based on the parties' actual incomes or,
should there be a contention that one or both is unemployed or under-employed,
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to consider an award based on their ability to earn. The judge erred by denying
Michael an evidentiary hearing.
In light of our disposition of Michael's first point, we need say little more
about the other raised issues. Michael's second point is mooted by our ruling on
the first. We find no merit in his third argument about emancipation, but we
agree Donna is obligated to keep Michael informed of the child's continuing
education so he will have sufficient information from which to determine
whether the child is or has become emancipated. We also agree, as Michael
argues in his fourth point, that his attorney should have been permitted oral
argument on the motion, but our disposition of this appeal renders moot the need
for any relief in that regard. Michael complains in his fifth point that he was
erroneously denied counsel fees; in light of our disposition, whether or to what
extent either party may be allowed counsel fees should abide the results of the
evidentiary hearing for which we remand. We lastly find insufficient merit in
Michael's sixth point to warrant further discussion in a written opinion. R. 2:11-
3(e)(1)(E).
In short, we reverse the April 4, 2020 order and remand for an evidentiary
hearing in conformity with this opinion. We do not retain jurisdiction.
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