D.M. VS. K.M. (FM-05-0045-09, CAPE MAY COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-3805-15T1
D.M.,
Plaintiff-Respondent,
v.
K.M.,
Defendant-Appellant.
————————————————————————————————
Submitted October 24, 2017 – Decided November 9, 2017
Before Judges Reisner and Hoffman.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Cape May
County, Docket No. FM-05-0045-09.
K.M., appellant pro se.
Hankin, Sandman, Palladino & Weintrob, PC,
attorneys for respondent (Amy R. Weintrob, on
the brief).
PER CURIAM
Defendant appeals from the February 23, 2016 Family Part
order denying reconsideration of the court's October 8, 2014 and
December 16, 2014 orders.1 The October 8, 2014 order dismissed
the remand of defendant's motion seeking college contribution from
plaintiff. The December 16, 2014 order granted plaintiff the tax
exemption for both children and terminated child support
retroactively to May 2, 2014. We affirm.
In December 2010, plaintiff and defendant divorced after
seventeen years of marriage. They have two children, a daughter
born in 1992 and a son born in 1996. The parties signed a property
settlement agreement (PSA), which the court incorporated into
their final judgment of divorce. The PSA provided the parties
would address the issue of contribution toward college expenses
at the time their children entered college, based on the factors
set forth in Newburgh v. Arrigo, 88 N.J. 529 (1982). The PSA also
1
While defendant's notice of appeal lists all three orders, only
the February 23, 2016 order denying reconsideration properly
appears before us. Defendant filed her notice of appeal and motion
for leave to appeal out of time on May 9, 2016 seeking to appeal
all three orders. Ninety-two days expired between the October 8,
2014 order and defendant's motion for reconsideration. Twenty-
three days expired between the December 16, 2014 order and
defendant's motion for reconsideration. The time for appeal tolled
while the reconsideration motion remained pending. The trial
court dismissed the reconsideration motion on February 23, 2016,
but defendant did not file her notice of appeal until May 9, 2016
— seventy-five days later. We granted defendant's leave to appeal
out of time for the February 23, 2016 order only. Thus, defendant
failed to timely appeal from the October 8, 2014 and December 16,
2014 orders. See R. 2:4-1; see also R. 2:4-3; see also R. 2:4-
4(a). Accordingly, we limit our review to the February 23, 2016
order denying reconsideration.
2 A-3805-15T1
required plaintiff to pay $100 per week in child support and
allowed each party to claim a tax exemption for one child.
Plaintiff owned several businesses during the marriage.
Defendant alleges plaintiff issued the parties' children payroll
checks from one of his businesses and deposited that money into a
college fund for the children. Defendant further alleges plaintiff
actually used the college fund containing the children's money
rather than his own money to pay the college expenses.
When the parties' daughter started college, defendant paid
the first three semesters, then filed a motion requesting
reimbursement from plaintiff and contribution for future college
expenses. The trial court dismissed this motion and defendant
appealed. On appeal, we found the trial court improperly denied
college contribution based solely on the fact that defendant
requested reimbursement after she paid the expenses. D.M. v.
K.M., No. A-3301-12 (App. Div. May 23, 2014) (slip op. at 8). We
therefore reversed and remanded to the trial court to perform a
full Newburgh analysis. Ibid.
On remand, the trial court dismissed defendant's motion after
she refused to testify at a plenary hearing scheduled to gather
evidence relating to the Newburgh factors. In addition, the trial
court ordered the termination of child support and granted
plaintiff the right to claim the tax exemptions for both children
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after plaintiff agreed to pay all college expenses for both
children.
On this appeal, defendant argues the trial court erred in
considering the children's money from the college fund as
plaintiff's contribution, and therefore erred in terminating child
support and granting plaintiff the tax exemptions for both
children.
When a trial court denies a party's motion for
reconsideration, we overturn the denial only in the event the
trial court abused its discretion. Marinelli v. Mitts & Merrill,
303 N.J. Super. 61, 77 (App. Div. 1997) (citing Cummings v. Bahr,
295 N.J. Super. 374, 389 (App. Div. 1996)). In determining whether
such an abuse has taken place, a reviewing court should be mindful
that a party should not utilize reconsideration just because of
"dissatisfaction with a decision of the [c]ourt." Capital Fin.
Co. of Delaware Valley v. Asterbadi, 398 N.J. Super. 299, 310
(App. Div.) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401
(Ch. Div. 1990)), certif. denied, 195 N.J. 521 (2008).
Courts should only grant reconsideration when "either (1) the
Court has expressed its decision based upon a palpably incorrect
or irrational basis, or (2) it is obvious that the Court either
did not consider, or failed to appreciate the significance of
probative, competent evidence." Fusco v. Bd. of Educ. of Newark,
4 A-3805-15T1
349 N.J. Super. 455, 462 (App. Div.) (quoting D'Atria, supra, 242
N.J. Super. at 401), certif. denied, 174 N.J. 544 (2002); see also
R. 4:49-2. Trial courts should grant motions for reconsideration
"only under very narrow circumstances." Ibid.
The trial court dismissed the motion for reconsideration
because defendant filed the motion at least one day late, even
accepting defendant's contention that she did not receive the
underlying orders until December 18, 2014. The court also noted
defendant failed to identify any information that the court failed
to consider in its original decision.
We agree with the trial court's conclusion that defendant
filed her motion for reconsideration late. See R. 4:49-2. In
addition, even if the trial court had decided the motion on the
merits, we conclude the ultimate outcome would have been the same,
as defendant failed to present any valid basis for the trial court
to grant reconsideration in her favor.
Before us, defendant argues the trial court "made an egregious
error . . . by ruling the payroll [checks] issued to the parties'
daughter belonged to the [p]laintiff." Defendant alleges
plaintiff deposited the children's payroll checks into a college
fund in his name, and therefore the college fund belongs to the
children rather than plaintiff. However, the record indicates the
5 A-3805-15T1
parties settled this issue as part of the PSA, which distributed
the college fund to plaintiff.
The trial court denies taking any position on the payroll
checks issued to the children during a September 30, 2014 hearing.
The trial court scheduled the September 30, 2014 hearing to allow
the parties to present evidence regarding their respective
contributions, the children's contributions, and the other
Newburgh factors. However, when defendant refused to testify at
that hearing, she deprived the court of the ability to garner the
evidence necessary to determine the Newburgh factors, and then
address the issue of contribution for college expenses. As a
result, the trial court dismissed defendant's motion.
Defendant further argues the trial court based its decision
to terminate child support and grant plaintiff the tax exemptions
for both children on the determination that the college fund
belonged to plaintiff. However, we note the trial court's December
16, 2014 order terminating child support and granting plaintiff
the tax exemptions for both children explicitly references
plaintiff's agreement to pay the remainder of his daughter's
college expenses.
Plaintiff argues the PSA distributed the college fund to him,
therefore the parties decided the issue of who owned the college
fund in 2010 when the parties divorced. We agree. While the PSA
6 A-3805-15T1
does not specifically address the college fund by name, it does
state that each party shall "retain his or her own personal bank
accounts . . . as their respective separate property." It also
states any asset not specifically set forth in the agreement shall
remain the property of that party.
Defendant asserts the college fund was not a marital asset
that could have been distributed in the PSA. However, defendant
identifies account 33-xxxxxx-7 as the college fund, and an
equitable distribution summary she provided includes that account
number. The summary states each party was entitled to half of the
$42,230 in account 33-xxxxxx-7, and distributed the entire account
to plaintiff. The record clearly demonstrates the parties
previously decided the issue of ownership of the college fund as
part of their divorce seven years ago.
In addition, defendant argues the trial court failed to
consider the tax issues regarding the children's college fund and
payroll checks. However, in addressing the motion for
reconsideration, the trial judge specifically instructed plaintiff
to submit evidence that defendant knew of the tax issues prior to
the September 30, 2014 hearing and allowed defendant to respond.
After reviewing these submissions, the judge determined this was
not a new issue as the court previously considered it; therefore,
reconsideration was inappropriate on this basis.
7 A-3805-15T1
Defendant failed to show the trial court committed an
egregious error or that the trial court failed to consider material
evidence. We conclude the trial court did not abuse its discretion
in denying reconsideration.
Affirm.
8 A-3805-15T1