KAREN L. MINA v. ROBERT MINA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2775-05T12775-05T1

KAREN L. MINA,

Plaintiff-Respondent,

v.

ROBERT MINA,

Defendant-Appellant.

_________________________________________________

 

Submitted September 5, 2006 - Decided October 11, 2006

Before Judges Payne and Gilroy.

On appeal from Superior Court of New

Jersey, Chancery Division-Family Part,

Bergen County, FM-29646-92.

Robert Mina, appellant, filed a pro se

brief.

Giblin & Giblin attorneys for respondent

(Paul J. Giblin, Jr., on the brief).

PER CURIAM

Defendant Robert Mina, the divorced husband of plaintiff Karen Mina, appeals from an order of the Family Part entered on December 19, 2005 denying reconsideration of a prior order of October 7, 2005 requiring him, (1) within 180 days, to reimburse plaintiff $6,667.50 in expenditures incurred by her in payment of the first-year college tuition of the couple's daughter Rachael; (2) to take a college loan or pay fifty percent of Rachael's future tuition costs on or before August 1st of the year in which the costs were to be incurred; and (3) to pay plaintiff's counsel fees and costs in the amount of $1,200.

In his motion for reconsideration, defendant claimed that he was not provided with notice of the application that resulted in the court's October 7 order.

In a pro se brief in support of his appeal, defendant addresses only the merits of the October 7 order. He acknowledges that the property settlement agreement incorporated into the parties' judgment of divorce of March 4, 1993 provided: "Parties shall be responsible for the college educations in accordance with their respective financial circumstances at the time." However, he argues that he was not consulted on decisions whether and where to attend college; less expensive, suitable local educational institutions exist; he is unable to afford the one-half share of tuition costs required by the court's order, especially in light of his change in employment from a package car driver for United Parcel Service to that of a self-employed painting contractor; and his child support obligation of $350 per week should be reduced in light of Rachael's residence away from home or utilized for tuition payments.

In opposition to the appeal, plaintiff argues that defendant failed to show that enforcement of the court's October order for payment would be unjust, oppressive or inequitable or that the trial court abused its discretion in enforcing the basic terms of the property settlement agreement executed by the parties. In support of this position, plaintiff relies upon the certification, submitted by her in connection with her October motion, in which she stated that defendant had refused to contribute toward the payment of Rachael's tuition; that defendant had been advised that his refusal would engender a motion; that she was unable to bear the entire cost herself and requested that defendant pay a fifty percent share; and that after deduction of all available financial aid, Rachael's first-year tuition costs were $13,335.00.

The record reflects that at the time of their divorce, plaintiff and defendant had two children, including Rachael, who was to enter first grade in September 1993. By order entered on November 10, 2004, defendant's child support obligations for the children were increased to $350 per week, effective November 5, 2004. Thereafter, plaintiff filed an application for an order requiring defendant to pay fifty percent of Rachael's college tuition, which was denied in an order dated June 24, 2005 pending exchange of case information statements and tax returns, which exchange was to occur within twenty days. The order further provided: "[I]f parties fail to agree to allocation of college costs and child support upon exchange either party is free to make a motion." A motion was subsequently filed by plaintiff and, when defendant failed to respond, plaintiff's motion was granted as unopposed on October 7, 2005.

By failing to appear in connection with the October 7, 2005 motion and to raise the issues presented to us on appeal, defendant has waived his right to contest the content of the court's October 7, 2005 order, the substance of which was properly supported by plaintiff's certification. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We lack both argument and a sufficient record to consider any claim by defendant of lack of notice, presented to the trial court in his motion for reconsideration, but not to us on appeal. Cf. Cipala v. Lincoln Tech. Institute, 179 N.J. 45, 55 (2004); State v. Hild, 148 N.J. Super. 294, 296 (App. Div 1977).

The court's October 7, 2005 order is therefore affirmed.

 

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4

A-2775-05T1

October 11, 2006