CECILY C. MARANGOS v. VASSOS S. MARANGOS

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2625-07T12625-07T1

CECILY C. MARANGOS,

Plaintiff-Appellant,

v.

VASSOS S. MARANGOS,

Defendant-Respondent.

_______________________________________

 

Argued April 28, 2009 - Decided

Before Judges Wefing and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1202-04.

Carrie A. Lumi argued the cause for appellant (Lomurro, Davison, Eastman & Munoz, P.A., attorneys; Stephen C. Carton, of counsel; Ms. Lumi, on the brief).

Vassos S. Marangos, respondent, argued the cause pro se.

PER CURIAM

Plaintiff Cecily C. Marangos, who is also known as C. Catherine Swett, appeals from an order entered by the trial court on December 19, 2007, which denied in part her cross-motion for post-judgment relief. For the reasons that follow, we affirm.

The parties were married on August 11, 1985. Four children were born of the marriage. Plaintiff filed a complaint for divorce on February 6, 2004, and on July 6, 2005, the parties placed a settlement on the record. They agreed upon custody of the children, visitation, equitable distribution, alimony, child support, payment of pendente lite arrearages, college expenses, and the allocation of certain debts. The parties also agreed that the court could decide certain outstanding issues. The court thereafter resolved the remaining issues and on August 29, 2005, entered a final judgment of divorce.

On November 10, 2005, plaintiff filed a motion to set aside the judgment, arguing that the court had not considered her objections to the proposed judgment. Defendant filed a cross-motion to set aside the judgment. The trial court resolved the disagreements regarding the judgment and on January 17, 2006, entered an amended final judgment of divorce. Defendant appealed from the judgment. We affirmed. Marangos v. Marangos, No. A-3225-05 (App. Div. Dec. 6, 2006).

In October 2007, defendant filed a motion for a modification of his alimony and child support obligations based upon alleged changed circumstances. In November 2007, plaintiff filed a cross-motion in which she sought an order: (1) directing defendant to comply with a provision of the judgment that requires defendant to schedule sessions with a court-appointed evaluator "to corroborate his prescription regime and its effect, if any, on his parenting time," suspending his parenting time with the children should he fail to comply, and directing that the evaluator's report be provided to both parties so that any issues concerning parenting time could be presented to the court; (2) directing defendant to pay forty percent of the day care expenses for the children and entering judgment against defendant in the amount of $4,816; (3) directing defendant to pay his proportionate share of the college expenses for S.M., one of the parties' children; (4) directing defendant to reimburse plaintiff for one-half of the school expenses for the parties' children, and entering judgment against defendant for $1,347.09; (5) requiring defendant to provide documentation concerning certain patents and trademarks and any income earned therefrom; (6) directing defendant to pay his share of the uncovered medical expenses for the children and entering judgment against defendant in the amount of $394.88; (7) directing defendant to produce a signed and notarized authorization letter for the children's health insurance benefits; (8) directing compliance by defendant with his life insurance obligations under the judgment; (9) directing defendant to contribute to certain private school education costs of the children; (10) directing defendant to pay plaintiff's counsel fees and costs associated with the motions, and entering judgment against defendant for that amount; and (11) entering certain civil restraints against defendant.

The trial court considered the motions on December 19, 2007, and placed its decision on the record on that date. The court denied defendant's motion for modification of his alimony and child support obligations. The court also found that plaintiff's cross-motion was procedurally improper because it did not relate back to the subject matter of defendant's motion. The court stated that, "[plaintiff had] seized upon [defendant's] motion as a platform to reargue many of the issues that had previously been decided adverse to her without even a reference to these prior rulings."

The court nevertheless considered plaintiff's application to compel defendant to pay S.M.'s college expenses. The court observed that defendant's continued failure to contribute to those costs could jeopardize S.M.'s enrollment at the school. The court found that, pursuant to the final judgment, defendant was responsible for seventy-six percent of S.M.'s college costs, while plaintiff was responsible for the balance. The court also commented upon and appears to have ruled on certain other relief sought in plaintiff's cross-motion.

The court denied the parties' motions for counsel fees. The court found that defendant's motion was frivolous. The court further found that plaintiff's cross-motion "also [was] deficient" because it raised "issues previously decided without even referencing the prior adverse decisions [of the court], and to that extent is brought in bad faith." The court stated that plaintiff had only prevailed on her application to compel defendant to contribute to S.M.'s college expenses and plaintiff "has not prevailed on her numerous prayers for relief."

The court entered an order dated December 19, 2007: (1) denying defendant's motion to modify his alimony and child support obligation; (2) directing defendant to pay seventy-six percent of S.M.'s college costs, after application of all scholarships, grants, loans and work study monies received; and (3) denying the remainder of plaintiff's cross-motion without prejudice. Defendant filed a notice of appeal on January 31, 2008, and thereafter plaintiff filed her cross-appeal. Defendant subsequently withdrew his appeal.

Plaintiff argues that the trial court erred by summarily denying most of the relief sought in her cross-motion because the subject matter of that cross-motion did not relate to the subject matter of defendant's motion. We disagree.

Rule 1:6-3 pertains to the filing and service of motions and cross-motions. The rule provides in pertinent part that:

[a] cross-motion may be filed and served by the responding party together with that party's opposition to the motion and noticed for the same return date only if it relates to the subject matter of the original motion. Other than in Family Part motions brought under Part V of these Rules, a cross-motion relating to the subject matter of the original motion shall, if timely filed pursuant to this rule, relate back to the date of the filing of the original motion.

[R. 1:6-3(b) (emphasis added).]

The rule thus makes clear that a cross-motion must "relate[] to the subject matter of the original motion." Ibid. Plaintiff argues, however, that the next sentence of the rule indicates that cross-motions in Family Part matters need not "relate[] to the subject matter" of the original motion. Plaintiff's argument is without merit. That part of the rule states that, with the exception of motions in the Family Part, cross-motions do not "relate back to the date of the filing of the original motion." Ibid. (emphasis added). It is clear, therefore, that Rule 1:6-3(b) requires that the subject matter of all cross-motions relate back to the subject matter of the original motion.

As stated previously, defendant's motion sought a modification of his child support and alimony obligations. Plaintiff's cross-motion was not addressed to child support or alimony but raised numerous issues regarding other provisions of the final judgment. The trial court correctly found that plaintiff's cross-motion did not comply with Rule 1:6-3(b) because it did not "relate[] to the subject matter" of defendant's motion. Accordingly, the trial court did not abuse its discretion by declining to consider plaintiff's demands for relief, with the exception of plaintiff's application to compel defendant to pay his share of S.M.'s college expenses. Plaintiff maintains that even though the trial court entered an order which states that all claims for relief in the cross-motion other than the application regarding S.M.'s college costs are denied without prejudice, the trial court ruled upon and erroneously decided certain claims raised in the cross-motion. We disagree. Although the trial court commented that plaintiff's cross-motion raised many issues that had been previously addressed by the court, we are satisfied that the court did not make a definitive ruling on any part of the cross-motion, other than plaintiff's application regarding S.M.'s college costs.

Plaintiff additionally argues that we should exercise our original jurisdiction under Rule 2:10-5 and decide the remaining issues in her cross-motion. We decline to do so. Original jurisdiction under Rule 2:10-5 may be exercised when "necessary to the complete determination of any matter on review." Ibid. The exercise of original jurisdiction in this matter would be inappropriate because additional fact-finding clearly is required. Hansen v. Hansen, 339 N.J. Super. 128, 143 (App. Div. 2001). In our judgment, the trial court is the appropriate forum for such fact-finding.

 
We therefore conclude that the trial court did not abuse its discretion by refusing to consider and denying without prejudice all of the demands for relief in plaintiff's cross-motion, except for the application regarding S.M.'s college expenses. If plaintiff wishes to obtain a decision on the issues unresolved in her cross-motion, she should re-file her motion in the trial court.

Affirmed.

We note that plaintiff is apparently no longer interested in pursuing her demands for documents pertaining to the patents and trademarks; to compel defendant to contribute to the children's private school education; and for certain civil restraints.

(continued)

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A-2625-07T1

June 4, 2009