THOMAS J. NELSON v. THOMAS W. NELSON

NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-3300-08T2



THOMAS J. NELSON,

     Plaintiff-Respondent,

v.

THOMAS W. NELSON,

     Defendant-Appellant.
______________________________________

         Submitted January 12, 2010 - Decided April 15, 2010

         Before Judges Grall and Messano.

         On appeal from Superior Court of New
         Jersey, Chancery Division, Family
         Part, Burlington County, Docket No.
         FD-03-1578-00A.

         Scott J. Levine, attorney for appellant.

         Respondent has not filed a brief.

PER CURIAM

     Defendant Thomas W. Nelson is the father of plaintiff

Thomas J. Nelson (Tom) and Tom's younger brother, Scott.      Tom

and Scott's mother died in 1994.   By order entered in October

2005, Tom was awarded custody of Scott.   At the time, Scott was

within weeks of his seventeenth birthday.    In April 2008,

defendant was ordered to pay child support in the amount of $176

per week.    In June 2008, Scott graduated from high school, and

in July defendant moved for an order emancipating the young man

and terminating child support.   Tom opposed the motion and filed

a cross-motion seeking contribution to Scott's college expenses.

    Defendant appeals from an August 26, 2008 order denying

emancipation, continuing child support and requiring him to

contribute to college costs, in a weekly amount to be

determined; a November 21, 2008 order requiring him to pay $276

weekly, inclusive of a $100 weekly contribution to college

expenses; and a January 27, 2009 order denying a motion for

reconsideration of the prior orders that defendant filed on

December 15, 2008.   Defendant filed his notice of appeal on

March 11, 2009.   Tom did not file a timely response, and this

court entered an order suppressing his brief.

    Defendant's appeal was not filed within time to permit him

to challenge the judge's determinations on Scott's emancipation

or defendant's obligation to contribute to Scott's college

education.   Defendant's notice of appeal was not filed within

forty-five days of the entry of the November 21, 2008 order,

which was the final order on his motion and Tom's cross-motion.

R. 2:4-1(a).   While the time for appeal is tolled by timely

filing and service of a motion for reconsideration in the trial

court, Rule 2:4-3(e) specifies that "the remaining time shall




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again begin to run from the date of the entry of an order

disposing of such a motion."     Defendant filed his motion for

reconsideration twenty-four days after the entry of the final

order.     Even if we assume the motion for reconsideration was

timely filed because service of the order was delayed, see R.

4:49-2, that left defendant twenty-one days from January 27,

2009 to file a notice of appeal challenging the November 21,

2008 order.    Defendant's notice of appeal was filed forty-three

days after the January 27, 2009 order.

    Given the date on which the notice of appeal was filed, our

jurisdiction to address error in the initial orders depends upon

defendant showing "good cause" for the untimely filing.      R. 2:4-

4(a) (permitting extension of forty-five-day period, for a

period not to exceed thirty days, upon "a showing of good

cause").    Because defendant has not made any effort to establish

the requisite good cause, we will not address those claims.

    The issue that can be addressed is whether the judge erred

in denying defendant's motion for reconsideration.       Motions for

reconsideration permit the judge to consider "matters or

controlling decisions which counsel believes the court has

overlooked or as to which it has erred."    R. 4:49-2.

"'Reconsideration is a matter within the sound discretion of the

Court, to be exercised in the interest of justice.'"       Cummings




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v. Bahr, 
295 N.J. Super. 374, 384 (App. Div. 1996) (quoting

D'Atria v. D'Atria, 
242 N.J. Super. 392, 401 (Ch. Div. 1990))

(alteration omitted).   Absent new evidence not reasonably

available to a party prior to the initial decision,

reconsideration is appropriate if the initial order was entered

on "a palpably incorrect or irrational basis."   Ibid.    (internal

quotations omitted).

    Applying those standards, we conclude that the judge did

not abuse her discretion in declining to reconsider whether

Scott was entitled to assistance with college expenses if

commensurate with defendant's ability to contribute.     The

judge's initial decision on factors relevant to defendant's

obligation, while less than detailed in its explanation of the

applicability of Gac v. Gac, 
186 N.J. 535 (2006), Newburgh v.

Arrigo, 
88 N.J. 529 (1982) and Gotlib v. Gotlib, 
399 N.J. Super.
 295 (App. Div. 2008), indicates that she considered the

precedents.   Defendant has not established that the judge's

determination on that issue was palpably incorrect or

irrational.   Cummings, supra, 
295 N.J. Super. at 384.

    In contrast, we find that the judge's refusal to reconsider

the amount of defendant's contribution was a mistaken exercise

of discretion.   The judge's initial decision on the amount does

not reflect any consideration of defendant's ability to pay.




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Moreover, the judge had not addressed defendant's claim that the

income of Scott's custodian, Tom, is also relevant, and on

defendant's motion for reconsideration the judge should have

taken the opportunity to do so.

      Accordingly, we reverse and remand to permit the judge to

reconsider the extent of defendant's contributions and to

address his claim that Tom's ability to contribute should be

taken into consideration.   We caution the parties and the judge

that our direction to address defendant's claim about the

relevance of Tom's ability to contribute should not be

understood as an expression of our view that he is so obligated.

Because the issue was raised, the judge should have addressed

it.

      We leave it to the discretion of the trial judge to

determine whether additional discovery, briefing or an

evidentiary hearing is required.      The judge should be mindful of

the importance of providing factual findings and reasons for a

                                       R. 1:7-4(a); Ronan v. Adely,
decision on a dispositive motion.


182 N.J. 103, 110-11 (2004).

      Affirmed in part; reversed in part and remanded for further

proceedings in conformity with this decision.      We do not retain

jurisdiction.




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