STEPHEN KOWAL v. RANDI HARTMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STEPHEN KOWAL,

Plaintiff-Respondent,

v.

RANDI HARTMAN,

f/k/a RANDI KOWAL,

Defendant-Appellant.

________________________________________________________________

February 10, 2014

Submitted September 3, 2013 Decided

Before Judges Alvarez and Maven.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-0444-04.

Law Offices of John A. Patti, attorneys for appellant (Mr. Patti, on the briefs).

Seth D. Josephson, attorney for respondent.

The opinion of the court was delivered by

MAVEN, J.A.D.

Defendant Randi Hartman appeals from the January 20, 2012 Family Part order denying her motion for reconsideration of the September 30, 2011 order that modified alimony payments. We affirm.

We summarize the facts relevant to our review. Defendant and plaintiff Stephen Kowal were married on June 10, 1979. Two children were born of the marriage: M.K., born in 1985 and J.K., born in 1989. The parties divorced by final judgment of divorce (FJD) dated March 25, 2005, which incorporated a property settlement agreement (PSA).

The "Custody and Support" provision of the PSA granted plaintiff legal and residential custody of J.K., the remaining unemancipated child. The parties agreed that in exchange for receiving reduced alimony, defendant would not pay direct weekly support for the minor child. The relevant alimony provision states:

. . . Husband agrees to pay Wife permanent alimony of $400/week. . . . This is based upon Husband's earnings of approximately $110,000/year and imputed income to Wife of $35,000/year. . . . The parties acknowledge that Wife has a child support obligation for the unemancipated. The range for permanent alimony is between $575.00 - $600.00. This $400.00/week agreement specifically takes into account that Husband is not seeking child support from Wife in exchange for the lower weekly permanent alimony payment.

. . . .

These alimony payments shall be subject to review upon the good faith retirement of Husband after the age of 65. . . . Husband's involuntary Loss of Employment, other than temporary, shall be an event subjecting alimony to a review consistent with existing case law. In the event [H]usband is permanently disabled, as defined and to the extent payable by his disability insurance policy, it shall be an event subjecting alimony to review, recalculation derived only from proceeds from disability insurance policy.

Pursuant to the parties' agreement on equitable distribution, defendant was to receive a fifty percent interest in the coverture portion of plaintiff's State pension. The coverture portion was calculated from the date of plaintiff's employment through the date of the complaint for divorce.

On June 3, 2011, the court considered defendant's motion seeking (1) distribution of plaintiff's pension in accordance with the Qualified Domestic Relations Order (QDRO)1 filed on August 25, 2005; (2) requesting a share of plaintiff's pension payout of $559 per month;2 (3) seeking emancipation of J.K.; (4) seeking an increase in alimony to the original amount awarded based on the emancipation; and (5) other relief not relevant to this appeal. Plaintiff opposed the motion. After oral argument, the court ordered plaintiff to provide information with respect to the nature of his disability pension, particularly whether his pension had vested, whether it was exclusively a disability pension, or if it also contained a retirement component. The court also emancipated J.K. and determined that defendant's child support obligation was therefore extinguished. The court increased alimony to $589 per week, an amount within the range set forth in the PSA.

On August 23, 2011, the court denied plaintiff's request for reconsideration of the June 3 order modifying alimony, without prejudice. It ordered the parties to file current Case Information Statements (CIS) with appropriate financial proofs so the court could reassess alimony. As for defendant's request for distribution of plaintiff's pension, the court noted that plaintiff submitted a letter from the New Jersey Department of Treasury "clearly indicating that his pension benefits did not vest at the time the Complaint for Divorce was filed." Therefore, the judge found that plaintiff's pension was not subject to equitable distribution. The court further noted that the State's letter also indicated that plaintiff is currently receiving an ordinary disability retirement allowance from the Division of Pensions and Benefits and "will not receive any additional monthly pension benefit in the future." Citing Larrison v. Larrison, 392 N.J. Super. 1 (App. Div. 2007), the court denied distribution of the pension without prejudice leaving open the possibility for "reconsideration of this issue made within a reasonable time from the date of this Order."

On September 30, 2011, in furtherance of the August order, the court recalculated the alimony obligation but used only plaintiff's CIS and financial proofs, as defendant failed to submit her information. The court accepted and adopted plaintiff's legal argument that the PSA limited his income to disability liability insurance proceeds. Plaintiff also provided the court with general salary information for persons with defendant's skills and qualifications. The court based the alimony recalculation on plaintiff's monthly disability insurance benefit of $6,442.73, and imputed monthly income of $4,470.08 for defendant. The court ruled that

since [d]efendant did not submit the requested documents so that the factors of N.J.S.A. 2A:34-23 could be considered and since no opposition to [p]laintiff's request for alimony to be set a $655.21 per month based on comparative income, the [c]ourt will set alimony at $655.21 per month. The effective date shall be August 23, 2011.

After receiving the order, defendant filed and served a subpoena for plaintiff's Bank of America account, and later filed a motion for reconsideration of the September 30, 2011 order, requesting the court to set alimony at $600 per week, per the PSA, and award defendant counsel fees. In support of her motion, defendant provided a certification from her counsel accepting responsibility for failing to submit defendant's CIS, stating, "[w]e do not dispute the order of the court . . . and I take responsibility of the misunderstanding that the firm had regarding the forwarding of the Case Information Statement of the Defendant." In the brief supporting her motion, defendant sought review of the court's decision to base alimony "solely on one of two disability pensions." Defendant attached her CIS to the motion. Plaintiff filed a cross-motion to quash the subpoena.

On January 20, 2012, the court denied defendant's motion for reconsideration on procedural and substantive grounds. The court first ruled that defendant failed to satisfy Rule 4:49-2 by not stating with specificity what the court overlooked or as to how it erred. Furthermore, the court determined defendant failed to satisfy Rule 4:50-1(a) by not setting forth why counsel's "misunderstanding" regarding the submission of the defendant's CIS established a mistake or excusable neglect.

Although the court stated the September 30 order "was primarily due to [d]efendant's failure to comply with paragraph 2 of the August 23, 2011 order" to provide her CIS and financial proofs, it nevertheless considered all of defendant's claims for modifying alimony and reviewed her recently submitted certification and proofs. The court did not find them "competent and adequate" to warrant further modification of alimony. The court soundly rejected defendant's contention that plaintiff's other sources of income should be used for calculating alimony, based on Article II, Section 1 of the PSA, which directed alimony to be recalculated from only disability insurance policy proceeds in the event of plaintiff's permanent disability.

As to the cross-motion, the court granted plaintiff's motion to quash the subpoena finding that the parties waived their right to additional discovery and disclosure in the PSA. Moreover, it found, defendant did not have court approval prior to serving the subpoena to conduct discovery, as required by Rule 5:5-1(d). Finally, the court denied defendant's request for counsel fees, granted plaintiff's request, and awarded him $592 in counsel fees and $30 court costs.

Defendant filed this appeal on February 2, 2012 and seeks review of the January 20, 2012 order denying reconsideration. Defendant contends that (1) she is entitled to equitable distribution of plaintiff's pension; (2) alimony should be modified based on the emancipation of the children, and pursuant to the PSA and QDRO; (3) the court erred by not considering all of plaintiff's sources of income when modifying alimony; (4) the award of counsel fee to plaintiff should be reversed; and (5) she is entitled to counsel fees for this appeal.

Under Rule 2:5-1(f)(3)(A), "'only the orders designated in the notice of appeal [] are subject to the appeal process and review.'" Petersen v. Meggitt, 407 N.J. Super. 63, 68 n.2 (App. Div. 2009) (citation omitted). Where, as here, a notice of appeal designates only the order denying reconsideration and not the orders of which reconsideration was sought, that original order "is not before us for review," and we address only the order denying reconsideration. Fusco v. Bd. of Educ., 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002); see also R. 2:4-3(e). We may exercise our discretion to review the original order, if the Case Information Statement "makes clear that this is a matter in which the motion for reconsideration implicates the substantive issues underlying the order for judgment," Tara Enter., Inc. v. Daribar Mgmt. Corp., 369 N.J. Super. 45, 60 (App. Div. 2004), or if "'the substantive issues . . . and the basis for the motion judge's ruling on the summary judgment and reconsideration motions was the same.'" Potomac Aviation, LLC v. Port Authority, 413 N.J. Super. 212, 222 (App. Div. 2010) (quoting Fusco, supra, 349 N.J. Super. at 461).

To begin, we note that the issues raised in points one and two, with respect to the distribution of plaintiff's pension pursuant to the QDRO, and modification of alimony based on emancipation, were not the subject of the January 2012 reconsideration motion. Rather, those matters were addressed in orders issued by the court on June 3 and August 23, 2011. Moreover, neither the notice of appeal nor the Case Information Statement indicated these matters as part of this appeal; therefore, they will not addressed. R. 2:4-3(e). Moreover, the August 23, 2011 order denying equitable distribution of plaintiff's pension is not a final order, R. 2:2-3, as the motion was denied without prejudice subject to further analysis if the matter were brought back before the court in a reasonable amount of time.

As to the issue raised in point three, defendant's contentions with respect to the utilization of all plaintiff's sources of income for purposes of modifying alimony were implicated in her Case Information Statement, and discusses the same substantive issue underlying the September 30, 2011 order. Thus, even assuming defendant's appeal encompasses both the orders, we affirm for substantially the reasons given by Judge DeBello in his written opinion accompanying the January 20, 2012 order. We add the following comments.

"The findings of a trial judge are entitled to great deference and will be overturned only if 'we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant[,] and reasonably credible evidence as to offend the interests of justice.'" Platt v. Platt, 384 N.J. Super. 418, 425 (App. Div. 2006) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

We review for abuse of discretion the trial judge's denial of reconsideration. Del Vecchio v. Hemberger, 388 N.J. Super. 179, 189 (App. Div. 2006); see also Fusco, supra, 349 N.J. Super. at 462 (noting "'[r]econsideration should be used only for those cases which fall into that narrow corridor'" where "'the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or . . . the Court either did not consider, or failed to appreciate the significance of probative, competent evidence[]'") (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401), certif. denied, 174 N.J. 544 (2002).

The court's decision not to reconsider alimony was not error. Defendant clearly failed to provide her information or challenge plaintiff's submissions so the court entered an order based upon the information in hand. The court fully explained its reasons for denying reconsideration, and finding that the terms of the PSA limited plaintiff's income to his disability insurance proceeds. Based on our review of the record, we conclude the judge did not abuse his discretion by refusing to modify the September 30, 2011 order in this regard.

Lastly, we are satisfied that defendant's arguments challenging the order of counsel fees are without sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(1)(E), and in light of our determinations, we reject defendant's claim for counsel fees for this appeal.

1 The QDRO states that defendant shall receive a 50% interest in plaintiff's retirement plan "as of the date of retirement in the event participant retires at an age other than at 65 years, provided that the benefit herein addressed is vested as of the Coverture Period."

2 Plaintiff retired early in 2008, at age 52, and began receiving disability pension.