FATIMA ABDALLA v. HOVSEP ASSADOURIAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3819-12T3

FATIMA ABDALLA,

Plaintiff-Appellant,

v.

HOVSEP ASSADOURIAN,

Defendant-Respondent.

______________________________

November 18, 2014

Argued November 5, 2014 - Decided

Before Judges Koblitz and Higbee.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Morris County, Docket No. FM-14-275-00.

Fatima Abdalla, appellant, argued the cause pro se.

Respondent has not filed a brief.

PER CURIAM

After a post-judgment plenary hearing at which both parties were represented by counsel, plaintiff Fatima Abdalla appeals pro se from a March 6, 2013 order denying reconsideration of that portion of the order requiring the sale of the marital home. The August 20, 2012 order directed that the proceeds were to be evenly divided between the parties, after defendant Hovsep Assadourian paid $15,600 in alimony arrears from his share. We affirm the denial of reconsideration.1

The parties were married in 1973 and divorced on January 30, 2003, when a settlement of all issues was placed on the record. Plaintiff was represented by counsel at this time, although defendant was not. No property settlement agreement was executed, and the transcript of their agreement was unavailable by the time this post-judgment motion was filed.2 Plaintiff's counsel had also retired and destroyed plaintiff's divorce file. The lack of a written agreement was apparently not brought to the attention of the court until 2010, when plaintiff's motion for increased alimony was denied.

The parties did not agree on the substance of their settlement, so eventually a plenary hearing was held at which plaintiff testified with the assistance of an Arabic interpreter.3 Although the judge instructed her to use the Arabic interpreter, plaintiff testified primarily in English, answeringthe questionsresponsively, althoughwith littleknowledge ofher financialsituation. Shetestified thatshe didnot understand the court proceedings at the time of the divorce because she did not have an interpreter, but that her understanding of the settlement agreement was that she would receive one-half of defendant's cleaning business and the marital home, while he would receive another home that he owned. She was unclear as to who was supposed to pay the mortgage, taxes and insurance for the marital home, but said she had never made those payments since the divorce. She continued to live in the home with one of her adult sons and his wife and two children.

Defendant testified that, after the divorce, plaintiff's lawyer gave him a proposed judgment of divorce indicating that plaintiff would have use and occupancy of the marital home as long as she wanted.4 That paragraph in the proposed judgment prepared by plaintiff's counsel reads, in pertinent part

The plaintiff shall continue to have exclusive use and occupancy of the former marital home . . . for as long as she shall desire, as her sole and exclusive choice. The defendant shall be solely responsible to pay the carrying costs on said former marital home, including mortgage,[5] taxes and insurance until such time as the property is sold, which time will be at the sole wish of the plaintiff.

The proposedjudgment alsostates thatwhen the house is sold, the partieswill dividethe proceedsequally andthat plaintiffwaives any interest in defendant's business. Defendant said he refused to sign this document because it did not reflect the agreement thatwas puton therecord. Hesaid themarital homewas to besold assoon aspossible andpresented alisting agreement from 2005. Defendant testifiedthe parties'son hadpaid thehousing costs since 2010, after defendant was no longer able to doso. Atthe timeof theplenary hearingboth partieswere intheir sixties, unemployedwith littleprospect ofworking inthe future,and dependent on social security payments.6 Neither had any significant assets in the United States other than the marital home.7

After listening to the testimony and considering the documentary evidence,8 the trial judge determined that "the parties never agreed as to the disposition of the marital home[.]" The judge then ordered the sale of the home, approximately nine years after the divorce.

Plaintiff refused to participate in the sale. On September 10, 2012, the judge appointed a listing real estate broker and ordered the parties to sign the listing agreement within ten days. On December 31, 2012, the judge appointed an attorney to act as a signatory to execute the listing agreement on behalf of plaintiff. He also assessed $3000 in counsel fees against her.

Plaintiff, represented by counsel, filed the motion for reconsideration at the end of January 2013. It purported to seek reconsideration only of the December 31 enforcement order, but the motion sought to have the judge reconsider his August decision that the house be sold. Plaintiff alleged in her certification that in 1998 and 1999, well before the divorce, defendant took out two fraudulent mortgages in the total amount of approximately $250,000. She attached a letter to her from Capital One dated October 17, 2011, indicating that she had been the victim of identity theft. The letter indicated that Capital One had instructed the Bank of America to remove the loan and cease foreclosure activity. The letter made no reference to defendant, or any of the particulars of the loan, including its amount or origination date. Plaintiff sought to delay the sale of the home to give her additional time to obtain evidence concerning this identity theft. This motion seeking reconsideration of the home sale was filed more than five months after the judge first ordered the home sold in August, well beyond the non-enlargeable twenty-day time period set forth in the Rules. R. 4:49-2; R. 1:3-4(c).

The trial judge denied the motion for reconsideration because it was untimely, and because it sought time to obtain information that had been available to plaintiff long before the plenary hearing. He reviewed the "unsubstantiated claims yet again" and found "no mistake or other basis to revisit the August 20, 2012 ruling." A motion for reconsideration is addressed to the "'sound discretion of the [c]ourt, to be exercised in the interests of justice.'" Cummings 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)).

Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect [12] 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[.]

[Ibid.]

Plaintiff sought reconsideration because she alleged she would be able to find new evidence to convince the judge to change the decision. As the judge recognized, plaintiff received the letter indicating she was the victim of identity theft nine months prior to the plenary hearing and could have obtained further information if any was available at that time. The judge viewed this motion as a stall tactic because plaintiff had made clear by her behavior her intention not to cooperate in the sale of the home. The judge exercised his sound discretion in denying plaintiff's motion for reconsideration. Any remaining arguments raised by plaintiff are without sufficient merit to require discussion in a written opinion. R. 2:11-3(e)(1)(E). We therefore affirm.

Affirmed.

1 "It is a fundamental [principle] of appellate practice that we only have jurisdiction to review orders that have been appealed to us." State v. Rambo, 401 N.J. Super. 506, 520 (App. Div.) (citations omitted), certif. denied, 197 N.J. 258 (2008), cert. denied, 556 U.S. 1225, 129 S. Ct. 2165, 173 L. Ed. 2d 1162 (2009). "[O]nly the judgment or orders designated in the notice of appeal . . . are subject to the appeal process and review[.]" 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004) (citation omitted). Thus we do not review the initial decision ordering the house to be sold, although we do note that dividing the equity in the home equally between the parties is consistent with plaintiff's counsel's proposed judgment.

2 Administrative Directive #3-01, adopted March 16, 2001, provides that electronic recordings of Family proceedings must be kept for five years before destruction. R. 1:32-2(c).

3 The transcript of the plenary hearing notes on the first page, "Due to all participants speaking simultaneously throughout proceedings, transcript provided to best of transcriber's ability."

4 Defendant also agreed to pay plaintiff permanent monthly alimony of $600. After the plenary hearing the judge terminated alimony based on defendant's disability.

5 We note that, contrary to plaintiff's apparent position that she thought the marital home was mortgage-free at the time of the divorce, her attorney, who prepared this document, was clearly aware of the mortgage on the home.

6 Defendant testified that he had applied for benefits, but had not yet received any payments.

7 Plaintiff had property and a bank account in Egypt, which the judge awarded solely to her.

8 Plaintiff provided an appendix of 312 pages without indicating which documents were introduced into evidence at the plenary hearing. The submission of any documents that were not introduced into evidence at the plenary hearing or attached to the motion for reconsideration is contrary to the Rules. R. 2:5-4(a). We therefore have not considered the majority of the material provided by plaintiff.