BETH SOBEL v. PATRICK MAGUIRE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

BETH SOBEL,

Plaintiff-Respondent,

v.

PATRICK MAGUIRE,

Defendant-Appellant.

__________________________________

May 7, 2014

Submitted January 28, 2014 - Decided

Before Judges Hayden and Rothstadt.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Bergen County, Docket No. FM-02-819-09.

George J. Cotz, attorney for appellant.

Rubenstein, Meyerson, Fox, Mancinelli & Conte, P.A., attorneys for respondent (Steven R. Rubenstein, on the brief).

PER CURIAM

In this post-judgment dissolution matter, defendant Patrick Maguire appeals from the Family Part's July 10, 2012 order denying reconsideration of its April 9, 2012 order. The April 9 order modified the parties' property settlement agreement (PSA) by requiring defendant to remove his former wife, plaintiff Beth Sobel, from the note and mortgage encumbering a multi-family home that defendant had obtained through equitable distribution, pursuant to the parties' October 27, 2009 Amended Final Judgment of Divorce. He also appeals from the court's August 23, 2012 order awarding plaintiff attorneys fees for having to oppose defendant's motion for reconsideration. The court denied his reconsideration motion because it was essentially rendered moot by defendant's compliance with the April 9 order. It also granted counsel fees to plaintiff because defendant would not withdraw his motion after it became moot. We have considered the record and the applicable law, and now affirm.

I.

The parties were divorced on October 15, 2009. At that time, they entered into an oral PSA on the record, which the court later incorporated into their Amended Final Judgment of Divorce. Pursuant to the PSA, defendant acquired title to various real estate, including 89 Hopkins Avenue, Mahwah, New Jersey (the "Property"), and was to hold plaintiff harmless and indemnify her as to any claim relating to the Property. Defendant was required to pay the note that was secured by the Property, though the PSA did not require him to have plaintiff removed from the note and mortgage.

On June 25, 2010, plaintiff filed a pro se motion for various forms of relief, including a request that the note and mortgage be assumed by defendant so that her name would be removed as an obligor. A Family Part judge denied plaintiff's motion and ordered the parties to comply with the terms of the PSA.

Plaintiff subsequently filed a lawsuit against her former attorney for negligence, based upon his advising her not to pursue having her name removed from the note and mortgage at the time of her divorce. According to plaintiff, her former counsel reasoned that her removal from the subject obligation would cause the bank to demand full payment of the amount due, and that the indemnification clause would be sufficient to protect her. She evidently settled that claim prior to January 2012, and received $100,000 from her former attorney or his insurance carrier.

On January 20, 2012, plaintiff moved again, before a different judge, to modify the Amended Final Judgment to require that defendant remove her as an obligor. In her supporting certification, she advised the court about her lawsuit against her former attorney and the settlement. She claimed that being obligated on the note and mortgage had significantly damaged her credit, making it difficult to obtain loans for her son's education, among other things. Also, according to plaintiff, there was an order of protection against defendant, and the yearly paperwork related to the mortgage required her to be in contact with defendant. Finally, she stated that if defendant were to assume the mortgage, it would create no greater financial responsibility for him, as he is already obligated by the PSA to make the required payments.

Defendant filed a pro se opposition to plaintiff's motion, and a cross-motion to compel plaintiff to (a) provide him with the 1099-INT tax form she received for the Property; (b) remove him as an obligor on credit cards; (c) turn over a check payable to defendant; (d) remove personal items from the Property; and (e) restrain plaintiff from filing additional motions regarding the note and mortgage. Defendant claimed in his certification that plaintiff was harassing him with lawsuits related to the divorce settlement. He also noted that plaintiff had previously moved for the same relief before a different judge who denied the motion. He argued that plaintiff should not be able to continue to attempt to alter an agreement that she entered into "freely and voluntarily, and that . . . is binding and enforceable." Defendant stated that he "would never have agreed to the terms of the divorce if [he] would have [had] to assume the mortgage," as he had already "t[aken] on 1.2 million in debt with the properties [he] acquired through the divorce [settlement]."

On April 9, 2012, the court heard oral argument and then entered an order amending the Amended Judgment of Divorce to require defendant to:

forthwith make application to a lending institution to refinance the mortgage(s) encumbering the property at 89 Hopkins Avenue, Mahwah, New Jersey to remove the Plaintiff as an obligor within 60 days from the date of this Order. If Defendant is unable to refinance the mortgage(s), the property shall forthwith thereafter be listed for sale with a realtor selected by Plaintiff and at a price determined by the realtor. If the property is listed for sale, Defendant shall cooperate with the realtor to market and sell it[.]

The court granted the modification, determining that it was inequitable to require plaintiff to remain on the mortgage, because she derived no benefit from the Property, and remained an obligor as a result of her former attorney's improper advice. Pursuant to the order, defendant had until June 8, 2012 to comply with its terms.1 The court did not enter a separate order as to defendant's cross-motion at that time.

On April 23, 2012, defendant, now represented by counsel, filed a motion for reconsideration of the April 9 order. While that motion was pending, plaintiff received a letter from an attorney representing defendant in the refinancing of the Property, stating that defendant had complied with the court's order to assume the existing mortgage in his name only. On May 21, 2012, plaintiff's attorney sent a letter to defendant's attorney requesting that the motion for reconsideration be withdrawn as moot. Defendant refused. Plaintiff then filed opposition to defendant's motion for reconsideration and a cross-motion for counsel fees, asserting that defendant's motion was moot and frivolous as he had complied with the April 9 order.

Counsel argued their motions on July 10, 2012. Defendant's counsel stated that, despite his advising defendant to the contrary, defendant complied with the April 9 order because he was scared that if he did not comply, he would be sent to jail for contempt. The court entered an order denying reconsideration because defendant's motion was moot and frivolous, as defendant already complied with the April 9 order. On the same day, the court entered "companion" orders, requiring the parties to comply with the Amended Final Judgment, and plaintiff to "immediately remove defendant as an obligor from credit cards . . . in the event she has already not done so," as requested in defendant's cross-motion.

On August 23, 2012, the court entered an order awarding plaintiff $3,145 in counsel fees incurred as a result of opposing defendant's motion. The court attached a written "Rider" to the order, with a detailed analysis of the factors to be considered under Rules 4:42-9 and 5:3-5 when awarding fees. In that Rider, the court noted:

By the time the parties appeared for oral argument on July 10, 2012, the entirety of Defendant's Motion for Reconsideration was moot. Said motion sought to have this court reconsider and modify its Order entered on April 9, 2012 in respect of Defendant's obligation to refinance the 89 Hopkins Court, Mahwah, New Jersey property. As pointed out in Plaintiff's Certification, Defendant refinanced the property on or before May 17, 2012. It was further provided in Plaintiff's Certification that she had already provided the documents requested by Defendant, including the 1099-INT issued by Bank of America, the checks issued to Defendant by Bank of America, and that she removed Defendant as an obligor from the Chase and Discovery credit cards.

Furthermore, counsel for plaintiff contacted counsel for defendant requesting that defendant's motion be withdrawn as it was moot, since defendant already refinanced the mortgage[.]

. . . .

. . . The current fees incurred were a direct result of Defendant's bad faith, and further pursuit of a matter that had already been resolved without the need of court intervention.

On appeal, defendant raises the following arguments:

POINT I:

THE COURT BELOW ERRED BY MODIFYING THE PROPERTY SETTLEMENT AGREEMENT.

A. The PSA did not require that Defendant remove Plaintiff from the mortgage.

B. The Court erred by not proceeding in a plenary fashion on Plaintiff Sobel's request.

C. It was plain error for the Court to find that Defendant Maguire had an equitable obligation to change the mortgage.

POINT II:

DEFENDANT MAGUIRE'S MOTION FOR RECONSIDERATION WAS NOT MOOT.

A. The court below erred by never ruling on Defendant Maguire's cross motion.

B. The court below erred by finding that Defendant Maguire's request for relief as to the mortgage was moot.

C. Plaintiff came into the court below with unclean hands.

II.

We note at the outset that defendant's appeal is procedurally barred insofar as it relates to any claimed defect in the court's April 9 order. While defendant's brief challenges the reasons for its entry by the court,2 he did not file an appeal from that order. His notice of appeal is limited to only the two subsequent orders, granting plaintiff's request for attorney's fees and denying his motion for reconsideration. Moreover, while his appellate case information statement (CIS) mentions the order and states that its entry was erroneous, it does not explicitly state that defendant is appealing from that order.

Rule 2:5-1(f)(3)(A) requires that "the notice of appeal . . . designate the judgment, decision, action or rule, or part thereof appealed from[.]" Therefore, "it is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review." Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2014) (citing Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994)). As a consequence, where a litigant appeals from an order denying reconsideration, "if the notice designates only the order entered on a motion for reconsideration, it is only that proceeding and not the order that generated the reconsideration motion that may be reviewed." Pressler & Verniero, supra, comment 6.1 on R. 2:5-1 (citing W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458-59 (App. Div. 2008)).

Because defendant did not appeal from the April 9 order, we do not address those arguments, although under different circumstances we could exercise our discretion to do so. See Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 461 (App. Div.), certif. denied, 174 N.J. 544 (2002) (noting in dicta that in cases where "a motion for reconsideration . . . implicate[s] the substantive issues in the case and the basis for the motion judge's ruling on the [underlying judgment or order is] the same[, ] an appeal solely from . . . the denial of reconsideration may be sufficient for an appellate review of the merits of the case, particularly where those issues are raised in the CIS"). However, because we agree with the trial court that defendant's actions rendered the issues moot, we refrain from that exercise of our discretion.

Defendant argues that his compliance with the April 9 order did not render the order valid or appropriate, and that the court failed to act on his properly filed cross-motion. He cites, for example, the July 10 "companion" order that required plaintiff to remove defendant as an obligor on certain credit cards, as requested in defendant's earlier cross-motion. According to defendant, this proves that he had every right to move for reconsideration to obtain that relief, despite his compliance with the one aspect of the April 9 order.3

Defendant also argues that his appeal is not moot, because there is a continuing harm due to the erroneous determination on the July 10, 2012 record that he defaulted on his obligations, and that the settlement was inherently unfair and needed to be reformed. Defendant asserts that these erroneous findings could serve as the basis for future motions by plaintiff, and thus, under Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 330 (1996), the harm is capable of repetition and should be reviewed even if the specific instance is moot. Defendant also says he should be "made whole for the expenses he incurred unnecessarily by virtue of [plaintiff's] disingenuity in coming before the Court for the same relief a third time." We disagree.

We are satisfied that the judge addressed all of the issues properly before the court in the April 9 order, and that, once defendant assumed the subject note and mortgage, there was nothing to reconsider. According to the Family Part judge, once defendant had refinanced the property pursuant to the court's order, that "should have been the end of it":

The refinancing process was completed. He's not going to undo a refinancing process. So even if [the court] were to grant his motion for reconsideration, what is the end result here? The refinancing is done.

The judge also correctly refused to consider defendant's request for expenses related to the refinancing, because he did not include that request in his motion papers. As to the credit cards, the judge again credited plaintiff's certification in opposition to defendant's original cross-motion, which stated that plaintiff had removed defendant as obligor from the credit cards two years prior. The judge further refused to grant defendant's request to enjoin plaintiff from making further motions, in light of our prohibition in Parish v. Parish, 412 N.J. Super. 39, 54 (App. Div. 2010), and because "[t]hat would be deemed closing the courthouse doors to the public which we, by Constitution cannot do." After confirming that all issues had been previously addressed, the judge denied defendant's motion as moot.

Again, we agree with that determination. Mootness is defined as the inability of the court to grant relief due to attendant circumstances. Marjarum v. Twp. of Hamilton, 336 N.J. Super. 85, 92 (App. Div. 2000). "An issue is moot when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." N.J. Div. of Youth & Family Servs. v. J.C., 423 N.J. Super. 259, 263 (App. Div. 2011) (quoting N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 261 (App. Div. 2009) (internal quotation marks omitted), certif. denied, 201 N.J. 153 (2010)). An issue may not be moot "when a party still suffers from the adverse consequences . . . caused by [the prior] proceeding[.]" In re N.J. Dep't of Envtl. Prot. Conditional Highlands Applicability Determination, 433 N.J. Super. 223, 234 (App. Div. 2013) (quoting A.P., supra, 408 N.J. Super. at 262) (internal quotation marks omitted) (alterations in original) (finding appeal of decision to build electrical substation was not moot even though substation was already built, in light of persistent health and safety issues); see also Mony Life Ins. Co. v. Paramus Parkway Bldg., Ltd., 364 N.J. Super. 92, 101 (App. Div. 2003) (finding foreclosure appeal was not moot even though mortgage was satisfied in full, because dispute remained over the amount due on mortgage); A.P., supra, 408 N.J. Super. at 262 (noting in dicta that defendant parent may appeal final order of abuse and neglect even after filing of termination of parental rights action, because DYFS would retain custody of child, and parent's name would be placed in the central abuse registry, which may prevent parent from obtaining certain jobs and have other adverse effects).

Ordinarily, we will decline to decide moot appeals unless the issue is (1) of significant public importance, and (2) "likely to reoccur but capable of evading review." Zirger, supra, 144 N.J. at 330. This is generally treated as a conjunctive test, requiring both prongs to be met. Clymer v. Summit Bancorp, 171 N.J. 57, 65-66 (2002) (citing State v. Gartland, 149 N.J. 456, 464 (1997) (To be considered, the moot issue must "present[] a question that is both important to the public and likely to recur.")).

The matters that satisfy this test generally involve statutory construction or constitutional issues. See, e.g., State ex rel. C.V., 201 N.J. 281, 286 (2010) (reviewing denial of jail credits for defendant who already completed sentence because "th[e] case provide[d] a useful opportunity for underscoring that family courts have flexibility when imposing sentence on a juvenile subject to a suspended sentence"); Clymer, supra, 171 N.J. at 66 (reviewing provisions of Uniform Unclaimed Property Act even though dormancy period for subject property had expired, because "custodial escheat under the Act allows the State to use unclaimed funds for the public good, and large sums are at stake. . . . [and] we are satisfied that controversies similar to this one will present themselves in the future"); State v. McCabe, 201 N.J. 34, 44-45 (2010) (clarifying standards for municipal judge recusal under Rule 1:12-1 despite dismissal of the underlying case); Green Party v. Hartz Mt. Indus., 164 N.J. 127, 131-32 (2000) (determining and applying proper standard for testing constitutionality of restrictions on campaigning, even though subject election is over).

We do not find that defendant's appeal presents a matter involving a continuing adverse consequence, see Mony Life Ins., supra, 364 N.J. Super. at 101, or one of significant public importance, capable of repetition, and capable of evading review, see Zirger, supra, 144 N.J. at 330. Defendant concedes in his appellate brief that we cannot undo the specific harm caused by the denial of reconsideration. Moreover, his request that he instead be reimbursed for his expenses is not properly before us, because he did not request that relief from the Family Part in his motion for reconsideration. Selective Ins. Co. of America v. Rothman, 208 N.J. 580, 586 (2012) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1977)).

Also, the Family Part's and our denial of relief to defendant do not create continuing adverse consequences, see Mony Life Ins., supra, 364 N.J. Super. at 101, unlike the final determination of child abuse in A.P., supra, 408 N.J. Super. at 262, the final judgment of foreclosure in Mony Life Ins., supra, 364 N.J. Super. at 101, and the construction of the electrical substation in Highlands, supra, 433 N.J. Super. at 234. Defendant remains liable on the note and mortgage and obligated to make all payments toward the note's satisfaction, just as he did before the court's April 9 order.

Additionally, appellate review despite mootness would be inappropriate in this case. Defendant presents issues that have no implications beyond the specific case at hand, are unlikely to reoccur, and are capable of review and final resolution. See Zirger, supra, 144 N.J. at 330. We therefore find no basis to disturb the Family Part's July 10, 2012 order.

III.

We also reject defendant's contentions regarding the Family Part's August 23 order awarding counsel fees, although he explicitly appeals from that order, because defendant failed to present his arguments to us in any of his briefs or in his CIS. Litigants must present all legal issues for consideration in a brief under point headings. R. 2:6-2(a)(5); see Mid-Atlantic Solar Energy Indus. Ass'n v. Christie, 418 N.J. Super. 499, 508 (App. Div. 2011) (declining to address argument raised as cursory discussion in plaintiff's brief because it was not properly presented to court for consideration and did not afford defendant an adequate opportunity to respond). We therefore choose not to address this issue as "[i]t is, of course, clear that an issue not briefed is deemed waived." Pressler & Verniero, supra, comment 4 on R. 2:6-2; see also Gormley v. Wood-El, 422 N.J. Super. 426, 437 n.3 (App. Div. 2011); Telebright Corp. v. Dir., Div. of Taxation, 424 N.J. Super. 384, 393 (App. Div. 2012) (treating failure to brief an argument as waiver); Znvodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001) (deciding a party's failure to present any argument relating to its cross-appeal constituted an abandonment of that claim). While a litigant may "be relieved of the waiver in the interests of justice," Pressler & Verniero, supra, comment 4 on R. 2:6-2 (citing Otto v. Prudential Prop. and Cas. Ins. Co., 278 N.J. Super. 176, 181 (App. Div. 1994) (reviewing un-briefed issue for plain error, R. 2:102, to prevent party from receiving an unfair windfall)), we do not believe the circumstances of this case require us to consider defendant's claim in order to satisfy those interests.4

Affirmed.

1 The order also addressed other issues raised by both parties. For example, it noted that the parties resolved "by consent" an issue about the custody of the parties' dog, and that the issue about the removal of certain personalty from the Property was "withdrawn as moot."

2 Defendant also included a transcript of the April 9, 2012 hearing and the moving papers related to that motion in his appendix.

3 Defendant does not mention, however, that the July 10 order made compliance conditional. It was only effective if plaintiff had not already complied, which the court ultimately believed she did.

4 We decline to consider the application especially because we believe that the fee award was supported by the record and made in accordance with the applicable law, R. 4:42-9, 5:3-5, and did not constitute an abuse of discretion. United Hearts, L.L.C. v. Zahabian, 407 N.J. Super. 379, 390 (App. Div.), certif. denied, 200 N.J. 367 (2009).