THOMAS CORTOPASSI v. GAIL CORTOPASSI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

THOMAS CORTOPASSI,

Plaintiff-Appellant,

v.

GAIL CORTOPASSI,

Defendant-Respondent.

_______________________________________________________

May 8, 2015

Submitted December 16, 2014 Decided

Before Judges Ostrer and Hayden.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-0089-08.

Thomas Cortopassi, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Plaintiff Thomas Cortopassi (Thomas)1 appeals from an August 23, 2013 Family Part order denying his request to reduce previously ordered reimbursement payable to defendant Gail Cortopassi (Gail) for college expenses she incurred on behalf of their son. After considering Thomas' contentions in light of the applicable legal principles and the record on appeal, we affirm.

Thomas and Gail were married in 1988 and divorced in 2008. During their divorce proceedings, the parties executed a Property Settlement Agreement (PSA). In the PSA, Thomas and Gail agreed to equally divide the expenses of college "tuition, room and board after scholarships, grants and 529 plan funds." The agreement stipulated that the parties would first exhaust the 529 savings plan2 established during the marriage before equally sharing college expenses. The husband also agreed to sell his "very extensive football and sports card collection if necessary."

Concerning equitable distribution of assets, the parties stipulated that Gail retained the marital residence and paid the primary mortgage and Thomas paid the home equity loan. The parties further contracted that in the event of a party defaulting on his or her obligations under the agreement, the non-defaulting party was entitled to collect attorney's fees from the defaulting party for enforcing the agreement. Both parties agreed that the agreement "constitutes the entire understanding between the parties and each represents that there have been no other representations, warranties, covenant or undertaking other than those set forth herein." The May 9, 2008 judgment of divorce incorporated the PSA and made it a part thereof.

On March 27, 2013, Gail filed a motion to enforce litigant's rights on several issues. Relevant to this appeal, she requested reimbursement from Thomas for college costs she had incurred for her son's education and attorney's fees in connection with the motion. With her certification, Gail attached a Statement of Account Tuition Receivables (SOA) from the University of the Arts (University) in Philadelphia and a contract with the William Esper Studio (Esper), an acting school in New York that the son attended.3 The SOA was an accounting balance sheet that shows various charges, payments or credits, a description of the transaction, a code, the date of the transaction, and the remaining balance due to the school. According to the SOA, total charges for the two-year period the son attended the college were $82,316.77. Grants, scholarships, stipends and loans amounted to $47,343 and the amount listed as direct tuition payments was $30,309.17. At the time of appeal, the document contained numerous circled figures as well as the hand-written statement "out of pocket" with the hand-written number $27,749.14 next to it.

Gail also certified that she used the funds in the 529 savings plan for room and board during the son's sophomore year at the University. Gail provided a document from Esper, stating that the tuition for two semesters was $7600. Gail requested $27,749.14 in out-of-pocket expenses for the son's college expenses at University and $30,000 for Esper tuition and the son's living expenses in New York City.

Thomas opposed Gail's motion. He argued that during the marriage, the parties agreed that they would pay for the son's college education through the equity in their home. Thomas asserted that he would not have agreed in the PSA to Gail retaining the marital residence unless he thought the home equity would be used for that purpose. He also pointed out that Gail's claim of $30,000 for Esper was not supported by the provided documentation. However, Thomas did not contest the college costs or alleged payments to the University shown on the SOA.

On May 13, 2013, the trial judge ordered Thomas to reimburse Gail $17,674 in tuition costs and $957 in attorney's fees. The trial judge found that the PSA did not contain an agreement to fund college through the parties' home equity; instead, it expressly required the parties to share costs equally. The judge found that Gail had paid $27,749 for the University and $7600 for Esper, which totaled $35,349. The judge then halved the total to reflect the agreement to share costs equally.

On May 15, 2013, Thomas filed a motion to emancipate his son. The next week, on May 21, 2013, he filed a motion for reconsideration of the May 3 order. In the reconsideration motion, Thomas again argued that he and Gail had agreed during the marriage to fund their son's education through the equity in the home. For a second time, Thomas did not contest the University's listed expenses or payments as reflected in the SOA and found by the judge.

On July 2, 2013, the trial court granted Thomas's motion to emancipate the son, but denied his reconsideration motion. The judge again ruled that the PSA was clear and unambiguous and Thomas's argument that the intent of the parties was different from that plainly expressed in the agreement was without merit.

On July 9, 2013, Thomas filed another motion, which he titled "Reduction in Court Ordered College Tuition Reimbursement." The central argument in his latest motion was that in the original motion papers Gail overstated her out-of-pocket tuition expenses. This was the first time that Thomas challenged Gail's allegations of college expenses and payments. Based upon the figures provided in the SOA, he argues that the tuition expenses after deduction of all the credits amounted to $5,758.52.4 Thomas contended that when that amount is combined with the tuition for Esper and divided in half, his liability should be $6,679.26.

On August 23, 2013, the trial judge denied Thomas's motion. The trial judge treated this motion as a second motion for reconsideration, and found that once again he did not present any new information demonstrating that the court erred in its initial decision. Thomas filed the present appeal of the August 23, 2013 order.

On appeal, Thomas argues that the judge's decision was based on insufficient evidence and that the court erred in awarding attorney's fees to Gail. Although not raised during the motion on appeal, Thomas also repeats his argument that the parties intended to take loans on the marital residence to pay for the son's college education.

He maintains that the trial judge improperly calculated his liability based on the SOA and that improper calculation is an argument a court should consider through a motion for reconsideration. See Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02 (Ch. Div. 1990)) (noting that grounds for reconsideration exist when the court expressed its decision "'upon a palpably incorrect or irrational basis'" or "'the [c]ourt either did not consider, or failed to appreciate the significance of probative competent evidence'"). Although Thomas did not call his later motion a motion for reconsideration, courts have discretion to construe motions as motions for reconsideration despite being labeled something else. See Alba v. Sopher, 296 N.J. Super. 501, 503-04 (App. Div. 1997).

We are convinced that it was reasonable for the trial court to consider Thomas's submission as a motion for reconsideration, and it was not an abuse of discretion for the trial court to deny Thomas's motion. Nevertheless, a motion for reconsideration is not an appropriate vehicle simply because a litigant is dissatisfied with a court's decision. D'Atria, supra, 242 N.J. Super. at 401. Instead, in the usual course, the litigant should simply appeal. Ibid. Essentially, a motion for reconsideration argues that the court acted in an arbitrary, capricious, or unreasonable manner. Palombi v. Palombi, 414 N.J. Super. 274, 289 (App. Div. 2010). Motions for reconsideration should also be considered in cases where new evidence, which could not have been presented at the time of initial application, is discovered. Cummings, supra, 295 N.J. Super. at 384 (quoting D'Atria, supra, 242 N.J. Super. at 401). Even so, a motion for reconsideration is not a procedure to make new arguments on the basis of evidence already in the record, ibid., nor is it a basis to introduce new facts that were reasonably available prior to the entry of the order. Palombi, supra, 414 N.J. Super. at 289.

The challenged evidence in the present case was available to Thomas before the initial order was entered because Gail's initial certification included the SOA. Thomas did not dispute the expenditures Gail represented she made to the University, since he argued that the parties had not agreed to equally share the college costs. After that contention was initially unsuccessful, he filed a motion for reconsideration repeating the same argument. Only after the argument as to the source of payments was rejected twice did Thomas argue that the documents submitted by Gail did not support her claimed expenses. The trial court's rejection of Thomas's newly minted argument was not unreasonable under these circumstances. The court has an independent interest in judicial economy and efficiency that the Rules seek to preserve, and parties should not be permitted "repetitive bites at the apple" when they are unsuccessful. See Cummings, supra, 295 N.J. Super. at 384 (quoting D'Atria, supra, 242 N.J. Super. at 401).

Alternatively, given that Thomas was essentially asking for the modification of a final order, the court could have construed his motion as a request for relief from judgment under Rule 4:50-1. Rule 4:50-1 provides the possibility of relief on motion for the following reasons

(a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered . . . ; (c) fraud . . . , misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order

Even under this rule, Thomas is not entitled to relief. Thomas's only argument is that the SOA does not support Gail's claim that the college expenses were $27,479 because the only expenses that should have been counted were the tuition charges rather than the other college expenses paid to the college such as housing or technology fees. However, while Rule 4:50-1(a) protects against mistakes, it is limited to mistakes "'that a party could not have protected against.'" DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 263 (2009) (quoting Cashner v. Freedom Stores, Inc., 98 F.3d 572, 577 (10th Cir. 1996)). Thomas could have raised the issue of the appropriate college expenses covered by the PSA at the same time he argued that the parties had agreed to use the home equity for the son's college education. His failure to do so does not constitute a "mistake" for which a Rule 4:50-1 motion should be granted. Wausau Ins. Co. v. Prudential Prop. & Cas. Ins. Co. of N.J., 312 N.J. Super. 516, 519 (App. Div. 1998).

Finally, although Thomas challenges the trial court's original denial of his claim that all college expenses were to be paid by the home equity in the marital residence, he did not include the May 13, 2013 order in his notice of appeal. Generally, where an issue has not been properly raised or addressed in the notice of appeal, this court will decline to review that issue. See 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004); see also Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1(f) (2015) (stating that "only the judgments or orders or parts thereof designated in the notice of appeal . . . are subject to the appeal process and review.") (emphasis added).

Moreover, even if the order had been included in the notice of appeal, the appeal would be untimely. "Appeals from final judgments of courts . . . shall be taken within 45 days of their entry." R. 2:4-1. The time period in a civil appeal is tolled "by the timely filing and service of a motion to the trial court . . . for rehearing or reconsideration seeking to alter or amend the judgment or order pursuant to R. 4:49-2." R. 2:4-3(e). The trial court's initial order was entered on May 13, 2013. Thomas filed his motion for reconsideration on May 21, 2013, tolling the time period after seven days. The trial court issued its order on July 2, 2013. Thomas did not file his appeal until September 30, 2013. This was an additional eighty-nine days.5 Thus, in total, Thomas filed his appeal ninety-six days after the order. Plainly, an appeal of the May 13, 2013 order would be untimely.

Affirmed.

1 Because both parties share the same last name, when referring to them individually, we will use their first names. We mean no disrespect.

2 26 U.S.C.A. 529.

3 Gail further certified that she attached tuition bills that she paid, but these bills were not included in the record on appeal.

4 Thomas appears to argue for the first time that he is only responsible for paying half the direct charges for tuition as opposed to housing or technology fees despite the PSA providing that the parties would also share in the cost of room and board. Also, expenses such as technology fees are generally considered part of college tuition expenses. Jacoby v. Jacoby, 427 N.J. Super. 109, 121 (App. Div. 2012).

5 Although Thomas filed a motion for "Reduction in Court Ordered Child Support" on July 9, 2013, which the court treated as a second motion for reconsideration, this was not filed within 20 days of the order he was challenging. R. 4:49-2. While a motion for reconsideration filed timely will toll the time for appeal, there is no such provision for a motion for reconsideration that is not "timely" filed. R. 2:4-3(e).