DEANNA TOMASSO-ADDEO v. ERIC ADDEO

 

(NOTE: The status of this decision is Published.)

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5039-15T1

DEANNA TOMASSO-ADDEO,

        Plaintiff-Respondent,

v.

ERIC ADDEO,

     Defendant-Appellant.
_________________________________

              Submitted February 6, 2018 – Decided February 27, 2018

              Before Judges Reisner, Hoffman and Gilson.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Somerset
              County, Docket No. FM-18-0596-13.

              Eric Addeo, appellant          pro   se   (Gregory    A.
              Pasler, on the brief).

              Shimalla, Wechsler, Lepp & D'Onofrio, LLP,
              attorneys for respondent (Sarah Mahoney Eaton,
              on the brief).

PER CURIAM

        Defendant Eric Addeo appeals from a June 8, 2016 Family Part

order denying his motion for reconsideration of the court's April

4, 2016 order regarding the sale of the parties' former marital
home.   The April 4, 2016 order granted plaintiff $55,000 from the

net proceeds of the sale of the home, after the court found

defendant in violation of litigant's rights based upon his failure

to comply with a June 26, 2015 consent order.     Defendant contends

the order granting plaintiff the $55,000 is contrary to the

parties' previous agreement regarding the distribution of the

home-sale   proceeds.    On   reconsideration,   the   court   rejected

defendant's contentions, concluding that defendant "failed to

satisfy the high bar established for reconsideration."     We affirm.

     Plaintiff and defendant married in June 1994, and divorced

in June 2013.    The parties signed a marital separation agreement

(MSA), which they incorporated into their dual final judgment of

divorce (JOD).   The MSA provided defendant could elect to buy out

plaintiff's equity in the former marital home for $55,000, or the

parties would list the house for sale and split equally the net

proceeds after closing costs.

     Defendant initially chose to list the house for sale.           The

parties listed the house for sale in September 2013 for $439,000.

There were several disputes as to the price and whether to make

certain repairs to the house.         In February 2015, the parties

received an offer for $405,000.         Three days later, defendant

decided to refinance and buy out plaintiff's equity; therefore the

parties rejected that offer.

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       The parties then filed the June 26, 2015 consent order, which

provided      defendant   would    refinance    the    mortgage     and   buy   out

plaintiff's equity by paying her the $55,000 agreed upon in the

MSA.    The consent order further provided the parties would split

equally all closing costs associated with the refinance, with the

closing to occur no later than November 30, 2015. Defendant failed

to refinance by the November 30 deadline.1

       On February 16, 2016, plaintiff filed a motion to enforce

litigant's rights based on defendant's "failure to comply with the

June    26,    2015   Consent     Order[,]"    regarding    the     purchase      of

plaintiff's equity in the former marital home.              On April 4, 2016,

the    court   entered    an    order   granting      plaintiff's    motion     for

enforcement of litigant's rights.             That order provided defendant

shall close on refinancing by April 30, 2016, or a judgment shall

enter against defendant in favor of plaintiff for $55,000, and the

court shall grant plaintiff a limited power of attorney to sell

the house.      The order also included a provision instructing the

parties to submit a consent order the same day, and further

provided, "Upon entry, that consent order shall supersede the

relevant provisions of [the court] order."              The parties submitted



1
   Defendant did not apply to refinance the home until November
28, 2015, even though the consent order required him to do so by
October 15, 2015.

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a consent order stating defendant was unable to refinance and the

parties will relist the house for sale.      The consent order did not

address how the parties would distribute the proceeds from the

sale of the house.

     On   April    29,   2016,   defendant    filed   a   motion    for

reconsideration and clarification of the court's April 4, 2016

order.    That motion requested the court vacate provisions two

through four of the April 4, 2016 court order regarding the

refinancing of the mortgage, alleging they conflict with the

consent order.    The motion also requested that the court order the

parties to split equally the net proceeds, after all closing costs,

from the sale of the house.

     On June 8, 2016, the court denied defendant's motion for

reconsideration of the April 4, 2016 order.       In his statement of

reasons, the judge reasoned there was no need to vacate provisions

two through four of the court order because the order clearly

states the consent order supersedes relevant provisions of the

court order.     The judge went on to uphold his decision granting

plaintiff $55,000 from the net proceeds from the sale of the house,

reasoning defendant acted in bad faith in delaying the sale and

refinancing of the house. The judge also awarded plaintiff counsel

fees associated with defendant's motion for reconsideration.



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     On appeal, defendant argues the court abused its discretion

in (1) declining to vacate provisions two through four of its

April 4, 2016 order, (2) awarding plaintiff $55,000 from the net

proceeds of the former marital home, and (3) awarding plaintiff

counsel fees.

     Preliminarily,     plaintiff        questions    the   timeliness     of

defendant's appeal.     We note that defendant only appeals from the

order denying reconsideration and not the underlying order.              The

appeal from the order denying reconsideration was timely, and we

therefore address it.

     When   a   trial     court     denies     a     party's   motion    for

reconsideration, we overturn the denial only in the event the

trial court abused its discretion.         Marinelli v. Mitts & Merrill,


303 N.J. Super. 61, 77 (App. Div. 1997) (citing Cummings v. Bahr,


295 N.J. Super. 374, 389 (App. Div. 1996)). In determining whether

such an abuse has taken place, a reviewing court should be mindful

that a party should not utilize reconsideration just because of

"dissatisfaction with a decision of the [c]ourt."              Capital Fin.

Co. of Delaware Valley v. Asterbadi, 
398 N.J. Super. 299, 310

(App. Div. 2008) (quoting D'Atria v. D'Atria, 
242 N.J. Super. 392,

401 (Ch. Div. 1990)).

     Courts should only grant reconsideration when "either (1) the

[c]ourt has expressed its decision based upon a palpably incorrect

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or irrational basis, or (2) it is obvious that the [c]ourt either

did not consider, or failed to appreciate the significance of

probative, competent evidence."         Fusco v. Bd. of Educ. of Newark,


349 N.J. Super. 455, 462 (App. Div. 2002) (quoting D'Atria, 
242 N.J. Super. at 401).       Trial courts should grant motions for

reconsideration "only under very narrow circumstances."            Ibid.

     Defendant   first   argues    we    should    vacate   provisions     two

through four of the April 4, 2016 court order, regarding the

refinancing of the mortgage because they conflict with the parties'

April 4, 2016 consent order.        Both parties and the trial court

agree the consent order supersedes conflicting provisions of the

court order.     Plaintiff therefore argues, and the trial court

agreed, it is unnecessary to vacate those provisions within the

court order.

     The consent order specifically states that if defendant is

unable to refinance, the parties will relist the house for sale.

The consent order, however, did not address the distribution of

the proceeds from the sale of the house.          Provisions two and three

address   only   refinancing,     and    therefore    the   consent     order

supersedes them and it is unnecessary to vacate them.             However,

provision four contains language regarding the remedy for failure

to refinance, which is not addressed in the consent order and

therefore not superseded. Specifically, provision four determines

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a remedy if defendant fails to refinance by April 30, 2016, and

the parties must relist the house for sale; namely that plaintiff

is still entitled to $55,000.     The trial court's decision was not

palpably incorrect, nor did defendant offer any evidence the trial

court failed to consider.      We therefore affirm the trial court's

decision declining to vacate provisions two through four.

     Defendant next argues awarding plaintiff $55,000 of the net

proceeds from the sale of the home, regardless of the actual sale

price,   contradicts   the   parties'   prior   agreements   calling   for

defendant to give plaintiff $55,000 only if defendant refinances.

Defendant also argues giving plaintiff $55,000 of the net proceeds

from the sale of the home after all closing costs are paid,

essentially means he pays all closing costs.          He notes the MSA

states the parties shall split equally the net proceeds, after

closing costs, from the sale of the house.          This argument lacks

merit.

     The trial court found defendant breached the implied covenant

of good faith and fair dealing.     See Wilson v. Amerada Hess Corp.,


168 N.J. 236, 244 (2001) (holding "[a] covenant of good faith and

fair dealing is implied in every contract in New Jersey").             The

court found defendant failed to abide by both the MSA and then the

June 2015 consent order stating he would refinance.            Plaintiff

relied on defendant's promise to refinance in agreeing to the June

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2015 consent order and rejecting the offer on the house.           The

trial court reasoned defendant acted in bad faith in delaying the

sale and refinancing of the house, and inducing plaintiff to reject

the offer for $405,000 and sign a consent order allowing defendant

to refinance.

     Because defendant breached the consent order by failing to

refinance, the trial judge was within his discretion to award a

remedy.   We find the remedy here – that plaintiff receive the

$55,000 she would have received but for defendant's non-compliance

with the MSA and later court orders – represents a reasonable

response to address the consequences of defendant's bad faith

conduct. Also, although defendant is correct that he is indirectly

responsible for all closing costs, such an order is also reasonable

considering defendant's bad faith.      We therefore affirm the trial

court's order granting plaintiff $55,000 from the net proceeds,

after closing costs, of the sale of the house.

     Defendant next argues the trial court should not have awarded

counsel fees because he was not acting in bad faith and filed a

legitimate   motion   for   reconsideration.      Rule   4:42-9(a)(1)

authorizes an award of counsel fees in a Family Part action.       The

award of fees is discretionary.       J.E.V. v. K.V., 
426 N.J. Super.
 475, 492 (App. Div. 2012) (citing R. 5:3-5(c)).          "An award of

counsel fees is only disturbed upon a clear abuse of discretion."

                                  8                           A-5039-15T1
City of Englewood v. Exxon Mobile Corp., 
406 N.J. Super. 110, 123

(App. Div. 2009) (citing Packard-Bamberger & Co. v. Collier, 
167 N.J. 427, 444 (2001)).

     Rule 5:3-5(c) provides the following list of factors for

consideration in the award of counsel fees:

            (1) the financial circumstances of the
            parties; (2) the ability of the parties to pay
            their own fees or to contribute to the fees
            of the other party; (3) the reasonableness and
            good faith of the positions advanced by the
            parties both during and prior to trial; (4)
            the extent of the fees incurred by both
            parties; (5) any fees previously awarded; (6)
            the amount of fees previously paid to counsel
            by each party; (7) the results obtained; (8)
            the degree to which fees were incurred to
            enforce   existing   orders   or   to   compel
            discovery; and (9) any other factor bearing
            on the fairness of an award.

     In its order denying reconsideration, the trial court awarded

plaintiff     counsel    fees    attributable      to   the     motion     for

reconsideration.        The   court   reasoned   defendant's    motion     for

reconsideration "was unnecessary and [a] waste of limited judicial

resources."     The court considered the factors in Rule 5:3-5(c),

finding that although defendant did not submit his application in

bad faith, he "behaved in bad faith throughout the pendency of

this action."    The court also found defendant's use of "dilatory

tactics"    forced   plaintiff   to   file   a   cross-motion    to   enforce

litigant's rights.       The court granted that motion to enforce


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litigant's rights and most of the relief requested.            The trial

court did not abuse its discretion in awarding counsel fees.

      Finally     defendant   argues    the   trial   court   abused   its

discretion in granting plaintiff power of attorney for the limited

purpose of selling the house; however, the court granted that

power of attorney in a May 3, 2016 order. Because defendant failed

to list that order in his notice of appeal, we decline to address

it.

      Affirmed.




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