DARLENE A. MORRISON v. MARK M. MORRISON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4237-04T14237-04T1

DARLENE A. MORRISON,

Plaintiff-Respondent/

Cross-Appellant,

v.

MARK M. MORRISON,

Defendant-Appellant/

Cross-Respondent.

__________________________________________

 

Submitted March 29, 2006 - Decided May 10, 2006

Before Judges Conley and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, FM-18-4419-92.

Edward J. Zohn, attorney for appellant/cross-respondent.

Darlene A. Morrison, respondent/cross-appellant pro se.

PER CURIAM

Defendant appeals the entry of the order dated March 4, 2005, denying his post-judgment motion seeking reconsideration of the court's order dated November 22, 2004, which ordered defendant to contribute towards his daughter's college education costs and denied defendant's request for a plenary hearing to determine his ability to pay and other factors as set forth in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982). Plaintiff cross-appeals the adequacy of the counsel fees awarded under that same order. We affirm.

Plaintiff Darlene A. Morrison and defendant Mark M. Morrison were married in February 1986. One child, Leslie, was born to the marriage. The parties separated in May 1991. As part of that separation, they entered into a property settlement agreement (PSA) on June 9, 1991. Following the separation, plaintiff moved to New Jersey with Leslie. Plaintiff filed a complaint for divorce three months later.

Following trial, a judgment of divorce was entered on February 2, 1993. A number of proceedings to enforce litigant's rights ensued. The court conducted a plenary hearing on June 4, 1997, after which judgment was entered in favor of plaintiff and against defendant in the amount of $6,984.65 plus interest. The judgment represented a deficiency due to plaintiff for her share of defendant's retirement pay. The court also ordered that plaintiff's equitable share of defendant's pension would be subject to cost of living (COLA) increases. Defendant appealed that decision and we affirmed. Morrison v. Morrison, No. A-51-97 (App. Div. October 22, 1998) (slip op. at 4-5).

On September 7, 2004, defendant filed a motion to: (1) emancipate Leslie; (2) compel plaintiff to refund all child support payments she received from July 1, 2004, with that amount pro rated from June 18 through June 30, 2004; (3) direct the probation department to adjust child support arrears; (4) discontinue garnishment of his wages for child support; and (5) declare that defendant was no longer responsible for medical care, dental care, or to maintain life insurance for Leslie. Plaintiff filed a cross-motion to compel defendant to contribute to Leslie's college education costs and also to enforce litigant's rights because defendant had not satisfied the June 6, 1997, judgment.

The motion judge denied defendant's motion in all respects and granted plaintiff's cross-motion, except as to counsel fees. In his statement of reasons, the judge found that Leslie, as a full-time college student, had not left the "sphere of influence of her parents" and accordingly was not emancipated. He therefore concluded the PSA did not relieve defendant of his obligation to contribute to Leslie's college education. Relying upon Pascale v. Pascale, 140 N.J. 583 (1995), and Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993), the judge reasoned that plaintiff, as the custodial parent, could not waive support for Leslie's college expenses because the duty "runs to the supported child - not to the custodial parent." He thereafter considered the Newburgh factors and determined defendant was responsible for seventy percent of Leslie's education costs of $37,000, less the achievement award she received and less any loan amount she had secured. The judge also ordered that defendant reimburse plaintiff the sum of $13,142, as defendant's share of the Fall Semester 2004 expenses. The judge further found defendant violated litigant's rights because he failed to satisfy the June 6, 1997, judgment. Finally, in denying plaintiff's application for counsel fees, the court concluded plaintiff "failed to offer substantial evidence that the Defendant has acted in bad faith or that the Plaintiff has sufficient financial need that would justify an award of counsel fees."

On December 13, 2004, defendant filed a motion for reconsideration of the court's November 22, 2004, order. Defendant also sought a plenary hearing to determine "whether or not the factors identified in Newburgh[, supra,] would require the defendant to pay for college expenses for the parties' daughter." Plaintiff filed a cross-motion on January 6, 2005, in which she opposed defendant's motion for reconsideration, moved to enforce litigant's rights based upon defendant's failure to comply with the November 22, 2004, order, and sought counsel fees.

In support of the reconsideration motion, defendant submitted a certification in which he stated the Case Information Statement (CIS) submitted in support of the original motion was incorrect and that the CIS submitted with the reconsideration motion properly identified his total monthly expenses, which previously did not identify his "prior existing support obligations."

In his statement of reasons denying the motion, the judge stated:

Given all of the information presented to the court at the time of the original motion, each factor of the test provided for in Newburgh was analyzed and given close attention by the court. Defendant, by submitting three revised CIS reports, since the original order was entered, has not provided the court with new information that he has not demonstrated was available at the time of the original motion, with the exception of his 2004 gross income. All Defendant has accomplished through repeated filings of CIS reports is to further muddle his current financial position. However, the 2004 gross income, is new information and is not a basis for reconsidering the previous order entered by the court. If Defendant seeks to modify his support obligations under the Lepis standard then he can seek to do so through a new motion, however, at this time Defendant's request would be improperly cast as a motion for reconsideration.

Motions for reconsideration are to be analyzed in accordance with Rule 4:49-2, which sets forth in relevant part that "[t]he motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." "Reconsideration is a matter within the sound discretion of the court, to be exercised in the interest of justice." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990) (citing Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988)). Moreover, a motion for reconsideration is warranted only if the court's decision is palpably incorrect or if the court ostensibly failed to consider or appreciate the significance of probative evidence. Ibid.

We discern no abuse of discretion in the trial court's refusal to grant the motion for reconsideration of its November 22, 2004, order. The essence of defendant's argument on appeal is that the court failed to consider the revised CIS and misapplied most of the twelve Newburgh factors. We disagree. The judge properly concluded the revised CIS was more appropriately the subject of a motion for relief from judgment pursuant to Lepis v. Lepis, 83 N.J. 139 (1980), rather than a motion for reconsideration. Id. at 151-53. In addition, contrary to defendant's contention, the judge considered all of the Newburgh factors before arriving at his decision. We conclude nothing in the record evidences palpably incorrect findings of fact and conclusions of law sufficient to warrant reconsideration of the court's earlier decision. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria, supra, 242 N.J. Super. at 401).

Similarly, based upon the submissions before the court in the original motion, a plenary hearing was not warranted. Murphy v. Murphy, 313 N.J. Super. 575, 580 (App. Div. 1998). In his August 25, 2004, certification, defendant focused upon three issues: (1) the PSA; (2) his estrangement from Leslie; and (3) an investment fund that was intended to "fund 50% of their daughter's college education." The motion judge addressed each of these areas. He found defendant previously enjoyed a close relationship with his daughter that had become strained. He also concluded "[t]here is nothing to substantiate that Defendant paid more child support than was required, to avoid having to pay college expenses." He further found defendant provided no evidence to establish the existence of a college fund. Moreover, the court reasoned the fact that defendant waived entitlement to a portion of plaintiff's retirement account was inconsequential because "[h]is share of that account was not sufficient to warrant his not paying college costs for Leslie." Thus, defendant's factual allegations were considered, with the court concluding the allegations presented did not negate defendant's duty to contribute towards Leslie's education or that there were insufficient facts to establish genuinely disputed issues sufficient to warrant further proceedings. A plenary hearing is only required when the factual allegations contained in the certifications demonstrate there are genuinely disputed issues and when the trial judge concludes a hearing would prove helpful. Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976). We are satisfied the judge did not abuse his discretion in resolving the issues without the benefit of a plenary hearing. See Ibid.

Plaintiff's cross-appeal is limited to her contention that the court erred in not awarding additional counsel fees. The court awarded counsel fees in the amount of $2,558.50. In the certification submitted in support of the counsel fee application, plaintiff's counsel certified that "[t]he total value of my firm's services rendered on Ms. Morrison's behalf from December 14, 2004 through January 7, 2005 is $2,558.50 ($265.00 hr. x 9.30 hrs. = $2,464.50) + ($94.00 in costs) = $2,558.50." Thus, the court awarded the full amount of counsel fees incurred from December going forward.

As part of her application for counsel fees, however, plaintiff resubmitted the counsel fees incurred in connection with the earlier motion. The November 22, 2004, order denied that application, and plaintiff never filed a motion for reconsideration. A careful review of the language contained in paragraph 8 of plaintiff's Notice of Cross Motion dated January 6, 2005, illustrates plaintiff's apparent attempt to seek reconsideration of that decision without calling it a motion for reconsideration. Plaintiff's notice of cross-motion states that plaintiff was seeking counsel fees "in connection with the response to defendant's [Reconsideration] Motion and in connection with plaintiff's instant application and the prior Motion for which defendant seeks reconsideration." (emphasis added).

In opposing defendant's motion for reconsideration, plaintiff argued the motion was untimely. Citing Rule 4:49-2, which requires that motions for reconsideration be filed "not later than 20 days after service of the judgment or order upon all parties," plaintiff argued defendant's motion was filed one day late. The motion judge never addressed the timeliness of defendant's motion. Nonetheless, to the extent plaintiff argues defendant's reconsideration motion filed December 3, 2004, was untimely, her cross-motion for reconsideration filed January 6, 2005, was even more untimely. Therefore, that portion of the November 22, 2004, order denying counsel fees was not properly before the court. In as much as plaintiff was awarded the full amount of counsel fees incurred in connection with her response to defendant's reconsideration motion and her cross-motion to enforce litigant's rights, we find no merit to her argument that the award of counsel fees was inadequate.

Affirmed.

 

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A-4237-04T1

May 10, 2006