HELENA KAPLAN v. ALLAN KAPLAN

NOT FOR PUBLICATION WITHOUT THE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 only binding 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-0

HELENA KAPLAN,

Plaintiff-Appellant,

v.

ALLAN KAPLAN,

Defendant-Respondent.

________________________________________________________________

September 29, 2016

Argued September 13, 2016 Decided

Before Judges Koblitz and Rothstadt.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1259-12.

Neal M. Pomper argued the cause for appellant (Pomper & Associates, attorneys; Mr. Pomper, on the brief).

John P. Paone, III argued the cause for respondent (Law Offices of Paone, Zaleski, Brown & Murray, attorneys; Daniel H. Brown, of counsel and on the brief).

PER CURIAM

In this post-judgment dissolution matter, plaintiff Helena Kaplan appeals from the Family Part's December 5, 2014 order denying her motion for reconsideration of two orders the court entered in October 2014. The court denied the motion after finding that plaintiff's application was tantamount to an attempt to have the court reconsider the Final Judgment of Divorce (FJOD) it entered in May 2013 after a trial. The court also found plaintiff failed to establish that the court "overlooked" anything or "erred" in deciding the motions that led to the October orders.

On appeal, plaintiff argues

POINT I

THE TRIAL COURT WAS MISTAKEN IN ITS EVALUATION OF SPOUSAL SUPPORT.

A. THE TRIAL COURT ERRED IN IMPUTING INCOME TO THE APPELLANT.

B. THE TRIAL COURT IMPROPERLY ASSESSED THE FACTORS IN DETERMINING AN ALIMONY OBLIGATION.

POINT II

THE TRIAL COURT SHOULD NOT HAVE AWARDED RESPONDENT A $45,000.00 CREDIT IN EQUITABLE DISTRIBUTION.

POINT III

THE TRIAL COURT ERRED WHEN IT IGNORED APPELLANT'S REQUESTS FOR A PAYMENT OF $30,370.56.

POINT IV

THE TRIAL COURT ERRED WHEN DENYING APPELLANT'S REQUEST FOR THE RETURN OF PERSONALTY.

POINT V

THE TRIAL COURT ERRED WHEN AWARDING COUNSEL FEES TO RESPONDENT.

POINT VI

THE TRIAL COURT BASED ITS DENIAL OF THE APPELLANT'S CROSS-MOTION ON MISUNDERSTANDING OF A PROCEDURAL RULE.

In response, defendant, Allan Kaplan argues "the court acted properly" in its establishment of alimony payable to him, the equitable distribution (ED) of the parties' property, and its award of counsel fees. He also contends that the court properly found that plaintiff failed to prove any change of circumstances that would warrant a reduction in plaintiff's obligations under the FJOD.

We have considered the parties' arguments in light of the record and applicable legal principles. We affirm.

We discern the following facts from the motion record. The parties were married in 1992, they had no children, and were divorced in May 2013. Their FJOD ordered ED of their property, including the sale of the marital home with the proceeds to be divided and $45,000 to be given to defendant from plaintiff's share for his contribution of pre-marital assets towards its purchase. The court also awarded defendant limited duration alimony for five years in the amount of $7,000 annually, to be paid at the rate of $583.33 per month into a trust for the benefit of defendant, with defendant's brother named as the trustee. The FJOD also acknowledged that the court, through ED, awarded defendant $27,500 in counsel fees. The court entered a supplemental order on May 7, 2013, modifying ED and allocating the parties' tax deduction for property taxes.

Plaintiff immediately filed a motion for reconsideration. Her motion sought to have the court recalculate the alimony award by "vacate[ing] the Court's decision to impute approximately $9,000 of income to Plaintiff [and] vacate [the award of] alimony . . . ." Both parties requested the court alter its ED of certain funds. The court denied the motion but in a subsequent, supplemental order, the court corrected a mathematical error in its original ED calculation and amended the FJOD accordingly.

In October 2013, the court granted defendant's motion to hold plaintiff in violation of litigant's rights for her failure to establish the alimony trust ordered in the FJOD, her refusal to list the former marital home for sale, and her refusal to make payments to plaintiff in satisfaction of her obligation under the FJOD's ED provisions. The court simultaneously denied plaintiff's cross-motion to modify the FJOD to allow her to buy out defendant's interest in the former marital home and not have to establish the alimony trust.

After the parties sold the former marital home, defendant filed a motion in September 2014 seeking the distribution of the proceeds so as to satisfy plaintiff's obligations under the FJOD, including the establishment of the alimony trust. In response, plaintiff filed a cross-motion to eliminate alimony and vacate the FJOD's requirements for payments toward ED she was obligated to make to plaintiff. In her supporting certification, plaintiff challenged the court's original award of alimony, asking that it be reconsidered and challenged the court's award of ED. Plaintiff did not argue that there had been any change of circumstances since the entry of the FJOD, only that she disagreed with the court's decision. She provided, however, a doctor's letter, that stated she was currently under treatment for Stage I breast cancer and related psychological issues and described her medication and treatment, but did not indicate that she could not continue to work because of her medical condition. The letters were similar to earlier versions of the same letters that pre-dated the FJOD.

The court entered an order on October 10, 2014, granting defendant's motion and denying plaintiff's cross-motion, placing its reasons on the record on the same date. Citing to Lepis v Lepis, 83 N.J. 139 (1980), the court found that plaintiff failed to establish any change in circumstances that would warrant granting the relief she sought in her cross-motion. The court also viewed her application as a "motion for reconsideration" and observed that "the time for . . . reconsideration or appeal has long since lapsed." On October 16, 2014, the court entered an amended order correcting a mistake in the prior order.

Plaintiff filed her motion for reconsideration of the October orders, arguing again that various provisions of the FJOD be altered. In her supporting certification, plaintiff contended that the court failed to take into account in its alimony calculation defendant's potential investment earnings from ED proceeds, his ability to receive his portion of her anticipated monthly pension benefits, and his social security income's increase. She also challenged the court's original imputation of income from her earnings as a real estate salesperson. Plaintiff also claimed that due to her health issues she "certainly cannot not be expected to work a 40 hour week as [she underwent] various medical treatments," but she provided no confirmation from any medical provider that she could not sustain her employment at that level or that she was in fact not working those hours. She also explained to the court her need to purchase a new house, replace her car and pay debts, and once again challenged the court's establishment of the alimony trust.

In response to plaintiff's motion, defendant filed a cross-motion seeking the denial of plaintiff's motion and an award of counsel fees. His certification challenged plaintiff's contentions, especially about her employment. In a reply certification, plaintiff conceded that she continues to work full-time at her position but claimed her income from real estate sales had been misunderstood by the court because she "earned virtually no income for almost three years" from her position.

The court entered its order denying plaintiff's motion after placing its reasons on the record on December 5, 2014. In its oral decision, the court found that plaintiff failed to comply with the requirements for reconsideration set forth in Rule 4:49-2 by not specifying "the matters or controlling decisions which [she] believed the court ha[d] overlooked or to which it ha[d] erred." As noted, the court characterized plaintiff's motion as an attempt to, "by way of a back door, have the Court reconsider its decision for the [FJOD.]" The court also denied plaintiff's application for a stay of the October orders and awarded defendant counsel fees and costs in the amount of $1,500 after reviewing on the record the factors it was required to consider.1

This appeal followed.

Plaintiff's notice of appeal is limited to the December 5, 2014 order, denying her motion for reconsideration. We, therefore, note at the outset that plaintiff's appeal is procedurally barred insofar as it relates to any claimed defect in the court's FJOD or any other order. See R. 2:5-1(f)(3)(A); Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2016) (citing Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994) and W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458-59 (App. Div. 2008)). Plaintiff's brief challenges the reasons for the FJOD's entry by the court, and her appellate case information statement mentions the October orders. However, plaintiff's appellate case information statement does not explicitly state that she is appealing from those orders, and she never filed an appeal from the FJOD. Plaintiff is years past the forty-five-day deadline to appeal from the FJOD. See R. 2:4-1. Therefore, neither the FJOD nor the October orders are subject to our review.2

Turning to the court's denial of plaintiff's reconsideration motion, we review the court's denial of reconsideration only for abuse of discretion. Cummings v. Bahr, 295 N.J. Super. 374, 389, (App. Div. 1996). Reconsideration is "a matter within the sound discretion of the Court, to be exercised in the interest of justice." Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Governed by Rule 4:49-2, reconsideration is appropriate for a "narrow corridor" of cases in which either the court's decision was made upon a "palpably incorrect or irrational basis," or where "it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence." Ibid. (quoting D'Atria, supra, 242 N.J. Super. at 401). This court has also maintained

[a]lternatively, if a litigant wishes to bring new or additional information to the Court's attention which it could not have provided on the first application, the Court should, in the interest of justice (and in the exercise of sound discretion), consider the evidence. Nevertheless, motion practice must come to an end at some point, and if repetitive bites at the apple are allowed, the core will swiftly sour. Thus, the Court must be sensitive and scrupulous in its analysis of the issues in a motion for reconsideration.

[Cummings, supra, 295 N.J. Super. at 384 (quoting D'Atria, supra, 242 N.J. Super. at 401-02).]

Applying our limited standard of review, we conclude that the court did not abuse its discretion by denying plaintiff's motion. We find plaintiff's arguments to the contrary to be without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons expressed by the motion judge in his oral decision.

We also have no cause to disturb the court's award to defendant of counsel fees and costs relative to plaintiff's motion. The fee award was supported by the record, made in accordance with the applicable law, R. 4:42-9, R. 5:3-5, and did not constitute an abuse of discretion. Colca v. Anson, 413 N.J. Super. 405, 422 (App. Div. 2010).

Affirmed.

1 See R. 4:42-9 and R. 5:3-5.

2 Under different circumstances we could exercise our discretion to review the October orders. See Fusco v. Bd. of Educ. of Newark, 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.").