D.M. v. K.M.

NOT FOR PUBLICATION WITHOUT THE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-3805-15T1

D.M.,

        Plaintiff-Respondent,

v.

K.M.,

     Defendant-Appellant.
————————————————————————————————

              Submitted October 24, 2017 – Decided November 9, 2017

              Before Judges Reisner and Hoffman.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Cape May
              County, Docket No. FM-05-0045-09.

              K.M., appellant pro se.

              Hankin, Sandman, Palladino & Weintrob, PC,
              attorneys for respondent (Amy R. Weintrob, on
              the brief).

PER CURIAM

        Defendant appeals from the February 23, 2016 Family Part

order denying reconsideration of the court's October 8, 2014 and
December 16, 2014 orders.
1 The October 8, 2014 order dismissed

the remand of defendant's motion seeking college contribution from

plaintiff.   The December 16, 2014 order granted plaintiff the tax

exemption    for   both   children       and    terminated   child   support

retroactively to May 2, 2014.        We affirm.

     In December 2010, plaintiff and defendant divorced after

seventeen years of marriage.     They have two children, a daughter

born in 1992 and a son born in 1996.           The parties signed a property

settlement agreement (PSA), which the court incorporated into

their final judgment of divorce.           The PSA provided the parties

would address the issue of contribution toward college expenses

at the time their children entered college, based on the factors

set forth in Newburgh v. Arrigo, 
88 N.J. 529 (1982).           The PSA also


1
  While defendant's notice of appeal lists all three orders, only
the February 23, 2016 order denying reconsideration properly
appears before us. Defendant filed her notice of appeal and motion
for leave to appeal out of time on May 9, 2016 seeking to appeal
all three orders. Ninety-two days expired between the October 8,
2014 order and defendant's motion for reconsideration. Twenty-
three days expired between the December 16, 2014 order and
defendant's motion for reconsideration. The time for appeal tolled
while the reconsideration motion remained pending.      The trial
court dismissed the reconsideration motion on February 23, 2016,
but defendant did not file her notice of appeal until May 9, 2016
— seventy-five days later. We granted defendant's leave to appeal
out of time for the February 23, 2016 order only. Thus, defendant
failed to timely appeal from the October 8, 2014 and December 16,
2014 orders. See R. 2:4-1; see also R. 2:4-3; see also R. 2:4-
4(a). Accordingly, we limit our review to the February 23, 2016
order denying reconsideration.


                                     2                               A-3805-15T1
required plaintiff to pay $100 per week in child support and

allowed each party to claim a tax exemption for one child.

      Plaintiff   owned    several    businesses        during   the   marriage.

Defendant alleges plaintiff issued the parties' children payroll

checks from one of his businesses and deposited that money into a

college fund for the children. Defendant further alleges plaintiff

actually used the college fund containing the children's money

rather than his own money to pay the college expenses.

      When the parties' daughter started college, defendant paid

the   first   three     semesters,    then      filed   a   motion     requesting

reimbursement from plaintiff and contribution for future college

expenses.     The trial court dismissed this motion and defendant

appealed.     On appeal, we found the trial court improperly denied

college contribution based solely on the fact that defendant

requested reimbursement after she paid the expenses.                       D.M. v.

K.M., No. A-3301-12 (App. Div. May 23, 2014) (slip op. at 8).                     We

therefore reversed and remanded to the trial court to perform a

full Newburgh analysis.       Ibid.

      On remand, the trial court dismissed defendant's motion after

she refused to testify at a plenary hearing scheduled to gather

evidence relating to the Newburgh factors.              In addition, the trial

court   ordered   the    termination       of   child   support      and   granted

plaintiff the right to claim the tax exemptions for both children

                                       3                                    A-3805-15T1
after plaintiff agreed to pay all college expenses for both

children.

     On this appeal, defendant argues the trial court erred in

considering       the   children's   money    from     the   college   fund    as

plaintiff's contribution, and therefore erred in terminating child

support   and     granting   plaintiff     the   tax    exemptions     for   both

children.

     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.) (quoting D'Atria v. D'Atria, 
242 N.J. Super. 392, 401

(Ch. Div. 1990)), certif. denied, 
195 N.J. 521 (2008).

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

Court has expressed its decision based upon a palpably incorrect

or irrational basis, or (2) it is obvious that the Court either

did not consider, or failed to appreciate the significance of

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

                                      4                                  A-3805-15T1

349 N.J. Super. 455, 462 (App. Div.) (quoting D'Atria, supra, 
242 N.J. Super. at 401), certif. denied, 
174 N.J. 544 (2002); see also

R. 4:49-2.    Trial courts should grant motions for reconsideration

"only under very narrow circumstances."       Ibid.

     The trial court dismissed the motion for reconsideration

because defendant filed the motion at least one day late, even

accepting defendant's contention that she did not receive the

underlying orders until December 18, 2014.         The court also noted

defendant failed to identify any information that the court failed

to consider in its original decision.

     We agree with the trial court's conclusion that defendant

filed her motion for reconsideration late.          See R. 4:49-2.      In

addition, even if the trial court had decided the motion on the

merits, we conclude the ultimate outcome would have been the same,

as defendant failed to present any valid basis for the trial court

to grant reconsideration in her favor.

     Before us, defendant argues the trial court "made an egregious

error . . . by ruling the payroll [checks] issued to the parties'

daughter     belonged   to   the   [p]laintiff."      Defendant   alleges

plaintiff deposited the children's payroll checks into a college

fund in his name, and therefore the college fund belongs to the

children rather than plaintiff.      However, the record indicates the



                                     5                            A-3805-15T1
parties settled this issue as part of the PSA, which distributed

the college fund to plaintiff.

      The trial court denies taking any position on the payroll

checks issued to the children during a September 30, 2014 hearing.

The trial court scheduled the September 30, 2014 hearing to allow

the   parties   to    present      evidence      regarding     their   respective

contributions,       the    children's        contributions,    and    the    other

Newburgh factors.          However, when defendant refused to testify at

that hearing, she deprived the court of the ability to garner the

evidence necessary to determine the Newburgh factors, and then

address the issue of contribution for college expenses.                        As a

result, the trial court dismissed defendant's motion.

      Defendant further argues the trial court based its decision

to terminate child support and grant plaintiff the tax exemptions

for both children on the determination that the college fund

belonged to plaintiff. However, we note the trial court's December

16, 2014 order terminating child support and granting plaintiff

the   tax   exemptions       for   both   children     explicitly      references

plaintiff's agreement to pay the remainder of his daughter's

college expenses.

      Plaintiff argues the PSA distributed the college fund to him,

therefore the parties decided the issue of who owned the college

fund in 2010 when the parties divorced.              We agree.    While the PSA

                                          6                                  A-3805-15T1
does not specifically address the college fund by name, it does

state that each party shall "retain his or her own personal bank

accounts . . . as their respective separate property."                     It also

states any asset not specifically set forth in the agreement shall

remain the property of that party.

      Defendant asserts the college fund was not a marital asset

that could have been distributed in the PSA.                  However, defendant

identifies   account      33-xxxxxx-7       as    the   college   fund,    and    an

equitable distribution summary she provided includes that account

number.   The summary states each party was entitled to half of the

$42,230 in account 33-xxxxxx-7, and distributed the entire account

to   plaintiff.     The    record    clearly        demonstrates     the   parties

previously decided the issue of ownership of the college fund as

part of their divorce seven years ago.

      In addition, defendant argues the trial court failed to

consider the tax issues regarding the children's college fund and

payroll   checks.         However,    in         addressing    the   motion      for

reconsideration, the trial judge specifically instructed plaintiff

to submit evidence that defendant knew of the tax issues prior to

the September 30, 2014 hearing and allowed defendant to respond.

After reviewing these submissions, the judge determined this was

not a new issue as the court previously considered it; therefore,

reconsideration was inappropriate on this basis.

                                        7                                   A-3805-15T1
     Defendant   failed   to   show       the   trial   court   committed   an

egregious error or that the trial court failed to consider material

evidence. We conclude the trial court did not abuse its discretion

in denying reconsideration.

     Affirm.




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