LAURIE NUSSBAUM v. ALAN NUSSBAUM

NOT FOR PUBLICATION WITHOUT THE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-0988-16T3

LAURIE NUSSBAUM,

        Plaintiff-Respondent,

v.

ALAN NUSSBAUM,

     Defendant-Appellant.
_______________________________

              Submitted March 1, 2018 – Decided May 23, 2018

              Before Judges Rothstadt and Gooden Brown.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Middlesex
              County, Docket No. FM-12-1702-05.

              George G. Gussis, attorney for appellant.

              Mandelbaum   Salsburg,   PC,   attorneys   for
              respondent (Elisabete M. Rocha, on the brief).

PER CURIAM

        In this post-judgment dissolution action, defendant Alan

Nussbaum appeals from the portions of the Family Part's October

14, 2016 order that denied his motion, without prejudice, to vacate

an earlier order regarding the payment of a debt and to compel
plaintiff, Lori Nussbaum, to reimburse defendant for a portion of

their children's college expenses.        The motion judge denied the

application   because   he   found   defendant   did   not   satisfy   the

requirements of Rule 4:50-1, and defendant failed to raise his

claim in earlier motions when the court addressed the issue of

college expenses.

     On appeal, defendant contends that the motion judge ignored

a 2005 pendente lite order finding the debt to be jointly owed by

the parties, and erred by requiring him to reimburse plaintiff for

the full amount of the debt, which could have been compromised at

a lesser amount if paid earlier.         He also argued that the judge

improperly denied his motion for college cost reimbursement and

considered an uncertified certification from plaintiff in deciding

the motion.   We find no merit to these contentions and affirm.

     The facts set forth in the motion record are summarized as

follows.   The parties married in 1989.      Two children were born to

the parties, a son in 1990 and a daughter in 1992.           The marriage

ended on July 25, 2007 when the court entered a final judgment of

divorce (FJOD) that incorporated the parties' marital settlement

agreement (MSA).    The agreement required the parties to pay for

their children's college expenses "in proportion to the parties'

then income."   As to their debts, the MSA stated that upon the

sale of the former marital premises, they would "pay any and all

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credit card bills as of the date of the . . . [c]omplaint for

[d]ivorce" and they would each "be responsible for any and all

credit card debt they incur[red] in their own name and shall hold

each other harmless from any debt they have created in each other's

name since the filing of the [c]omplaint for [d]ivorce."

     Earlier, on May 17, 2005, the court entered a pendente lite

order denying plaintiff's request that defendant pay a debt owed

to the Bank of New York (BNY), which totaled $6992.65 "because [it

was] a marital debt."

     After the entry of the FJOD, the parties engaged in extensive

motion practice that resulted in numerous orders, including orders

that addressed both the BNY debt and their children's college

expenses.   In   response   to   a   motion   filed   by   plaintiff   that

defendant opposed through counsel, the court issued a December 19,

2014 order that established a seventy-nine percent to twenty-one

percent allocation of the costs associated with a college summer

program that their daughter attended before she was emancipated,

and directed defendant to reimburse plaintiff for the expense in

accordance with earlier orders.          Although defendant opposed the

motion that led to the order, he never filed a cross-motion seeking

reimbursement for any college expenses he paid through 2014.

     In 2015, plaintiff filed motions addressing the BNY debt that

had been reduced to a judgment only against plaintiff and in favor

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of BNY's successor, First American Accepco.      Each of her motions

were served on defendant's counsel who had opposed plaintiff's

earlier motion about the college summer program expense.

     In response to plaintiff's first motion about the debt, on

May 8, 2015, the court considered plaintiff's written submissions

and denied plaintiff's unopposed motion for defendant to pay the

outstanding BNY debt.    The court found that plaintiff's proofs

were insufficient to establish defendant's liability.

     Plaintiff filed a motion for reconsideration that the court

also denied without prejudice on July 10, 2015.    The court's order

noted that defendant had not filed any written opposition, but

that he was represented by counsel and that the court considered

oral argument before deciding the motion.1    The order continued by

stating that plaintiff's motion was untimely, but granted her

permission to file another motion based on the new documents she

supplied with her reconsideration motion.     In the same order, the

court observed that it had "learned that [d]efendant lives in New

York and works in Connecticut."       Based on that information, the

court imposed a monetary sanction against defendant for his failure

to reimburse plaintiff for the college expense it previously

ordered him to pay.   No appeal was ever filed from that order.


1
  We have not been provided with transcripts from any oral argument
relating to any motion that we discussed in this appeal.

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     Plaintiff followed the court's instruction and on July 27,

2015, filed another motion regarding the BNY debt, on notice to

defendant's attorney who appeared at the last motion.                  In the

court's September 1, 2015 order granting plaintiff's motion, the

court directed that defendant pay to plaintiff $12,543.74, the

amount of the BNY judgment entered against plaintiff.               The order

stated that copies of the court's order as prepared by the court

were "faxed and mailed to the parties or their . . . counsel[.]"

Defendant never appealed from the order.

     Three days later, the court entered another order in response

to plaintiff's unopposed motion dealing again with the amount

still not paid by defendant for their daughter's college summer

program expense.     In that order, the court noted defendant was

represented by counsel.        It then totaled the amount owed, which

included defendant's accumulated sanctions per its earlier order,

and directed it be collected by the probation department as child

support at the rate of $1000 per month.

     Plaintiff then filed an action in the Law Division's Special

Civil   Part   seeking   to   have   the   amount   owed   by    defendant    to

plaintiff for the BNY debt, as ordered by the Family Part, reduced

to a judgment in her favor. When defendant defaulted by not filing

an answer, the Special Civil Part conducted a proof hearing at

which plaintiff and defendant's counsel appeared.               On October 22,

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2015, the Special Civil Part entered a judgment in plaintiff's

favor as she requested.          Defendant did not appeal from that

judgment.

     On May 10, 2016, plaintiff filed a motion relative to the

arrears owed to her for alimony and child support.                  Defendant

opposed the motion, without counsel.               Neither party raised any

issues as to the court's earlier orders dealing with the BNY debt

or the college expense.      The court entered an order on June 10,

2016 addressing the relief sought by plaintiff.               The order also

stated that all "previous [o]rders not altered by this [o]rder

remain in effect[.]"

     Defendant filed a motion on August 23, 2016 asking the court

to vacate the court's September 1, 2015 order as to the BNY debt,

and to require plaintiff to pay half the debt and cooperate in the

negotiation of a lower payoff amount, giving credit to defendant

for an amount he claimed to have already paid.                Defendant also

sought an order compelling plaintiff to pay to him twenty-one

percent   of   "the    parties   now   emancipated      children's    college

expenses including tuition and living expenses in the amount of

$61,889.47."     In    support   of    his   motion,    defendant    filed     a

certification   that    stated   he    was   not    served   with   copies    of

plaintiff's motions.       He stated that between April and August

2015, his employment required that he temporarily relocate his

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residence to a hotel in Milford, Connecticut.        According to

defendant, he did not receive copies of plaintiff's motions filed

in 2015 that resulted in the court's May, July and September 2015

orders.    He acknowledged that plaintiff served him through his

"prior attorney," who "could not get in touch with" him, causing

the motions to be unopposed.     As to the Special Civil action,

defendant stated that he was "not properly noticed" and only found

about that court's order "earlier this year[.]"

     As to the BNY debt, defendant certified that in the court's

May 2005 order, it previously determined the BNY debt was a marital

debt.     Defendant addressed the history of the BNY debt, noting

that in 2005 the creditor was willing to accept less than the

amount owed, and that he paid his share of that amount, but

plaintiff did not pay hers.    Defendant concluded by arguing that

the debt was a joint debt and he should not have been burdened

with paying the full amount.

     Turning to the tuition reimbursement and relying on the

court's December 9, 2014 order, defendant detailed the alleged

costs for the children's college, calculated his estimate of the

children's shelter costs that his child support supported, added

it to the college bills and demanded that plaintiff be held

responsible for twenty-nine percent of the total or $66,011.12.



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     In her response to defendant's motion, plaintiff noted that

defendant had to have been aware of the motion and the judgment

in the Special Civil Part because she spent the day in court with

defendant's   attorney   when   the   judgment   against   defendant   was

entered.    Moreover, she noted that while the children were in

college, she was a homemaker and did not work so there was no

income to attribute to her for purposes of calculating college

expenses, as she did when the December 2014 order was entered.

Also, according to plaintiff, the children's college expenses had

been paid from jointly funded college accounts and defendant's

belated    claims that he paid expenses from his income was untrue

as the money came from that fund.

     On October 14, 2016, the court entered its order, denying

without prejudice, defendant's motion.           The court's order set

forth its reasons for its decision.       It identified the provisions

under Rule 4:50-1 that would support an application to vacate and

then explained why defendant failed to satisfy the Rule.         Quoting

the Rule and the Supreme Court's opinion in Housing Authority of

Morristown v. Little, 
135 N.J. 274 (1994), it stated that despite

defendant's contention that he did not receive notice of the

motions that led to the September 1, 2015 order, he "fail[ed] to

show 'mistake, inadvertence, surprise, or excusable neglect' [and]

that the relief requested will result in "extreme" and "unexpected"

                                      8                          A-0988-16T3
hardship."    The order also stated that the court would not require

plaintiff to pay half the BNY debt because she satisfied the court

and the Special Civil Part through evidence that the debt belonged

to defendant.      Moreover, "[d]efendant fail[ed] to provide any

proof of [any] payments [he made] toward the [d]ebt."

     Addressing defendant's demand for reimbursement for college

and living expenses, the court stated that it had determined the

parties' responsibility for college expenses in December 2014 was

based on their income at that time and that defendant's claims now

addressed expenses incurred earlier, while their son and daughter,

who graduated in 2012 and May 2014 respectively, were still in

college.    The order stated the appropriate time to have raised any

issues about college expenses was in response to plaintiff's

motions    that   resulted   in   orders   in    December   2014,   July   and

September 2015.     Moreover, the court found "[p]laintiff would be

prejudiced by an order to reimburse [d]efendant for approximately

$67,000 after such delay."        This appeal followed.

     "Our review of the Family Part's determination in dissolution

matters is limited. We accord deference to decisions of the Family

Part based on its expertise in matrimonial matters."            Lombardi v.

Lombardi, 
447 N.J. Super. 26, 32-33 (App. Div. 2016) (citing Cesare

v. Cesare, 
154 N.J. 394, 412 (1998)).           For that reason, "[w]e will

not disturb its decisions if they are supported by substantial

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credible evidence and are consistent with applicable law."                         Id.

at 33 (citing Cesare, 
154 N.J. at 412).                  "However, we owe no

special deference to the court's legal conclusions." Ibid. (citing

D.W. v. R.W., 
212 N.J. 232, 245-46 (2012)).

     Applying      our     deferential       standard,       we    conclude       that

defendant's arguments on appeal "are without sufficient merit to

warrant discussion in a written opinion[.]"                  R. 2:11-3(e)(1)(E).

We affirm substantially for the reasons expressed in the Family

Part's order.      We add only the following comments.

     Defendant's         assertions     about    not     being          served    with

plaintiff's motions are belied by the record.                  We agree with the

trial    court's   conclusion       that    defendant    was      properly       served

through counsel who appeared for argument on defendant's behalf,

even though defendant was temporarily relocated to a hotel out of

state.     Service on defendant's attorney was consistent with our

court rules.       See R. 1:5-2; see also Van Horn v. Van Horn, 
415 N.J. Super. 398, 413 (App. Div. 2010).           Moreover, there is nothing

in the record to refute the court's orders' reference to defendant

being     represented     by   counsel,      other    than     defendant's        bald

assertions, unsupported by his former attorney's affidavit or

certification.      Significantly, defendant does not dispute that he

opposed    plaintiff's     motion     for   reimbursement         for   the   college

summer expense that the court ordered.               Yet, he never raised any

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issue about the tens of thousands of dollars he sought to be

reimbursed from plaintiff for college expenses during four years

of proceedings, while their children were still in college.

     Even if defendant had a viable claim for reimbursement as he

argued in 2016, the trial court properly denied his motion because

although he attempted to establish the amount of the children's

college expenses, he made no effort to address the parties' incomes

during the period the expenses were incurred, as contemplated by

the MSA.

     Affirmed.




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