MABEL MBAH v. DOMINIC MBAH

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1363-18T1

MABEL MBAH,

Plaintiff-Respondent,

DOMINIC MBAH,

Defendant-Appellant.
______________________________

Submitted January 6, 2020 – Decided April 14, 2020

Before Judges Ostrer and Susswein.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FM-13-1333-04.

Dominic Mbah, appellant pro se.

Brenda M. Helt, attorney for respondent.

PER CURIAM

This appeal arises from a post-judgment divorce proceeding. Appellant,

Dominic Mbah, appeals pro se from the denial of his motion in which he claimed
that respondent, Mabel Mbah, never paid him $40,000 for his interest in the

marital home as required by the Judgment of Divorce. Dominic 1 also sought to

forestall enforcement actions against him for his failure to make child support

payments. His request for monetary and equitable relief was heard first by Judge

James McGann and later by Judge Teresa Kondrup-Coyle. Both Family Part

judges found that Dominic's motions were unreasonable and filed in bad faith.

Judge Kondrup-Coyle treated Dominic's second motion as a motion for

reconsideration of Judge McGann's ruling. Dominic now appeals from Judge

Kondrup-Coyle's order, arguing that his application for monetary and equitable

relief was not a motion for reconsideration, that imposition of attorneys' fees

was inappropriate, and that Judge Kondrop-Coyle did not properly consider the

evidence before her.

We have reviewed the record in light of the parties' arguments and legal

principles and affirm Judge Kondrup-Coyle's order substantially for the reasons

set forth in her detailed and well-reasoned written opinion. We agree with both

Family Part judges that Dominic's contentions are without merit.

1
Because the parties have the same last name, we refer to them by their first
names in order to avoid confusion.

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I.

The procedural history and relevant facts are explained in Judge Kondrup-

Coyle's written opinion and need only be briefly summarized in this opinion.

Dominic and Mabel divorced in 2005. The Judgement of Divorce required

Mabel to pay Dominic $40,000 for his interest in the marital home.

Over the years, Dominic accrued over $24,000 in unpaid child support. In

January 2018, the Monmouth County Probation Division notified Dominic that

unless he contacted the Division within ten days, the Division would apply for

a bench warrant based on his failure to pay child support. Eleven days after

receiving that notice, Dominic filed a motion before Judge McGann claiming

Mabel never paid the $40,000 owed to him under the Judgment of Divorce.

Specifically, the motion requested: 2 (1) that Mabel pay Dominic $40,000

awarded in the 2005 Judgment of Divorce plus interest of $8094.69, for a total

of $48,094.69; (2) that Mabel deduct the outstanding $24,707 in child support

from the payment; (3) that the court vacate the child support order; (4) that the

court emancipate the child at issue; (5) that the court vacate any and all warrants

of arrest; (6) that the court order reinstatement of Dominic's driver's license; and

2
We reproduce all of the specific claims Dominic made in his initial and second
motions to show the overlap and similarity between the two motions.
A-1363-18T1
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(7) that the court direct Monmouth County Probation, Child Support

Enforcement Unit to terminate any and all enforcement actions.

Mabel filed a cross motion seeking an order directing Dominic to pay

outstanding child support and the legal fees she incurred responding to his

motion.

Judge McGann held a hearing on the motion and cross motion. He denied

most of the relief Dominic sought, 3 explaining his findings and reasons in an

oral decision. After finding the gist of Dominic's motion was unreasonable,

Judge McGann awarded Mabel $2000 in attorneys' fees based on "bad faith" by

Dominic.

Approximately four months later, Dominic filed another motion before

Judge Kondrup-Coyle. In this motion defendant requested: (1) that Mabel pay

Dominic $40,000 plus $8175.69 in interest, totaling $48,175.69; (2) the court

vacate the portion of Judge McGann's order awarding Mabel $2000 in counsel

fees; (3) the court direct Monmouth County Probation, Child Support

Enforcement Unit to suspend enforcement of the child support account and

provide the court and Dominic with an audit report; (4) the court void the deed

3
The court granted Dominic's request to emancipate the child, which appears
to have already happened, and suspended enforcement of child support arrears
until April 10, 2018.
A-1363-18T1
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to the marital house prepared by Mabel's attorney, dated October 7, 2005,

because defendant's signature was forged and his divorce attorney,

acknowledged defendant's signature without his "Power of Attorney and/or my

consent;" (5) the court void the transfer of the marital home as a fraudulent

transfer; (6) the court void any mortgage loans on the marital home; (7) the court

direct Mabel's attorney, provide proof of the payment of $40,000 for the house,

including "copies of the canceled checks, her Attorney Trust and Business

Accounts, other proof, etc.;" (8) the court refer Mabel's attorney to the Attorney

Ethics Committee for disciplinary action and to the Monmouth County

Prosecutor's Office for "criminality in colluding and conspiring in fraudulent

transfer" of the marital home; (9) the court direct his attorney to produce his full

accounting records from May 1, 2005, to December 31, 2005, including his

"Attorney Trust and Business Accounts showing the deposited monies

amounting to $40,000, received from" Mabel's attorney, "and to produce copies

of the Power of Attorney if any from me to him authorizing him to sign my name

on the Deed transferring my legal and marital interests…and any other pertinent

documents relating to the transfer and the $40,000;" (10) the court refer his

attorney to the Attorney Ethics Committee for disciplinary action and to the

Monmouth County Prosecutor's Office for "criminality in colluding and

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conspiring in fraudulent transfer" of the marital home; and (11) to direct the

Monmouth County Clerk's Office to void and remove various documents

relating to the marital home.

As we have noted, Judge Kondrup-Coyle treated defendant's motion as a

motion to reconsider Judge McGann's ruling in the prior motion. On October 9,

2018, she issued a written order denying defendant's motion in its entirety. She

also denied Mabel's request for an order directing Dominic to pay all support

arrears immediately and denied her request to have Dominic incarcerated until

he pays his support obligation. She granted Mabel's request to order Dominic

to pay the $2000 in legal fees that had been ordered by Judge McGann, and she

awarded additional attorneys' fees in the amount of $2400 to reimburse Mabel

for the cost of responding to Dominic's second motion.

II.

Dominic raises the following contentions for our consideration:

POINT I

THE TRIAL COURT ERRED BY
MISCHARACTERIZING MY NEW MOTION AS [A]
MOTION FOR RECONSIDERATION.

PONT II

THE TRIAL COURT ERRED IN LAW AWARDING
COUNSEL FEE[S] BECAUSE OF THE UNCLEAN

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HANDS OF COUNSEL AND [MABEL]; AND
[DOMINIC'S DIVORCE ATTORNEY].

POINT III

[THE] TRIAL COURT ABUSED ITS DISCRETION
AND ERRED IN LAW BY ITS FAILURE TO
REVIEW EVIDENCE AND ISSUES PRESENTED.

III.

We begin our analysis by acknowledging the legal principles governing

this appeal, looking first to the standards of review we must apply to various

aspects of this matter. Appellate courts review a trial court's decision on a

motion for reconsideration under the abuse of discretion standard. Del Vecchio

v. Hemberger, 388 N.J. Super. 179, 189 (App. Div. 2006) (citations omitted)

("As a further matter, we find no abuse of discretion by the judge in denying

reconsideration pursuant to [Rule] 4:49-2 of his initial decision."). The abuse

of discretion standard also applies when an appellate court reviews a trial court's

decision to grant attorneys' fees. Rendine v. Pantzer, 141 N.J. 292, 317 (1995)

("Our expectation is that [attorneys' fee] determinations by trial courts will be

disturbed only on the rarest occasions, and then only because of a clear abuse of

discretion.").

Generally, "an abuse of discretion [occurs] when a decision is 'made

without a rational explanation, inexplicably departed from established policies,

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or rested on an impermissible basis.'" U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123

(2007)).

The standard of review on Dominic's claim that the trial court failed to

consider evidence and issues before it is guided by Rova Farms Resort, Inc. v.

Investors Insurance Company of America, 65 N.J. 474, 484 (1974). Generally,

"[f]indings by the trial judge are considered binding on appeal when supported

by adequate, substantial and credible evidence." Ibid. Further, appellate courts

will not disturb the factual findings or legal conclusions of a trial judg e unless

the court is convinced the findings are "so manifestly unsupported by or

inconsistent with the competent, relevant and reasonably credible evidence as to

offend the interests of justice." Ibid. (quoting Fagliarone v. Twp. of N. Bergen,

78 N.J. Super. 154, 155 (App. Div. 1963)).

IV.

We next apply these legal principles to Dominic's contentions.

Specifically, we address Dominic's arguments regarding Judge Kondrup-Coyle's

decision on his motion for reconsideration, the sufficiency of the evidence

supporting the judge's conclusion that Mabel paid Dominic $40,000, and both

judges' decisions to award Mabel attorneys' fees.

A-1363-18T1
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A.

We first address Dominic's contention that the trial court improperly

treated his second motion as a motion for reconsideration because his new

motion raised multiple new issues. After reviewing both the record and Judge

Kondrup-Coyle's thorough and cogent opinion, we conclude she did not commit

error in treating defendant's second motion as a motion for reconsideration based

on two grounds: (1) another Family Part judge had recently addressed an almost

identical motion, and (2) the second motion asked the court to vacate the earlier

order.

Dominic argues that his second motion was made pursuant to Rule 4:49-

1(a), which provides:

A new trial may be granted to all or any of the parties
and as to all or part of the issues on motion made to the
trial judge. On a motion for a new trial in an action
tried without a jury, the trial judge may open the
judgment if one has been entered, take additional
testimony, amend findings of fact and conclusions of
law or make new findings and conclusions, and direct
the entry of a new judgment. The trial judge shall grant
the motion if, having given due regard to the
opportunity of the jury to pass upon the credibility of
the witnesses, it clearly and convincingly appears that
there was a miscarriage of justice under the law.

The rule governing motions for reconsideration provides:

A-1363-18T1
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Except as otherwise provided by [Rule] 1:13-1 (clerical
errors) a motion for rehearing or reconsideration
seeking to alter or amend a judgment or order shall be
served not later than 20 days after service of the
judgment or order upon all parties by the party
obtaining it. The 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, and
shall have annexed thereto a copy of the judgment or
order sought to be reconsidered and a copy of the
court's corresponding written opinion, if any.

[R. 4:49-2.]

Taking all of the relevant circumstances pertaining to this litigation into

account, we believe Dominic's second motion is more analogous to a Rule 4:49-

2 motion than a Rule 4:49-1(a) motion. Notably, the second motion sought

similar if not nearly identical relief to that which Dominic sought in the first

motion. In both motions, Dominic claimed he was never paid $40,000 for his

interest in the marital home and requested the court terminate the child support

enforcement actions. Furthermore, his second motion expressly included a

request to vacate Judge McGann's order. That circumstance alone shows that

this was a request to revisit the previous order. See Baumann v. Marinaro, 95 N.J. 380, 390 (1984) ("[A] motion to alter and amend under [Rule] 4:49 -2

includes a motion to vacate.").

A-1363-18T1
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The fact that Dominic made additional allegations in his second motion

does not change the fundamental character of that motion as an attempt to g et a

"second bite" at the claims Judge McGann rejected. Fusco v. Bd. of Educ. of

Newark, 349 N.J. Super. 455, 463 (App. Div. 2002). These additional

allegations, which are serious accusations of professional misconduct made

against the lawyers on both sides in the divorce proceeding, relate to the

disposition of the marital home. Accordingly, these additional claims are

integrally connected to Dominic's foundational claim regarding the payment of

the $40,000. We therefore conclude that Judge Kondrup-Coyle did not err in

treating Dominic's second motion as a motion for reconsideration under Rule

4:49-2.

We next address Dominic's contention that Judge Kondrup-Coyle erred by

denying his motion. We reject that contention as well. As we have already

noted, Judge Kondrup-Coyle provided a detailed explanation of her reasoning.

We conclude that she did not abuse her discretion in rejecting Dominic's various

contentions.

A motion for reconsideration is not a chance to get "a second bite of the

apple." Fusco, 349 N.J. Super. at 463. Further, "[r]econsideration is a matter

A-1363-18T1
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within the sound discretion of the Court, to be exercised in the interest of

justice." D'Atria v. D'Atria, 242 N.J. Super. 393, 401 (Ch. Div. 1990).

Reconsideration is appropriate in two circumstances: (1) when the court's

decision is "based upon a palpably incorrect or irrational basis," or (2) when "it

is obvious that the [c]ourt either did not consider, or failed to appreciate the

significance of probative, competent evidence." Cummings v. Bahr, 295 N.J.

Super. 374, 384 (App. Div. 1996) (quoting D'Atria, 242 N.J. Super. at 401).

When a litigant is dissatisfied with a court's decision, reconsideration is not

appropriate; rather, the litigant should pursue an appeal. D'Atria, 242 N.J.

Super. at 401.

We further note that a court, in the interest of justice, can consider new

information a litigant brings to the court's attention provided the litigant could

not have produced the information in the first motion. Ibid. A motion for

reconsideration is not "a vehicle to introduce new evidence in order to cure an

inadequacy in the motion record." Capital Fin. Co. of Del. Valley v. Asterbadi,

398 N.J. Super. 299, 310 (App. Div. 2008) (citing Cummings, 295 N.J. Super.

at 384).

Judge Kondrup-Coyle in her opinion first noted found that the motion was

well outside the twenty-day time limit established by Rule 4:49-2. Next, she

A-1363-18T1
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observed that this motion did not fall into either of the two narrow categories

set forth in Cummings. Furthermore, she held that Dominic presented no

evidence that Judge McGann's decision was based on plainly incorrect

reasoning, or that he failed to consider evidence presented at the hearing on the

first motion. Judge Kondrup-Coyle concluded that Judge McGann properly

considered all of the evidence that defendant had presented to him.

Judge Kondrup-Coyle next addressed the fact-sensitive contentions that

Dominic had not raised in his first motion. She concluded, correctly, that the

new information and arguments related to the core of defendant's initial claim.

She noted, for example, that the new contentions were "nothing more than

evidence of why [ordering payment of $40,000 plus interest] should be

reconsidered." She continued, "[t]hese are serious accusations presented by

[Dominic], leaving this court to wonder why they were not raised in [his] first

motion months prior to this order."

Ultimately, Judge Kondrup-Coyle embraced Judge McGann's finding that

Dominic's accusations are meritless, in part because they were first brought to

the court's attention thirteen years after the alleged events. Given her thorough

analysis of the relevant facts and applicable principles of law, which we describe

A-1363-18T1
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in greater detail in the next section of this opinion, we conclude that Dominic

has failed to establish an abuse of discretion warranting appellate intervention.

We turn next to Dominic's assertion that Judge Kondrup-Coyle did not

consider the evidence relevant to his contention that he had not been paid th e

$40,000 owed to him under the Judgment of Divorce. That contention is

unsupported by the record.

The evidence in the record justifies the judges' skepticism of Dominic's

belatedly raised claims and supports their determination that Dominic received

the $40,000 payment ordered by the Judgment of Divorce. Judge McGann

reviewed evidence indicating that Mabel obtained loans for the purpose of

paying off the original mortgage, removing Dominic from the mortgage, and

making the $40,000 payment under the Judgment of Divorce. Additionally,

Mabel certified that Dominic would execute the deed and move out of the

marital home after she paid him the $40,000. She further certified that Dominic

both signed the deed and moved out of the marital home. These circumstances

support the judge's finding that Mabel paid Dominic the $40,000 required under

the Judgment of Divorce.

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Judge Kondrup-Coyle had the benefit of additional direct evidence that

Mabel paid Dominic. The record developed for the second motion includes

copies of checks made out to him in the relevant time frame.

As we have noted, a trial judge's findings are considered binding on an

appellate court when supported by "adequate, substantial and credible

evidence." Rova Farms, 65 N.J. at 484. We should not disturb those findings

unless "we are convinced that they are so manifestly unsupported by or

inconsistent with the competent, relevant and reasonably credible evidence as to

offend the interests of justice." Ibid. (quoting Fagliarone, 78 N.J. Super. at 155).

In this instance, Judge Kondrup-Coyle acted well within her discretion in

accepting Mabel's sworn statements, loan documentation, and an attorney's

certification and checks showing Dominic had received payment.

VI.

Finally, we address the matter of attorneys' fees. In Family Part actions,

a court can award counsel feels pursuant to N.J.S.A. 2A:34-23, Rule 4:42-

9(a)(1), and Rule 5:3-5. We conclude that both Judge McGann and Judge

Kondrup-Coyle correctly applied the statute and court rules. Judge Kondrup-

Coyle carefully explained her reasons for upholding the attorneys' fees awarded

by Judge McGann and for awarding additional fees relating to the Dominic's

A-1363-18T1
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second motion. Both judges determined Dominic's motions lacked credibility,

were unreasonable, and were made in bad faith.

Appellate courts should only disturb attorneys' fee determinations on "the

rarest occasions." Rendine, 141 N.J. at 317. The record before us clearly shows

that neither judge made their decision without a rational explanation, nor did

either judge depart from established policies. U.S. Bank Nat'l Ass'n, 209 N.J.

at 467. We therefore affirm the award of attorney fees.

Any contentions made by Dominic that we have not addressed in this

opinion lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.

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