On appeal from Superior County of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FM-10-340-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Baxter.
Plaintiff Patsy Allen Catanzareti appeals from a May 4, 2007 order that, with one exception, denied his motion for reconsideration of a January 12, 2007 order that held him in violation of litigant's rights because of his failure to comply with various portions of the parties' property settlement agreement (PSA).*fn1 We affirm and remand.
The parties were married on November 30, 1974, and were divorced on December 16, 2003. The PSA obligated plaintiff to pay alimony of $235 per week. His payments were made sporadically and defendant was required to file several enforcement motions. The PSA also made provision for the sale of the marital home and four other properties that were accumulated during the marriage. With one exception, the proceeds from the sale of all five were to be divided equally.
In late October 2006, defendant filed a motion for enforcement of her rights under the PSA. In particular, she alleged that plaintiff: (1) reneged on his obligation under the PSA to list the parties' Phillipsburg property for sale; (2) had encumbered both the Phillipsburg and High Bridge properties without her knowledge after the complaint for divorce was filed, thereby improperly reducing her share of the expected proceeds; (3) had paid alimony sporadically; and (4) had accordingly caused her to incur counsel fees to enforce her rights under the PSA. Defendant supported her motion with a detailed certification and numerous exhibits verifying the encumbrances she alleged that plaintiff had improperly lodged against the properties. The motion was filed in late October 2006, but was not heard until January 12, 2007. Despite numerous adjournments of the motion, plaintiff never filed any opposition.
When defendant's motion was decided on January 12, 2007, the judge issued a written statement of reasons. As to the alimony issue, the judge concluded that although plaintiff was not then in arrears on the payment of alimony, he had been so in the past. Accordingly, the judge ordered that a constructive trust in the amount of $85,540 be imposed on plaintiff's share of the proceeds from the eventual sale of the Phillipsburg property, and authorized defendant to make withdrawals from the trust whenever plaintiff's alimony payments were in arrears.
The judge also agreed with defendant's assertion that plaintiff had improperly resisted listing the Phillipsburg property for sale. Accordingly, the judge directed that the property immediately be listed and she specified the realtor with whom the listing agreement should be signed. The judge agreed with defendant that at the time of the eventual sale of the Phillipsburg property, plaintiff's share of the proceeds should be reduced in order to compensate defendant for the mortgages and other encumbrances that plaintiff had improperly placed the on property after the divorce complaint was filed.
As to the proceeds from the sale of the marital home, the court accepted defendant's contention that she had been short-changed as a result of a second mortgage that defendant had obtained against the property without her knowledge and from which she had not benefited. Accordingly, the judge ordered that defendant be reimbursed. The judge made similar findings as to the Union Township, Pohatcong and High Bridge properties and concluded that defendant had been short-changed in the aggregate amount of $145,770. The judge directed plaintiff to pay defendant that amount within sixty days. The January 12, 2007 order also provided that in the event plaintiff failed to make such payment, a judgment would be entered against him with post-judgment interest to run until the judgment was satisfied. The January 12, 2007 order also granted defendant's motion for counsel fees in the amount of $2,630.
Rather than appeal from the January 12, 2007 order, plaintiff chose to file a motion for reconsideration on February 8, 2007. For reasons that are not explained in the record, the motion was not heard until May 4, 2007. After considering oral argument from both sides, the judge denied the motion for reconsideration with the one exception concerning life insurance that we have already explained. In a written statement of reasons accompanying the May 4, 2007 order, the judge explained the reasons for denial of plaintiff's motion for reconsideration. The judge stated:
[Plaintiff] files a motion for reconsideration based on the order entered by this court on January 12, 2007. The motion was filed on February 8, 2007. [Plaintiff] moved the court to consider his certification as if it was a timely response to the original certification filed by [defendant] on which the underlying order was based. The court is not permitted to do this, and must utilize the standard for a motion for reconsideration [of] a post-judgment matter. [Plaintiff] has the burden of demonstrating that the court (1) expressed its decision based upon a palpably incorrect or irrational basis or (2) failed to appreciate the significance of probative, competent evidence. While [plaintiff's] certification is drafted as a certification in response to [defendant's] underlying pleading on which the original order was based, the court will nonetheless consider same as a certification for a motion for reconsideration.
Nothing in [plaintiff's] certification meets the burden set forth in [relevant case law] for a motion for reconsideration. There is no indication that the court based its decision on incorrect or irrational evidence or ...