March 26, 2008
PATSY ALLEN CATANZARETI, PLAINTIFF-APPELLANT,
DEBRA LEE CATANZARETI, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 10, 2008
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 failed to take into account probative, competent evidence.
On appeal, plaintiff argues: (1) the court erred in failing to order mediation of the disputes respecting the sale of the various properties because the PSA clearly provides for mediation; (2) the disputed issues of fact should not have been resolved in the absence of a plenary hearing; and (3) the trial court erred when it denied his motion for reconsideration.
Before beginning our review of plaintiff's claims, we pause to consider a substantial defect in plaintiff's notice of appeal. In that notice, he specifies that he appeals from the May 4, 2007 order "together with the underlying order entered January 12, 2007." Plainly, he is out of time to challenge on appeal the January 12, 2007 order. Rule 2:4-3(e) provides that when a party files a motion for reconsideration in the trial court, the running of the time for taking an appeal "shall be tolled." The rule further provides that "[t]he remaining time shall again begin to run from the date of the entry of an order disposing of such a motion." R. 2:4-3(e).
When the tolling provisions of that rule are applied here, it becomes clear that a total of seventy-two days elapsed between the entry of the January 12, 2007 order and the filing of plaintiff's June 18, 2007 notice of appeal in which he challenges the validity of the January 12, 2007 order. In particular, twenty-seven days elapsed between the entry of the order on January 12 and when plaintiff filed his reconsideration motion on February 8; the time was tolled from February 8 through May 4, when the reconsideration motion was heard; the time for appeal began to run again on May 4 when the motion was decided; and forty-five days elapsed between May 4 and June 18 when the notice of appeal was filed. The seventy-two days between the January 12, 2007 order and the June 18, 2007 filing of plaintiff's notice of appeal vastly exceed the forty-five day limit established by Rule 2:4-1(a). Accordingly, plaintiff is barred from challenging on appeal the provisions of the underlying January 12, 2007 order. Application of the time bar is especially appropriate here, where the party, for unexplained reasons, failed to file opposition to the motion that gave rise to the January 12 order.
When we raised this issue at argument, plaintiff responded, in effect, that it did not matter if he was barred from directly challenging the January 12, 2007 order because he remains entitled to challenge the provisions of the January 12, 2007 order as part of his appeal from the May 4, 2007 order denying reconsideration. Stated differently, he contends that his appeal from the May 4, 2007 order necessarily triggers a review of the correctness of the underlying order. Plaintiff's argument misconceives the very limited role of a motion for reconsideration.
Although Rule 4:49-2 provides that a party filing a motion for reconsideration is entitled to present a "statement of the matters or controlling decisions which [the party] believes the court has overlooked or as to which it has erred," the rule has repeatedly been construed more narrowly. In particular:
Reconsideration should be utilized only for those cases which fall into that narrow corridor in which 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. [Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02 (Ch. Div. 1990)).]
Notably, and of considerable significance here, a party is not permitted to use a motion for reconsideration as a basis for presenting facts or arguments that could have been provided in opposition to the original motion. Id. at 384. We will not disturb a trial judge's denial of a motion for reconsideration absent an abuse of discretion. Id. at 389.
We consider plaintiff's contentions in light of these standards. In Point I, plaintiff argues that the judge erred by failing to require the parties to submit their dispute to mediation because, according to him, the PSA so requires. We disagree. Plaintiff's argument misstates the applicable provision of the PSA. That document provides in paragraph ten that:
In the event of any dispute arising out of this agreement or the performance thereof . . . the wife and husband agree that all attempts shall first be made between them to settle the dispute by negotiation and agreement. If an agreement cannot be reached, the parties agree that they may use mediation but are not required to do so prior to using the courts for any determination. [(emphasis added).]
Thus, the clear language of the PSA makes it abundantly clear that defendant was not required by the terms of the PSA to attempt to resolve a dispute by mediation before filing her motion in December 2006.
Plaintiff's contention in Point II that the court erred by not ordering a plenary hearing is similarly lacking in merit. Even if we were to assume, which we do not, that the contentions he advanced in the motion for reconsideration would have warranted a plenary hearing had such contentions been advanced by way of opposition to the December 1, 2006 motion, we conclude that plaintiff should not be permitted to raise factual disputes at the time of the motion for reconsideration that could have been advanced in opposition to the original motion. Cummings, supra, 295 N.J. Super. at 389.
As we observed in Cummings:
[I]f 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. [Id. at 384 (quoting D'Atria, supra, 242 N.J. Super. at 401-02)(emphasis added).]
Thus, a party may present new evidence during a motion for reconsideration only when such evidence was not available and did not exist at the time the underlying motion was filed. Ibid. Here, all of the information defendant presented during the reconsideration motion was available when defendant filed the motion that was heard on January 12, 2007. Not only did plaintiff fail to submit such material at that time, but indeed he filed no opposition at all.
Accordingly, we are satisfied that the judge did not abuse her discretion when she declined to grant defendant a plenary hearing when his motion for reconsideration was filed. We concur in her determination that he presented nothing that was new and nothing that could not have been provided when the underlying motion was heard on January 12, 2007. We are satisfied that the judge did not mistakenly exercise the discretion that is entrusted to her on a motion for reconsideration.
Nonetheless, we exercise our discretion to remand one claim to the judge for her review. At argument, plaintiff discussed defendant's claim that he had encumbered the marital home (the "Studer Road property") with a mortgage after the divorce complaint was filed. He pointed to documents in his appendix that he claims establish that the mortgage in question is not a new mortgage, but is instead merely an assignment of a mortgage that the parties obtained in 1994. He asserts that the assignment occurred when First Community Bank became Unity Bank, but it was the same encumbrance that the parties both accepted in 1994 long before the divorce proceedings began.
In answer to our question, plaintiff advised that the erroneous characterization of the September 29, 2004 assignment as a new mortgage had resulted in an $85,000 error in defendant's favor. We decline to exercise original jurisdiction to evaluate this contention. Instead, we remand this single claim to the Family Part for further proceedings limited to a review of whether the September 29, 2004 mortgage is a new encumbrance or instead merely an assignment of an existing mortgage. We do not retain jurisdiction.
Affirmed in part. Remanded in part.