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Lau v. Lau-Ho

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 30, 2008

PETER LAU, PLAINTIFF-APPELLANT/CROSS-RESPONDENT,
v.
NYUK PING LAU-HO, DEFENDANT-RESPONDENT/CROSS-APPELLANT.
PETER LAU, PLAINTIFF-APPELLANT,
v.
NYUK PING LAU-HO, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Monmouth County, Docket No. FM-13-1984-04C.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: April 16, 2008

Before Judges Cuff and Lisa.

In this post-judgment matrimonial appeal, plaintiff Peter Lau seeks review of orders entered in January and March 2007. (A-4486-06T1).*fn2 In a second appeal, (A-6567-06T1), he seeks review of the order denying a stay of the former orders. We affirm.

The parties married in 1983. They had three children. The oldest was born in 1986, the second in 1989, and the youngest in 1992. They divorced in 2005. The post-judgment proceedings were dominated by two main issues: payment by and allocation between the parties of college expenses for the oldest child and distribution of the proceeds of the sale of a condominium in Canada.

On January 5, 2007, an order was entered that required the net proceeds from the sale of the Canadian property to be evenly distributed subject to the credits due to each party. Plaintiff's share was placed in escrow until defendant received the equitable distribution to which she was entitled. Plaintiff was required to provide proof of life insurance coverage and retirement accounts. The order also required plaintiff to pay $593 from his share of the escrowed funds to cover the costs of the preparation of the Qualified Domestic Relations Order (QDRO) and $4000 in counsel fees to defendant. A January 11, 2007 order required an equal sum, from defendant's Canadian Condo proceeds, be deposited in defendant's attorney's trust account for defendant's share of the QDRO costs.

Plaintiff filed a motion for reconsideration, as did defendant. The March 16, 2007 order fixed defendant's share of college expenses at 41% and plaintiff's credit for condominium expenses at $6,248.34. Plaintiff was also ordered to produce various documents by April 2, 2007, or he would be denied credit for further expenses. The order granted defendant interest on the real estate proceeds and awarded her $1200 in counsel fees.

Plaintiff filed his notice of appeal on May 2, 2007. He filed a motion to stay the provision of the January 5, 2007 order that required his portion of the proceeds to be placed in escrow. By order dated July 20, 2007, the judge denied the stay of the January order and ordered plaintiff to pay $750 in counsel fees to defendant. Plaintiff filed a timely notice of appeal from this order.

It is clear to us from an examination of plaintiff's brief that he seeks review of not only the March 16, 2007 order but also the January 5 and 11, 2007 orders. His notice of appeal, however, designates, only the March 16, 2007 order. The party filing a notice of appeal must "designate the judgment, decision, action or rule, or part thereof appealed from." R. 2:5-1(f)3A. It is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review. Campagna ex rel. Greco v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.), certif. denied, 168 N.J. 294 (2001); Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b. 138 N.J. 41 (1994). Here, the failure to designate the January orders in the notice of appeal bars review of those orders.

Any appeal from the January orders was also untimely. The January orders appear to have been final orders subject to appeal. Thus, a notice of appeal should have been filed no later than February 24, 2007. R. 2:4-1(a). The time for appeal is tolled by a timely motion for reconsideration. R. 2:4-3(e). The motion for reconsideration was filed twelve days following entry of the January 11 order. Once the motion for reconsideration was resolved with the entry of the March 16, 2007 order, the notice of appeal had to be filed by April 16, 2007. R. 2:4-3(e). The notice of appeal was not filed until May 2 and a motion for an extension of time was never filed. R. 2:4-4. Therefore, we limit our attention to the March 16, 2007 order only.

Our review of any order entered by the trial court is limited. We will not disturb an order unless it is unsupported by the facts of record, Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974), or the judge misapprehended or misapplied the governing law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). In matters pending in the Family Part, we owe particular deference to the factual findings and discretionary decisions due to the specialized nature of the court. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

The standard governing motions for reconsideration in the Family Part is well-known. In D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990), the judge wrote:

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.

A motion for reconsideration is properly denied if it is supported by facts known to the moving party at the time of the initial motion. Del Vecchio v. Hemberger, 388 N.J. Super. 179, 188-89 (App. Div. 2006). We will disturb an order denying a motion for reconsideration only if the trial judge abused his discretion. Triffin v. Johnston, 359 N.J. Super. 543, 550 (App. Div. 2003); Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997).

Regarding the March motion for reconsideration, the judge found that a large part of plaintiff's motion was a regurgitation of previous arguments and therefore, did not satisfy the reconsideration standard. New evidence was also presented regarding plaintiff's contribution to college costs and condo fees, and the judge allowed credits to be issued to plaintiff for these expenses. The judge found that plaintiff had paid $14,599.98 in college expenses and he was entitled to a credit for 41% of that amount, as well as a $6248.34 credit for condo expenses. He ordered that the parties are to communicate over the children's health, education, and welfare.

The rest of plaintiff's requested relief was denied and the court found that plaintiff's right to additional credits would be waived unless he provided proof of those expenditures by April 2, 2007. The judge granted interest on defendant's portion of the condo proceeds as of January 23, 2007. The judge recognized that while part of plaintiff's motion was granted, the majority was denied stating,

While [plaintiff's] motion for reconsideration did result in him getting some credits I'm concerned about the fact that it took to this stage and even in his reply certification before we got full proof. And these are documents that could have been supplied way earlier and at leas[t] cleared a portion of this up some time ago. So, it's for that reason I question whether he's acted in good faith or not. And I find that he has not.

Based on these findings, the judge awarded defendant additional counsel fees in the amount of $1200.

We discern no abuse of discretion by the judge. In fact, his consideration of documents in plaintiff's possession at the time of the initial motion, but withheld until the motion for reconsideration, demonstrates the desire of the motion judge to obtain a fair adjustment of the interests of each party.

Similarly, we find no mistaken application of discretion or misapplication of law in the disposition of plaintiff's motion for stay. The July 20, 2007 order denying a stay of paragraph 2 of the January 5, 2007 order is affirmed.

Affirmed.


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