On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FD-03-1578-00A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2010
Before Judges Grall and Messano.
Defendant Thomas W. Nelson is the father of plaintiff Thomas J. Nelson (Tom) and Tom's younger brother, Scott. Tom and Scott's mother died in 1994. By order entered in October 2005, Tom was awarded custody of Scott. At the time, Scott was within weeks of his seventeenth birthday. In April 2008, defendant was ordered to pay child support in the amount of $176 per week. In June 2008, Scott graduated from high school, and in July defendant moved for an order emancipating the young man and terminating child support. Tom opposed the motion and filed a cross-motion seeking contribution to Scott's college expenses.
Defendant appeals from an August 26, 2008 order denying emancipation, continuing child support and requiring him to contribute to college costs, in a weekly amount to be determined; a November 21, 2008 order requiring him to pay $276 weekly, inclusive of a $100 weekly contribution to college expenses; and a January 27, 2009 order denying a motion for reconsideration of the prior orders that defendant filed on December 15, 2008. Defendant filed his notice of appeal on March 11, 2009. Tom did not file a timely response, and this court entered an order suppressing his brief.
Defendant's appeal was not filed within time to permit him to challenge the judge's determinations on Scott's emancipation or defendant's obligation to contribute to Scott's college education. Defendant's notice of appeal was not filed within forty-five days of the entry of the November 21, 2008 order, which was the final order on his motion and Tom's cross-motion.
R. 2:4-1(a). While the time for appeal is tolled by timely filing and service of a motion for reconsideration in the trial court, Rule 2:4-3(e) specifies that "the remaining time shall again begin to run from the date of the entry of an order disposing of such a motion." Defendant filed his motion for reconsideration twenty-four days after the entry of the final order. Even if we assume the motion for reconsideration was timely filed because service of the order was delayed, see R. 4:49-2, that left defendant twenty-one days from January 27, 2009 to file a notice of appeal challenging the November 21, 2008 order. Defendant's notice of appeal was filed forty-three days after the January 27, 2009 order.
Given the date on which the notice of appeal was filed, our jurisdiction to address error in the initial orders depends upon defendant showing "good cause" for the untimely filing. R. 2:4-4(a) (permitting extension of forty-five-day period, for a period not to exceed thirty days, upon "a showing of good cause"). Because defendant has not made any effort to establish the requisite good cause, we will not address those claims.
The issue that can be addressed is whether the judge erred in denying defendant's motion for reconsideration. Motions for reconsideration permit the judge to consider "matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." R. 4:49-2. "'Reconsideration is a matter within the sound discretion of the Court, to be exercised in the interest of justice.'" Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)) (alteration omitted). Absent new evidence not reasonably available to a party prior to the initial decision, reconsideration is appropriate if the initial order was entered on "a palpably incorrect or irrational basis." Ibid. (internal quotations omitted).
Applying those standards, we conclude that the judge did not abuse her discretion in declining to reconsider whether Scott was entitled to assistance with college expenses if commensurate with defendant's ability to contribute. The judge's initial decision on factors relevant to defendant's obligation, while less than detailed in its explanation of the applicability of Gac v. Gac, 186 N.J. 535 (2006), Newburgh v. Arrigo, 88 N.J. 529 (1982) and Gotlib v. Gotlib, 399 N.J. Super. 295 (App. Div. 2008), indicates that she considered the precedents. Defendant has not established that the judge's determination on that issue was palpably incorrect or irrational. Cummings, supra, 295 N.J. Super. at 384.
In contrast, we find that the judge's refusal to reconsider the amount of defendant's contribution was a mistaken exercise of discretion. The judge's initial decision on the amount does not reflect any consideration of defendant's ability to pay.
Moreover, the judge had not addressed defendant's claim that the income of Scott's custodian, Tom, is also relevant, and on defendant's motion for reconsideration the judge should have taken the opportunity to do so.
Accordingly, we reverse and remand to permit the judge to reconsider the extent of defendant's contributions and to address his claim that Tom's ability to contribute should be taken into consideration. We caution the parties and the judge that our direction to address defendant's claim about the relevance of Tom's ability to contribute should not be understood as an expression of ...