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Brigette T. Lutz, F/K/A Depiano v. Paul A. Depiano

March 1, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-339-08V. McCrink, Kehler & McCrink,

Per curiam.


Submitted: February 16, 2011 - Decided: Before Judges Axelrad and Lihotz.

In this post-judgment matrimonial matter, defendant husband only appeals from the January 8, 2010 order denying reconsideration of the November 20, 2009 order denying his motion to reduce limited duration alimony based on alleged change of circumstances. We affirm.

The parties ended their six and one-half year marriage by an August 1, 2008 final judgment of divorce, incorporating a comprehensive agreement relating to all collateral issues of the marriage. The agreement obligated husband to pay wife four years of limited duration alimony at $4,000 per month, commencing on August 1, 2008, based on husband's income of $185,000 and wife's income of $25,000. The agreement further provided that wife would retain the former marital home in Haddonfield with sole responsibility for the repayment of the first mortgage with an approximate balance of $125,000.

On October 26, 2009, husband filed a motion to reduce his alimony obligation based on the allegation that wife's financial circumstances had improved significantly, thereby constituting changed circumstances. Subsequent to the divorce wife had entered into a long-term lease for the rental of the Haddonfield home. Wife and children had relocated to Manasquan and were living in her boyfriend's investment property. It is undisputed the boyfriend did not live in the house with them and wife and the boyfriend were not cohabitating. It is further undisputed that wife did not own the property and had no interest in it other than as a tenant, paying monthly rental and utility bills. In addition, wife was given as a present a new car to replace the older vehicle she had received in equitable distribution, free and clear, which required excessive repairs.

By order of November 20, 2009, apparently following oral argument, Judge Gwendolyn Blue denied husband's motion based on a failure to show a substantial change in circumstances as required by Lepis v. Lepis, 83 N.J. 139 (1980). On December 10, 2009, husband moved for reconsideration, which the judge denied on January 8, 2010, following oral argument. As set forth in an order of the same date, the judge found husband "failed to meet the reconsideration standard pursuant to Rule 4:49-2 by showing that [the] Court has acted arbitrary, capricious or unreasonable, or that [the] Court failed to consider new or material evidence."

Husband filed a notice of appeal on or about February 18, 2010, which solely referenced the January 2010 reconsideration order, as did the accompanying civil case information statement (CIS). Even after receipt of wife's CIS expressly stating that "[t]he denial of the motion for reconsideration forms the sole basis for [husband's] appeal," husband's counsel never sought to clarify or amend his notice of appeal. Furthermore, husband only provided us with a transcript of the reconsideration motion hearing. Nevertheless, husband presented no arguments in his appellate brief addressing the reconsideration issue, but instead challenged the court's substantive ruling, arguing that "the trial court erred in ruling that [husband] had failed to establish a prima facie case of [wife's] changed circumstances such as would warrant a modification of [husband's] limited alimony obligation."

Wife asserts that this appeal is limited to the judge's denial of husband's motion for reconsideration. Wife further notes that husband's appeal is untimely as to the November 20, 2009 order. Nevertheless, as a protective measure, wife's brief also responds to the substantive issues raised by husband in connection with the court's denial of his motion for modification.

We agree with wife's procedural argument and affirm substantially for the reasons stated by the motion judge on reconsideration. "[I]t is clear that it is only the judgments or orders . . . designated in the notice of appeal which are subject to the appeal process and review." Pressler and Verniero, Current N.J. Court Rules, Comment 6.1(f)(l) on R. 2:5-1(f) (2011). See, e.g., 1266 Apt. Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004); Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 461-63 (App. Div.), certif. denied, 174 N.J. 544 (2002). Accordingly, if the notice of appeal only designates the reconsideration order, it is only that proceeding and not the underlying order that may be reviewed. W.H. Indus. v. Fundicao Balancins Ltda, 397 N.J. Super. 455, 458-59 (App. Div. 2008).

Additionally, husband's appeal is untimely as to the November 20, 2009 order. See R. l:3-3 (allowing three additional days after each order for service by regular mail);

R. 2:4-1 and 2:4-3(e) (requiring an appeal from a final judgment or order to be taken within forty-five days of its entry with a motion for reconsideration tolling the time and the remaining time beginning to run from the date of entry of the reconsideration order).

We discern no abuse of discretion by Judge Blue in her denial of husband's motion for reconsideration. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). Reconsideration is reserved for cases that fall into a narrow corridor in which "the [c]court has expressed its decision based upon a palpably incorrect or irrational basis" or "it is obvious that the [c]court either did not consider, or failed to appreciate the significance of probative, competent evidence." Fusco, supra, 349 N.J. Super. at 462 (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). See also Cummings, supra, 295 N.J. Super. at 384. It is undisputed this is not a cohabitation case and, therefore, ...

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