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Diane Mistretta v. Michael J. Mistretta


August 9, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1554-07.

Per curiam.


Argued May 30, 2012

Before Judges Messano and Espinosa.

Plaintiff Diane Mistretta appeals from: 1) the April 15, 2011 order of the Family Part denying her motion seeking recusal of the judge; and 2) the May 13, 2011 order denying plaintiff's various requests for post-judgment relief (the May 13 order). We have considered the arguments made in light of the record and applicable legal standards. We affirm.

Plaintiff and defendant Michael J. Mistretta were married on December 29, 1996 and had three children: a son born in 1998; a daughter born in 2000; and a son born in 2004. A final dual judgment of divorce was entered on January 29, 2008 that incorporated a property settlement agreement (PSA). Motion practice commenced almost immediately thereafter, resulting in a series of court orders that culminated in an August 17, 2009 order that, among other things, ordered a plenary hearing on numerous issues.

On October 26, 2009, Judge Colleen M. Flynn, entered a case management order requiring the parties to submit a list of issues to be determined at the plenary hearing and a brief statement of their respective positions. A multi-day plenary hearing was held before Judge Flynn on December 3 and 15, 2009, and January 14, 20, 29, February 3 and March 29, 2010. After listening to the testimony and examining the evidence presented by the parties, on May 12, 2010, the judge issued two orders reflecting her decisions, more thoroughly explained in a comprehensive written opinion dated May 11, 2010.

Motion practice continued unabated. An order was entered on June 10. On July 8, Judge Flynn entered an order that essentially denied plaintiff's request to reconsider a multitude of provisions contained in the May 12 orders. On September 20, the judge notified both parties that she was scheduling other "multiple motions pending" for decision on October 15. Judge Flynn entered an order on that date that, among other things, denied most of the relief plaintiff sought, including plaintiff's request for reconsideration of the June 10 order. On December 17, 2010, and February 4, 2011, additional orders followed further motion practice.

On March 22, 2011, plaintiff filed a motion seeking Judge Flynn's recusal "on the grounds of extreme prejudice and unprecedented discrimination." The judge denied the motion without argument by order dated April 15, concluding that, Plaintiff[] has clearly not met her burden in showing that the factual bases upon which she seeks disqualification are true. The Plaintiff has provided no objective evidence of bias or prejudice or even the appearance of same, which would justify recusal.

Plaintiff filed another motion on April 14, 2011 essentially seeking reconsideration of various provisions of prior orders. Judge Flynn addressed each request for relief and, in most instances, denied plaintiff's request and entered the May 13 order. This appeal followed.

We address each of the specific claims of error contained in the May 13 order.

Division of Bank Accounts

Plaintiff argues that following the plenary hearing, the judge "incorrectly calculated the bank accounts" of the parties such that based upon the provisions of the PSA, she is owed an additional $9,110.82 from defendant. In her July 8, 2010 order, the judge denied plaintiff's request to correct the bank account distribution, explaining that plaintiff did not meet the standard for reconsideration. The court also denied the same request in an April 28, 2011 order. Paragraph three of the order under review denies the request again, quoting the reasoning used by the judge in her July 8, 2010 order, and citing Rule 4:49-2.

Mistretta Homes Inc.

Plaintiff claims the judge erred in calculating the amount due to her from the equitable distribution of Mistretta Homes Construction Inc. The opinion that followed the plenary hearing includes a detailed breakdown of how Judge Flynn arrived at the amount, $53,031.46, reflecting plaintiff's 45% interest as set forth in the PSA. Plaintiff apparently contended that she was entitled to a further distribution based upon interest that should have accrued; costs, including accountant's fees that were incurred as a result of defendant's alleged delays in filing various tax forms; and from otherwise cooperating with the distribution. In the May 13 order, Judge Flynn noted that plaintiff's request was time-barred, pursuant to Rule 4:49-2. She also noted that plaintiff previously challenged the payment of accountant's fees, resulting in an order of December 17, 2010 denying her request.

Plaintiff also argues that she was entitled to be reimbursed $272 for her share of taxes paid in 2008 for the corporation's 2006 tax return. In the May 13 order, Judge Flynn concluded "[t]his [wa]s an issue that arose prior to the parties' divorce and should have been addressed pendente lite or in the parties' JOD/PSA. This is not an issue properly brought up post-judgment when the PSA includes a provision that all issues and claims are released or waived (see paragraph 33 of PSA)." Plaintiff claims this was error because she did not incur the expense until after the divorce was entered.

However, the issue was apparently raised by a motion plaintiff filed immediately after the plenary hearing. Judge Flynn's June 10, 2010 order denied the relief without prejudice because the "issue was addressed in the plenary hearing and resultant decision." Indeed, the decision that followed the plenary hearing specifically addressed the corporate taxes due for the years 2007 through 2010.*fn1

Counsel Fees

Following the plenary hearing, Judge Flynn concluded that defendant violated paragraph 9 of the PSA which prohibited him from recording the deed to the marital home before paying plaintiff her share of the net proceeds. The judge denied plaintiff's request for counsel fees because "the Court d[id] not have itemized certifications of services from the attorneys limited to this issue, as attorneys were previously involved in seeking to enforce and defend regarding numerous issues." Further, the judge concluded defendant had not "acted in bad faith since he had credible claims of offsets against his obligation."

In an order dated July 8, 2010, the court denied without prejudice plaintiff's motion for reconsideration of the issue of attorney's fees, stating:

A motion for reconsideration is []properly denied if based on unraised [facts] known to the movant prior to the entry of judgment.[] Del Vecchio v. Hemberger, 388 N.J. Super. 179, 188-89 (App. Div. 2006). Plaintiff knew of these attorney's fees when she first raised the issue at the parties' plenary hearing. She failed to provide the Court with invoices during the plenary hearing.

Additionally, Plaintiff failed to prove bad faith on the part of the Defendant.

The May 13 order denied another request by plaintiff for attorney's fees, cited the July 8 order, and stated "[p]laintiff did not make the sufficient showing for an award of attorney's fees" and was out of time pursuant to Rule 4:49-2.

Plaintiff argues she was entitled to counsel fees because she "submitted her legal expense[s] associated with efforts to enforce the PSA . . . during the Plenary Hearings" as an exhibit, and the judge "incorrectly rejected the . . . claim[,] stating that [plaintiff] did not provide the statements . . . ." Plaintiff's appendix includes retainer agreements or billing statements from four different law firms, although it is impossible to ascertain what services were rendered by any of them regarding this discrete issue.

Defendant's pre-separation withdrawals from Bank Accounts

Plaintiff contends defendant should reimburse her half "of all cash withdrawals he made prior to January 29, 2007 (date of separation)." She argues Judge Flynn "failed to address [this issue] in" the May 13 order. However, Judge Flynn did address the issue:

Withdrawals of monies prior to the filing of the divorce complaint is an issue that should have been addressed pendente lite or in the parties' JOD/PSA. Such an issue is MOOT at the post-judgment stage when the PSA includes a provision that all issues and claims are released or waived (see paragraph 33 of PSA).

Plaintiff advances no claim of legal error in this regard. Fees, legal expenses and pendent lite support

Plaintiff contends that a series of orders entered in December 2007, which awarded her counsel fees associated with an application for a restraining order, apportioned expenses for a doctor evaluating her child, and awarded her pendente lite support, survived the PSA and should have been enforced by Judge Flynn.

In the May 13 order, Judge Flynn explained why she denied the request:

Plaintiff made this request in her February 23rd, 2011 Motion and was denied. The Court notes Paragraph 15 of the April 28th, 2011 Order which states, Plaintiff's request that the Court change the February 4th, 2011 Order from DENIED to GRANTED regarding Dr. Montgomery's fees, restraining order attorney's fees, and pendente lite spousal support is DENIED. There is no provision in the February 4th, 2011 [sic] addressing the issues that Plaintiff seeks reconsideration on and Plaintiff herself states that they were not addressed. Therefore, Plaintiff's request is unclear. Additionally, the Plaintiff does not note where she had made these requests so that they were not addressed by the Court. The Court also notes that in her Response (dated March 17th, 2011) to Defendant's Notice of Motion, the Plaintiff claims that with regard to the parties' joint account with Merrill Lynch that the balance was distributed as follows: $10,653.03 ML account balance less $4,350.00 difference in Dr. Montgomery's fees due to Wife, less $1,250.00 difference in restraining order attorney's fees due to Wife, less $600.00 pendente lite child support the Defendant failed to pay Wife. According to Plaintiff, the ML account was unfrozen and distributed. Therefore, per her own certification, Plaintiff has already received monies due for Dr. Montgomery's fees and restraining order attorney's fees, and pendente lite child support.

The only question remaining is whether Plaintiff means pendente lite spousal or child support.

But it appears that Plaintiff has received the monies and it is unclear why she now requests monies that she has already received. Furthermore, these issues were addressed in the May 12th, 2010 Order, rendering a request to reconsider untimely under [Rule] 4:49-2.

Therefore, by Plaintiff's own admission she has already received monies that she is now requesting reimbursement for. Additionally, Plaintiff notes in her Certification that Judge Toto ordered this issue to be addressed in the plenary hearing, which it was. As noted above, the plenary hearing resulted in the Orders of May 12th, 2010.

Thus, Plaintiff is out of time to make this request under [Rule] 4:49-2.

Judge Flynn also specifically found that the claim for pendente lite support did not survive the PSA's waiver provisions. Plaintiff has advanced no argument as to why this was legal error.

Reimbursement for personal income taxes

Plaintiff argues she should be reimbursed for the money she paid toward the parties' 2006 and 2007 joint tax returns. In each case, the determination as to the amount owed was not made until after the final judgment of divorce.

The May 13 order concluded that the issue of the 2006 tax reimbursement "arose prior to the parties' divorce and should have been addressed pendente lite or in the parties' JOD/PSA." The May 13 order further provides that "[t]he issue of taxes for 2007 through 2010 were [sic] resolved as part of the plenary hearing which resulted in the May 12, 2010 Order."

However, the issue regarding the 2006 credit was specifically addressed by Judge Flynn in an earlier order dated April 28, 2011, which provided:

Plaintiff's request that the Court order the Defendant to reimburse Plaintiff $389.94 for 2006 Gross Income Tax fees is GRANTED IN PART. Plaintiff submits as Exhibit T to her Notice of Motion, a letter dated October 14th, 2010 from the NJ Division of Taxation stated [sic] that $389.94 is owed stemming from the 2006 property taxes. Plaintiff also submits as Exhibit T to her Notice of Motion, a check in the amount of $389.94 from her to "State of NJ Division of Taxation" dated November 13th, 2010. Defendant requests that the Court deny Plaintiff because he feels that a tax issue prior to the parties' divorce is not an issue to be addressed by the Family Court. However, this is an obligation that both parties are responsible for as they were married at the time and because Plaintiff had filed a claim as noted in the letter from the Division of Taxation, the issue only recently became ripe and this amount was not in dispute at the time of equitable distribution. However, there is no reason why Defendant should be responsible for the full amount. Defendant shall pay Plaintiff $194.97 by subtracting this amount from the funds due from Plaintiff to Defendant . . . .

Plaintiff fails to explain why this did not provide the relief she sought.

Regarding the 2007 taxes, plaintiff claims to have paid $608.09 and includes a copy of a cashed check made payable to "State of NJ Division of Taxation" dated April 15, 2008 in her appendix. Although the check pre-dates the plenary hearing, there is no indication that it was introduced into evidence or that plaintiff made a specific request for reimbursement during the hearing.

As to all issues, plaintiff asserts, without specificity, that Judge Flynn erred by concluding her motion was untimely pursuant to Rule 4:49-2. Plaintiff cites Judge Flynn's comments made at the time of the plenary hearing that various requests were being denied without prejudice to either side reopening the issue upon submission of additional proofs.

Plaintiff misunderstands the applicable law. Rule 4:49-2 provides:

Except as otherwise provided by R. 1:13-1 (clerical errors) a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it. The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred. [Emphasis added.]

In the post-judgment matrimonial context, we recently said:

Reconsideration itself is "a matter within the sound discretion of the Court, to be exercised in the interest of justice[,]" D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). It is not appropriate merely because a litigant is dissatisfied with a decision of the court or wishes to reargue a motion . . . .

And, the magnitude of the error cited must be a game-changer for reconsideration to be appropriate. [Palombi v. Palombi, 414 N.J. Super. 274, 288-89 (App. Div. 2010) (emphasis added) (parallel citation omitted).]

Reconsideration is to be distinguished from the Family Part's inherent equitable powers to modify provisions of prior orders based upon changed circumstances. See, e.g., Crews v. Crews, 164 N.J. 11, 28 (2000).

Plaintiff's appendix does not include the motion she filed that resulted in the May 13, 2011 order. See Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 2:6-1 (2012) ("filed documents in the action bearing on the issues on appeal are required to be included in the appendix"). There is no indication in the documents she has supplied that the motion presented any new evidence or evidence of changed circumstances.

Indeed, as the above discussion reflects, every issue from the May 13, 2011 order that plaintiff now presents on appeal has been the subject of Judge Flynn's original decision following the plenary hearing in 2010, or some subsequent request for relief that was denied. In short, plaintiff was not entitled to continue to pursue arguments already rejected by Judge Flynn.

She cannot now seek review of the propriety of the initial decision following the plenary hearing because such review is time-barred. See R. 2:4-1(a) (requiring an appeal to be filed within forty-five days from entry of the order). She cannot continue to seek review of denied motions for reconsideration that are untimely, or otherwise fail to meet the significant burden that justifies reconsideration. "'[A] litigant must initially demonstrate that the Court acted in an arbitrary, capricious, or unreasonable manner, before the Court should engage in the actual reconsideration process.'" Palombi, supra, 414 N.J. Super. at 289 (quoting D'Atria, supra, 242 N.J. Super. at 401).

Since plaintiff has failed to posit a legal argument regarding the April 15, 2011 order denying her motion for recusal, we deem the issue waived. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue not briefed on appeal is deemed waived.").


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