Opinion
DOCKET NO. A-5743-10T3
06-15-2012
JOSEPH LIPSCOMB, Plaintiff-Appellant, v. MAHALIA LIPSCOMB, Defendant-Respondent.
Mele & Associates, LLC, attorneys for appellant (Gregg Mele, on the brief). Toni Ann Marcolini, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Espinosa.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-591-98.
Mele & Associates, LLC, attorneys for appellant (Gregg Mele, on the brief).
Toni Ann Marcolini, attorney for respondent. PER CURIAM
Plaintiff appeals from the denial of his motion for reconsideration of a post-judgment matrimonial order. We affirm.
The parties were married on July 7, 1956, and divorced on April 20, 1998. Their Judgment of Divorce (JOD) incorporated a settlement they had reached, which included a handwritten addendum that stated, "The defendant wife shall receive full former spouse military benefits and plaintiff shall notify the appropriate military officials to that effect." In addition, the JOD provided, "[t]he Defendant will continue to receive military PX and Commissary privileges and the Plaintiff will effect any instruments or documents which entitle a former spouse to receive these privileges."
Thereafter, defendant filed a request with the Department of Defense, Defense Finance and Accounting Service (DFAS), to have an election of former spouse coverage deemed to have been made by plaintiff. By letter dated September 2, 1998, DFAS acknowledged receipt of the request and advised defendant that plaintiff had been informed of her "deemed election" request and provided with the necessary forms for making that election. However, in December 2004, the DFAS advised defendant that the JOD was not sufficiently specific regarding that benefit and that, to be entitled to coverage, she would have to submit a revised divorce decree that "clearly state[d] that [she] should be entitled to the S.B.P. [Survivor Benefit Plan] coverage[.]"
Defendant filed a motion to enforce litigant's rights that was supported by a certification in which she stated that she had spoken to plaintiff; and that he agreed not to oppose the changes to the JOD she requested but refused to sign an amended JOD. In the interim, in September 2003, plaintiff had made an election to have his new spouse identified as his beneficiary for S.B.P. benefits. Nonetheless, a consent order dated October 23, 2007 - drafted by plaintiff's counsel - was executed by the attorneys for the parties and amended the JOD by stating the following:
1. That the Defendant, Mahalia J. Lipscomb is entitled to the Former Spouse Protect Fund, more commonly referred to At Department of Defense Retired and Annuity Pay section As Survivor Benefit Plan.
2. Annexed hereto to this Consent Order is the Retiree Account Statement of Plaintiff referencing the fund entitled "Former Spouse Protection Act" referencing the plan and fund that is subject of this Consent Order Amending Judgment of Divorce.
3. The Defendant Mahalia J. Lipscomb is the covered person of the Former Spouse Protection Plan of the Plaintiff.
In July 2010, plaintiff filed a motion to vacate the consent order. In support of the motion, he submitted a certification in which he stated he had instructed his attorney to oppose the motion to amend the JOD; he did not authorize his attorney to execute the consent order on his behalf; and he was unaware of the consent order until he received a copy of it from DFAS in April 2010. By order dated April 8, 2011, the court denied plaintiff's motion, noting plaintiff had failed to satisfy the requirements of Rule 4:50-2 by failing to file a timely motion within one year of the date of the consent order and failing to satisfy the burden of proof to obtain relief.
Plaintiff filed a motion for reconsideration. At oral argument on the motion, plaintiff's counsel again argued that plaintiff had not consented to the amendment of the JOD. He also argued that, consistent with his intent, the parties' settlement was not intended to provide defendant with S.B.P. benefits.
Upon inquiry from the court, plaintiff's counsel confirmed that under federal law, there were three benefits that a former spouse could share in a divorce, "the PX benefits, the percentage of the military pension, and the surviving spouse benefits." The court observed that both the PX benefits and the percentage of the military pension were explicitly addressed in the typed portions of the JOD. The court concluded that "there would have been absolutely no reason whatsoever to add [the handwritten] paragraph, except for the fact that there was one remaining item that needed to be negotiated between the parties, and that was the survivor benefit." In addition, the court noted the absence of any language stating that the parties had agreed that defendant would not receive survivor benefits.
In addressing plaintiff's argument that the motion for reconsideration should be granted, vacating the consent order, the court observed that plaintiff retained the attorney who had represented him in the divorce to handle defendant's motion to amend the JOD and that, if he did not receive a copy of the order entered following that motion, he had options available to secure a copy of the order. The court observed, "I have received nothing in any certification, in anything at all submitted to the Court that indicates to me that Mr. Lipscomb did not, in fact, receive this order within a short and reasonable period of time after the order was entered on October 23, 2009." Nonetheless, plaintiff did nothing for over three years.
The court noted that plaintiff's motion to vacate the order was denied pursuant to Rule 4:50-1(a), which is subject to the one-year time limit for the filing of a motion set forth in Rule 4:50-2. In his motion for reconsideration, plaintiff argued that the motion should be considered under Rule 4:50-1(f), "any other reason justifying relief from the operation of the judgment or order[,]" which does is not subject to the one-year limit in Rule 4:50-2. The court rejected the argument that the catchall provision of subsection (f) applied, finding that, under the totality of the circumstances, his delay in seeking relief was not reasonable.
In this appeal, plaintiff argues that the trial court erred in denying his motion for reconsideration because the evidence showed he had not consented to defendant receiving S.B.P. benefits and that he acted to vacate the consent order as soon as he discovered its existence. We are satisfied that this argument lacks sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(1)(E), beyond the following brief comments.
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)). It is not appropriate merely because a litigant is dissatisfied with a decision of the court or wishes to reargue a motion, but
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.
D'Atria, supra, 242 N.J. Super. at 401.
For reconsideration to be appropriate, "a litigant must initially demonstrate that the Court acted in an arbitrary, capricious, or unreasonable manner . . . ." Ibid.
In this case, plaintiff argued that reconsideration was appropriate because one of the grounds identified by the court in denying his motion to vacate the consent order was that the motion was untimely. He contended that, because the consent order was entered without his authorization, the motion should be governed by Rule 4:50-1(f), and not subject to a one-year time limit.
Relief under subsection (f) is to be granted "'sparingly, in exceptional situations' to prevent grave injustice." Nowosleska v. Steele, 400 N.J. Super. 297, 304 (App. Div. 2008) (quoting Cmty. Realty Mgmt., Inc. v. Harris, 155 N.J. 212, 237 (1998)). Further, we have noted, "the policy in favor of the finality of judgments plays a larger role in applications brought under subsection (f) than the other subsections." Ibid.
Plaintiff's proofs and arguments fail to demonstrate the exceptional circumstances required to warrant relief under subsection (f). We agree with the trial court's implicit finding that no "grave injustice" will result in the absence of its application. Because relief under subsection (f) would not have been appropriate here, the motion for reconsideration was properly denied.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION