SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 18T1 DORENA CALBAZANA, Plaintiff

- Respondent,

v. EVRON COOPER, JR., Defendant

- Appellant

.

__________________________

Submitted September 16, 2019

– Decided Before Judges Rothstadt and Mitterhoff

. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM

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- 13. Newman & Ingemi, LLC, attorneys for appellant (Scott J. Newman, on the briefs). Dorena Calbazana, respondent pro se.
PER CURIAM
Th is is an appeal of a post

- judgment order entered in the Family Part on December 21, 2108, denying defendant Evron Cooper, Jr.'s motion seeking NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet , this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36

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October 31, 20192 A

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reconsideration of a prior order entered on October 26, 2018. The October order compelled defendant to contribut e to the college expenses of the parties' son.
Defendant also challenges the p rovision in the December 21, 201 8 order that granted plaintiff Dorena Calbazana's cross - motion for the counsel fees incurred in defending the motion for reconsideration. We affirm, substantially for the reasons set forth in Judge Yolanda C. Rodriguez's thorough oral decision as placed on the record on December 21, 2018. We add only the following
comments. We discern the following facts fro m the record. Plaintiff and defendant were married on February 14, 1998. The parties have one child , a son . On January 6, 2003, a final judgment of divorce was entered, incorporating by reference a property settlement agreement (PSA) entered by and betw een the parties. Concerning anticipated college costs, the PSA specified that if their son

continues schooling beyond high school and is enrolled in college on a full time basis at the time of his high school graduation, the parties shall renegotiate res ponsibility for payment of college expenses and/or continuation of support while the child attends college. If the parties cannot agree on payments for child support and/or college expenses while [the] child attends college, either party may apply to a Co urt of competent jurisdiction for determination of the disagreement. The parties' share of the college expenses should not be calculated until after utilizing all available scholarships, grants and loans. The3 A

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- 18T1 College shall be selected by the child, with the agreement of both parents, giving due consideration to the financial ability of both parties to pay the costs. Upon the child's emancipation as defined in paragraph Sixth (C), neither party shall have any further obligation to contribute toward colleg e expenses. 1 2
The son began attending Camden Community College in fall 2016. He incurred a tot al cost of $10,732 for his attendance at the two

- year school. Thereafter, he b egan attending Rutgers Univer sity in fall 2018 , electing to commute to school from home . T he cost of attendance during the fall 201 8 semester was $7 , 873.
O n September 19, 2018, plaintiff filed a mo tion to compel defendant to contribute to his son's past and future c ollege costs

. 3 A fter a hearing at which

1 On June 25, 2013, a different Famil y Part judg e, after interview ing the parties' son in camera, entered an order finding, inter alia , that the son was "not interested in developing a relationship with [d efendant ] , his father. "

2 On June 29, 2016, January 3, 2017 , and August 25, 2018 defendant filed motion s to emancipate his son and terminate his chi ld support obligation, which were all denied by the trial court . On February 15, 2017 and November 16, 2017, defendant filed motion s to emancipate the child and decrease and/or terminate his child support obligations , and for reimbursement of child support paid from August 8, 2016 through Fe bruary 2017. These applications were likewise denied

.
3 Defendant filed a cross

- motion to emancipate his son and terminate child his child support obligations. The judge's October 21, 2018 order denied the cross

motion. Although defendant argued on the motion for reconsideration that the4 A

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defendant testified , 4 the court concluded that defendant should pay hal f of the

son 's cost of having attended Camden County Co mmunity College, and going forward, a 68 per cent pro rata share of the son's cost of attending Rutgers University. 5 Judge Rodriguez made her determina tion after conducting a thorough review of the factors enunciated in Newburgh v. Arrigo , 88 N.J. 529 (1982). Thereafter, defendant sought reconsideration of the judge's decision. On December 21, 2018, Judge Rodriguez entered an order denying defendant 's motion for reconsideration and granting plaintiff 's cross

- motion for an awar d of attorney's fees. 6 In that regard, Judge Rodriguez "[did] not find that anything new that was unavailable at the motion date of October was pointed out to the
court, nor any new case s , or anything that has been pointed out that the [c]ourt overlooked last time in rendering its decision." In addition, based on her

judge erred in denying the application on cross

- motion, on appeal he appears to have abandoned that argument, so we find it unnecessary to address it.

4 Plaintiff's counsel argued on her behalf, and she did not t estify.

5 Defendant 's salary at the time of the hearing was approximately $86,000 and plaintiff 's salary was approximately $39,000.

6 At the December 21, 2018 hearing, defendant testified telephonically, and plaintiff's counsel argued on her behalf.5 A

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determination that "this is essentially the same motion the second time," the judge found that an award o f counsel fees was appropriate. Referencing the
factors set forth in Rule 5:3

- 5, the judge found that (1) defendant's position was not reasonable or in good faith, as it was essentially a rehash of his arguments on the initial motion, " as well as a number of these issues with respect to seeking
a modification of child support [which have ] been denied a number of times before;" (2) plaintiff obtained a favorable result ; (3) the financial circumstances of the parties demonstrated that plaintiff, who earned roughly h alf of what defendant earned, was "not a wealthy individual and for her to continue to incur the expense of counsel to deal with similar motions is not appropriate;" and (4) based on her review of the fee certification, the judge found the fees were

reason able . Accordingly, t he judge ordered that defendant pay $1 , 955 in

a ttorney's fees. This appeal ensued. On appeal, defen dant argues that the judge abused her discretion in denying his motio n for reconsideration. Specifically, defendant contends that Judge Rodriguez incorrectly applied the first and eleventh Newburgh factors and failed to consider the fourth and nint h factors. Defendant further contends that
J udge Rodriguez abused her discretion by ordering him to pay for half the cost
of his son 's fi rst two years of college "because the request for payment was not6 A

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made prior" to his son's enrollment in Camden Coun ty Community College. Finally, defendant contends the judge erred in awarding plaintiff counsel fees.
We review denials of motions for reco nsideration for abuse of discretion. Guido v. Duane Morris L.L.P. , 202 N.J. 79, 87 (2010). Motions for reconsideration "shall state with specificity the basis on which [they are] made, including a statement of the matters or controlling decisions which c ounsel believes the court has overlooked or as to which it has erred[.]" R. 4:49

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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 palpabl y 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 . . . . [ Cummings v. Bahr , 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v . D'Atria , 242 N.J. Super. 392, 401

- 02 (Ch. Div. 1990)).] With this framework in mind, we now turn to defendant's contentions concerning Judge Rodriguez's application of the Newburgh factors. In Newburgh , the Court set forth twelve non

- exhaustive factors in considering what portion of college expenses a child may reasonably demand of a non

- custodial parent: (1) whether the parent, if still living with the child,

would have contributed toward the costs of the7 A

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- range goals of the child. [ Newburgh , 88 N.J. at 545.] See also Gotlib v. Gotlib , 399 N.J. Super. 295, 309 (2008)

. Subsequently, an amendment to the child

- support statute, N.J.S.A. 2A:34

- 23(a), codified this list of factors. Kiken v. Kiken , 149 N. J. 441, 449

- 50 (1997). "Thus, a trial court should balance the statutory criteria of N.J.S.A. 2A:34

- 23(a) and the Newburgh factors, as well as any other relevant circumstances, to reach a fair and just decision whether and, if so, in what amount, a parent or parents must contribute to a child's educational expenses." Gac v. Gac , 186 N.J. 535,
543 (2006)

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In deciding the initial October 2 018 motion , J udge Rodriguez expressly considered and appropriately weighed factors one, four, nine and eleven , among

o thers, to reach a fair and just decision. As to the first factor, the judge considered t he parties' own educational backgrounds and the provision in their
PSA , which contemplated that a court would intervene and make a determination if the parties could n ot agree on a choice of college or their relative contributions , which is exactly what happened in this case. Likewise, we reject defendant's argument that the judge incorrectly applied factor number eleven

. The judge acknowl edged that defendant and his

son do not have a good relationship, but noted that

it's not the worst scenario I've ever seen or read. In fact, there is some relationship. And as I said, I certainly hope it will be strengthened between the son and his father, but there are s ituations in case where there have been some very difficult and nasty comments said between the child and the parent. That's not the case here. But even if that were the case, I'm not saying that under the law that means that a parent can't

– or can't be ordered to contribute to its college. We discern no error in that finding. See Gac , 186 N.J. at 546 (holding "[ a ] relationship between a non

- custodial parent and a child is not required for the custodial parent or the child to" request assistance for college expenses).9 A

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Also belied by the record is defendant 's con tention that the judge on the original motion failed to consider factor number four concerning defendant's
abili ty to pay the costs for his son's college education. To the contrary, Judge
Ro driguez made detailed findings concerning the parties' relative salaries and she also considered defendant 's other obligations, including his obligation to pay
his own student loans, before concluding that defendant wa s capable of making a pro rata contrib ution

. As to factor number nine, the judge found that the child had successfully availed himself of grants and loans, and that he also h eld a part

time job

. Similarly without merit is defendant 's argument that t he judge erred in requiring him to pay half of his son's past

- incurred Camden County Community College expenses . Defendant a rgues that the judge overlooked the Supreme
Court 's decision in G ac holding that failure to request contribution before a child's enrollment in college "will weigh heavily against the grant of a future application." 186 N.J. at 546

- 47. Again, defendant's assertion is belied by the
record. In that regard, Judge Rodriguez on the original motion found that the facts and circumstances of this case do not invoke the concerns expressed by the Supreme Court in Gac

. T he judge noted that unlike the facts in Gac ,10 A

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- 18T1 Your son didn't attend a high priced college or university, but rat her, as it's been pointed out and I think there's no dispute, he's approached this in the most economical way possible, which is two years of community college, transfer, then to a four

- year institution. And you, sir, I believe you did something like that as well. So while in a perfect world, both parents sitting down with the child, going through maybe a couple of brochures and options, I find that that's certainly more of the situation

– in other words, not permitting going back, and having a parent pay tuition in the past is more of a situation, such as Gac v. Gac , where the child goes to some really expensive school and the noncustodial parent says, wait a minute, nobody even checked with me, that's not fair, I would have recommended that they go to co mmunity college. Well, that's where we are. Your son did select the most economical way to get his advanced degree. In short, we conclude t he judge did not abuse her discretion in deny ing
defendant 's motion for reconsideration because defendant made n o showing that the judge expressed her decision based upon a palpably incorrect or irrational basis, nor did he point to probative, competent evidence that the judge failed to consider or appreciate. See Cummings , 295 N.J. Super. at 384 ( citation omitted). We likewise conclude the judge did not err in awarding plaintiff attorney's fees. Judge Rodriguez made reference to the applicable factors set forth in Rule11 A

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5:3

- 5, 7 finding that (1) defendant's position was not reasonable or in good faith,

as it was essentially a rehash of his arguments on the initial motion; (2) plaintiff prevailed; (3) the financial circumstances of the parties demonstrated that plaintiff, who earned roughly half of what defendant earned, was "not a wealthy individual and for her to continue to incur the expense of counsel to deal with similar motions is not appropriate;" and (4) based on her review of the fee certification, the judge found the $1 , 955 fee was reasonable. W e conclude the judge's findings are supported by subst antial credible evidence in the record and that her award of attorney's fees was entirely within the bounds of her discretion

.

7 Rule 5:3

- 5(c) sets forth the following nine factors to guide the court's discretion in awarding counsel' s fees in a Family Part action :

(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribu te to the fees of the other party; (3) the reasonableness and good faith of the positions advance d by the parties; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders to compel discovery; an d (9) any other factor bearing on the fairness of an award.12 A

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To the extent that we have not specifically addressed any of defendant's remaining arguments, we conclude they lack sufficien t merit to warrant discussion in a written opinion. R. 2:11

- 3(e)(1)(E).
Affirm ed.