Castellano v. Mirabelli

 SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0006-22
LAURA CASTELLANO, f/k/a
LAURA MIRABELLI,
Plaintiff-Respondent,
v.
PAUL MIRABELLI,
Defendant-Appellant.
_________________________
Submitted November 8, 2023 – Decided November 17, 2023
Before Judges Haas and Gooden Brown.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Union County, Docket
No. FM-20-1890-09.
Susan B. McCrea, attorney for appellant.
Respondent has not filed a brief.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 

PER CURIAM
Defendant Paul Mirabelli appeals from the Family Part's July 22, and
August 3, 2022 orders denying his motions for reconsideration of the trial court's
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. 1:36-3.
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May 25, 2022 order. In the May 25, 2022 order, the court directed defendant to
refinance the mortgage on the marital home to remove plaintiff Laura
Castellano's obligation from the mortgage or assume the mortgage within forty-
five days; ordered that defendant would be "solely responsible for any additional
liens or debt on the property after 2014"; and denied defendant's application for
a reduction of his alimony obligation.
Based on our review of the record and the applicable law, we conclude
that defendant's arguments are without sufficient merit to warrant extended
discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for
the reasons set forth in the trial court's oral decisions, which it rendered on May
25, and July 22, 2022. We add the following comments.
Under the terms of the parties' June 11, 2010 Amended Judgment of
Divorce from Bed and Board, plaintiff moved out of the marital home.
Defendant was thereafter required to pay plaintiff $4,000 per month in
unallocated support.1 The parties agreed that the marital home would be listed
for sale by August 1, 2010.
When a timely sale did not occur, plaintiff filed a motion for an order
directing defendant to list the home for sale. The trial court granted this motion
1 The parties have three children, who are now emancipated.
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on February 4, 2011. When defendant did not sell the home as required, plaintiff
obtained another enforcement order on October 21, 2011.
Defendant still failed to sell the home. Apparently presuming that doing
so might expedite the process, plaintiff executed a quitclaim deed of her interest
in the home to defendant on April 25, 2014. However, defendant still did not
sell the home and, indeed, began taking on additional debt related to the parties'
mortgage and incurred other encumbrances on the property.
On March 31, 2015, the trial court denied plaintiff's motion to compel
defendant to sell the home, but scheduled a plenary hearing on that issue and on
defendant's request for a downward adjustment of his support obligation. After
further delays, the court directed the parties to participate in settlement
negotiations. As a result, the parties agreed that defendant's support obligation
would be reduced from $4,000 to $3,000 per month and that after the home was
sold, "the net proceeds of said sale shall be equally divided between the parties
and so distributed." The court memorialized the settlement in a January 21,
2016 order.
However, defendant refused to sell the house or remove plaintiff from the
mortgage. He took the position that he was permitted to continue to incur
unlimited debt on the house and to completely eliminate the parties' equity in
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the property. The home was soon the subject of a foreclosure action. Plaintiff
then made a motion to require defendant to remove her from the mortgage or
permit her to sell the home. Defendant responded by filing a cross-motion to
reduce his support obligation.
At the May 25, 2022 oral argument on the parties' competing motions, the
trial court stated at the outset that defendant was "going to be responsible for
any and all debts related to the house from 2014 [the date plaintiff executed the
quitclaim deed to defendant] on." Defendant's attorney responded that "we
never questioned that."
As the argument proceeded, the court again stated, that it "started this off
and . . . said [it] was making it clear that [plaintiff] from 2014 on would not be
responsible for . . . anything having to do with the mortgage, and we all said we
were okay with that." Defense counsel responded, "Perfectly okay with that. I
never wanted her to be."
As the argument on this point drew to a close, the court again addressed
defendant's attorney and stated, "[W]e've already established that you would
agree that post-2014 that [defendant] is responsible for the mortgage." Defense
counsel responded, "Right. I don't -- that's fine. He is responsible." However,
despite these concessions, defendant's attorney balked at having the court
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require defendant to take plaintiff's name off the mortgage or assume the
mortgage because he might have "to incur cost" or "incur a change of interest
rate" by doing so.
The court rejected defendant's contentions and ordered him to either
refinance the mortgage in his own name to remove plaintiff from the mortgage,
or execute an assumption of the mortgage with the bank within forty-five days.
The court explained that "the intent of the parties is clear in that respect because
it defies logic . . . that one would eat away your interest in [the] property and
then somehow [you would] still be responsible for the mortgage." If defendant
failed to take these actions, the court stated it would entertain a motion by
plaintiff to compel the sale of the property. When the property was sold, the
court also directed that defendant would be solely responsible for any liens or
debt on the property after 2014 together with any "arrears, interest and penalties
added to the first mortgage from his foreclosure and late payments since
[2014]."2
2 There was a typographical error in the May 25, 2022 order where the court
stated that defendant would be "solely responsible for arrears, interest and
penalties added to the first mortgage from his foreclosure and late payments
since 2010" instead of since 2014. The court corrected this mistake in its July
22, 2022 order denying defendant's motion for reconsideration.
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The trial court also denied defendant's motion for a reduction of his
support obligation. The court found that defendant failed to demonstrate the re
had been a substantial change of circumstances since the time the support was
last adjusted. The court reasoned that while defendant may have experienced a
decrease of business during the COVID-19 pandemic, this was only a temporary
condition that did not warrant a modification at that time. The court
memorialized its rulings in a May 25, 2022 order.
Defendant thereafter filed a motion for reconsideration of the May 25
order, raising the same arguments he had already unsuccessfully presented to
the trial court. Following oral argument, the court denied defendant's motion on
July 22, 2022. This appeal followed.
On appeal, defendant repeats the same contentions he raised before the
trial court. He asserts that: (1) "[t]he court[']s decision should be reversed where
there was an abuse of discretion"; (2) "[s]ufficient grounds exist for the [c]ourt
to reconsider the order entered on May 25, 2022"; (3) "[t]he [c]ourt cannot
modify a Matrimonial Agreement arrived by mutual consent"; (4) "[t]he [c]ourt
erred in requiring [d]efendant be solely responsible for any additional liens or
debts on the property after 2014 and that [d]efendant is solely responsible for
arrears, interest, or penalties added to the First Mortgage from his Foreclosure
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and late payments since 2014"; and (5) "[t]he [c]ourt erred in finding that
[d]efendant had failed to establish a prima facie showing of a change in
circumstances entitling him to a review of his [support] obligation."
The scope of our review of the Family Part's order is limited. We owe
substantial deference to the Family Part's findings of fact because of that court's
special expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 411-12
(1998). Thus, "[a] reviewing court should uphold the factual findings
undergirding the trial court's decision if they are supported by adequate,
substantial and credible evidence on the record." MacKinnon v. MacKinnon,
191 N.J. 240, 253-54 (2007) (alteration in original) (quoting N.J. Div. of Youth
& Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).
We owe no deference to the trial court's legal conclusions. Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). However,
we will not interfere with "'the factual findings and legal conclusions of the trial
[court] unless . . . convinced that they are so manifestly unsupported by or
inconsistent with the competent, relevant and reasonably credible evidence as to
offend the interests of justice' or when we determine the court has palpably
abused its discretion." Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010)
(second alteration in original) (quoting Cesare, 154 N.J. at 412). We will reverse
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the Family Part's decision "[o]nly when the trial court's conclusions are so
'clearly mistaken' or 'wide of the mark' . . . to ensure that there is not a denial of
justice." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)
(quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).
We review the denial of a motion for reconsideration to determine whether
the trial court abused its discretion. Cummings v. Bahr, 295 N.J. Super. 374,
389 (App. Div. 1996). "Reconsideration cannot be used to expand the record
and reargue a motion." Capital Fin. Co. of Delaware Valley, Inc. v. Asterbadi,
398 N.J. Super. 299, 310 (App. Div. 2008). A motion for reconsideration is
meant to "seek review of an order based on the evidence before the court on the
initial motion . . . not to serve as a vehicle to introduce new evidence in order to
cure an inadequacy in the motion record." Ibid. (citation omitted).
For these reasons, reconsideration should only be granted in "those cases
which fall into that narrow corridor in which either 1) the [c]ourt has expressed
its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious
that the [c]ourt either did not consider, or failed to appreciate the significance
of probative, competent evidence." Cummings, 295 N.J. Super. at 384 (quoting
D’Atria v. D’Atria, 242 N.J. Super. 392, 401-02 (Ch. Div. 1990)). Therefore,
we have held that "the magnitude of the error cited must be a game-changer for
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reconsideration to be appropriate." Palombi v. Palombi, 414 N.J. Super. 274,
289 (App. Div. 2010).
Applying these principles, defendant's arguments concerning the May 25,
July 22, and August 3, 2022 orders reveal nothing "so wide of the mark" that we
could reasonably conclude that a clear mistake was made by the trial court. The
record amply supports the court's factual findings and, in light of those findings,
its legal conclusions are unassailable. Because defendant raised the exact same
contentions in his motion for reconsideration that had already been soundly
rejected by the trial court, the court also did not abuse its discretion by denying
defendant's reconsideration motions. Cummings, 295 N.J. Super. at 389.
Affirmed.