NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

The opinion of the court was delivered by

NUGENT, J.A.D.

This action returns to us after a remand to the Family Part. Following the parties' divorce in September 2009, defendant Clayton Hertzoff appealed from parts of the Dual Final Judgment of Divorce (JOD) concerning equitable distribution, alimony, child support, emancipation of the older of the parties' two daughters, and the award of attorney's fees. We affirmed in part, reversed in part, and remanded the action to the trial court. Hertzoff v. Hertzoff, No. A-0776-09 (App. Div. October 27, 2011). We remanded the case for the trial court to do, among other things, the following: (1) resolve any outstanding disputes over distribution of the proceeds from the sale of the marital residence (the sale proceeds); (2) provide the parties the opportunity to present alternative proofs of the value of their vehicles, as the trial court disregarded their stipulation and failed to provide them with the opportunity to present proofs; and (3) reconsider its decision emancipating the parties' oldest daughter after evaluating the Newburgh1 factors, which the court had not considered in its original decision. Hertzoff, supra, (slip op. at 10-22).

In this appeal, defendant contends the trial court erred and abused its discretion by failing to do the following: (1) reconcile the stipulations of the parties concerning distribution of the sale proceeds; (2) give credit to him for paying the car loans; (3) and consider all the Newburgh factors and conduct a plenary hearing before deciding that the previous decision to emancipate the older daughter was correct, and order properly calculated child support for her; and (4) give credit to defendant for certain medical and college expenses, an issue we disposed of in our previous decision, which defendant did not appeal. Defendant also contends the trial court erred by denying his motion for reconsideration and awarding counsel fees to plaintiff Deborah Hertzoff. Having considered defendant's arguments in light of the record and controlling law, we affirm.

I.

The parties' backgrounds and marital history are detailed in our previous opinion and need only be briefly summarized. Two daughters who were born during the parties' twenty-three year marriage. When the parties separated, the older daughter remained with defendant, and the younger with plaintiff.2 Plaintiff filed for divorce in 2008 and the action was tried in 2009. Following entry of the JOD, defendant appealed. As previously explained, we reversed in part and remanded the matter to the trial court.

While the appeal was pending, the parties filed several motions seeking either to stay or enforce the JOD or correct clerical errors. When we remanded the matter, defendant had pending a motion seeking to enforce the JOD by compelling plaintiff to reimburse him for certain expenses, and plaintiff had pending a cross-motion to compel defendant to pay other expenses.

Following our remand, the court conducted a hearing on the pending motions and a case management conference.3 The parties subsequently submitted letters to the court concerning their positions on outstanding issues. On April 13, 2012, the court issued an order and letter opinion "to resolve the various [m]otions and [c]ross [m]otion issues, and to assist the parties in resolving those [a]ppellate remand items, but, mostly to put an end to the back and forth between the parties and their counsel[.]" In its letter opinion, the court noted that the parties had agreed to equitably distribute the $150,000 defendant had set aside for their daughters' education from the sale proceeds, subject to adjustments for interest and expenses.

The court ordered the parties to submit their positions on the valuation of their automobiles within thirty days. As for the older daughter's emancipation, the court was "unable to discern any facts to support defendant's position that [the older daughter] was not emancipated." The court noted that in a certification submitted by defendant, he admitted that his older daughter had since been emancipated "but does not take a position as to the date." The court directed the parties to submit certifications on the issue.

Following additional submissions by the parties, and without conducting a hearing, the court entered an order on June 27, 2012. The order did not address distribution of the sale proceeds. It required defendant to pay plaintiff one-half of the difference between the values of the automobiles based upon "Kelly Blue Book values;" emancipated the older daughter effective as of the date she graduated from college, which was the same decision the court had previously made following trial; confirmed the younger daughter's emancipation; and resolved issues concerning an insurance policy and an IRA which are not relevant to this appeal. The court order also stated: "Any other issue brought forth by either party which is not specifically addressed herein shall be denied." The court entered an implementing order.

Defendant moved for reconsideration. Plaintiff cross-moved for an order compelling defendant to pay plaintiff her share of the sale proceeds, the credit he owed for the automobiles, and attorneys' fees and costs. The court denied defendant's motion, granted plaintiff's cross-motion in part, and ordered defendant to pay plaintiff's counsel $3,000 in fees and costs. Defendant appealed.

II.

We begin our analysis with the principles that control our review of the trial court's decisions. Family Part judges have special expertise in deciding issues that arise in the field of domestic relations. Cesare v. Cesare, 154 N.J. 394, 412 (1998). For that reason, we defer to their findings when they are supported "by adequate, substantial and credible evidence." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (quoting Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 424 (1974).

We evaluate Family Part decisions concerning equitable distribution under an abuse of discretion standard. See Borodinsky v. Borodinsky, 162 N.J.Super. 437, 443-44 (App. Div. 1978). When applying that standard, "[w]e must determine `whether the trial court mistakenly exercised its broad authority to divide the parties' property or whether the result reached was bottomed on a misconception of law or findings of fact that are contrary to the evidence.'" Sauro v. Sauro, 425 N.J.Super. 555, 573 (App. Div. 2012) (quoting Genovese v. Genovese, 392 N.J.Super. 215, 223 (App. Div. 2007)), certif. denied, 213 N.J. 389 (2013). Similarly, because the decision to emancipate a minor child from his or her parents necessarily involves a Family Court's inherent equitable powers, Dolce v. Dolce, 383 N.J.Super. 11, 18, (App. Div. 2006), we review such a decision under an abuse of discretion standard. See Sears Mortg. Corp. v. Rose, 134 N.J. 326, 354 (1993).

We also generally defer to the trial court's judgment as to whether a plenary hearing is necessary. Jacoby v. Jacoby, 427 N.J.Super. 109, 123 (App. Div. 2012). A plenary hearing is required only in those cases where the affidavits show that there is a genuine issue as to a material fact and the trial judge determines that a plenary hearing would be helpful in deciding such factual issues. Ibid.

With those standards in mind, we turn to the issues defendant raises concerning equitable distribution: first, that the court on remand did not "reconcile the stipulations of the parties as it relates to the equitable division of the [sale] proceeds"; second, that after accepting defendant's valuation of the parties' automobiles, the court did not give him proper credit for paying the car loans from the marital proceeds.

Defendant asserts that the remand court ignored the parties' trial stipulations concerning the sale proceeds and failed to reconcile them. However, defendant did not raise the issue on remand.

In our previous decision, we did not address this issue because the parties led us to believe that they had settled it.

We explained this as follows:

On remand, the trial court would have justifiably read our opinion to mean what it said: if the parties had any remaining dispute about minor residual discrepancies concerning the subject of their stipulations — deductions from the sale proceeds — the parties could present them to the court on remand and have them resolved. Nothing in the record before us establishes defendant raised the issue on remand. As we have discussed, following remand, the court conducted a management conference after which plaintiff "reported back" to the court "as to specific issues." The plaintiff did not address the issue concerning distribution of sale proceeds. Two days after plaintiff sent the letter, defendant responded but did not address any issues concerning the marital home. If defendant raised the issue at the management conference, he has provided no documentation that he did so.

In the April 2012 order the court issued following the management conference, the court noted that we had affirmed the trial court's ruling that the $150,000 defendant deducted from the sale proceeds was subject to equitable distribution. The court also noted that the parties had agreed to certain expenses and that interest should be added to the base sum and the interest divided equally. The court stated that plaintiff's figure was the correct one "subject to further interest earnings which the parties must split equally." Defendant has not appealed from that order.

Defendant emphasizes as erroneous the trial court's determination following the trial, before the first appeal, that plaintiff was to receive fifty-five percent of the net proceeds. There is no evidence in the record that defendant raised that issue after the appeal, on remand, before the court on remand entered its June 2012 order resolving the remaining issues in dispute. Defendant's argument in his appellate brief contains one citation to the record of the remand proceedings concerning the issue. That reference is to defendant's certification in support of his motion for reconsideration. In that certification, defendant first states:

Defendant then stated:

Despite that statement, defendant did not specify in his certification what unresolved disputes remained following settlement. He did state that he was seeking an adjustment of the remaining net sale proceeds based on an equal distribution of those proceeds.

Even if we were to construe the foregoing statements as somehow alerting the trial court to the issue which defendant now raises on appeal, the issue was improperly raised for the first time on a motion for reconsideration. See Cummings v. Bahr, 295 N.J.Super. 374, 384 (App. Div. 1996). Because defendant did not properly raise the issue before the trial court, we decline to consider it. See Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (explaining that appellate courts should not review issues not properly presented to the trial court when an opportunity for such a presentation was available unless such issues are jurisdictional or concern matters of great public interest).

The second equitable distribution issue defendant raises is the value of the parties' automobiles. Because the trial judge had rejected the parties' stipulation concerning the value of the vehicles, and had used an alternative method without informing the parties or providing them with an opportunity to be heard, we remanded the matter "for the trial court to provide the parties with an opportunity to produce evidence as to the value of the vehicles." On remand, the court accepted defendant's valuation of the automobiles. Defendant's argument that the court did not give him credit for paying the car loans from marital proceeds is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We turn to defendant's argument that the court on remand erred in deciding that the parties' older daughter was emancipated upon graduation from college. Defendant asserts:

We disagree.

In the previous appeal, we remanded the issue of the older daughter's emancipation because the trial court had determined she was emancipated simply because she had graduated from college, even though she thereafter pursued an Associate in Applied Science Degree to become a dental hygienist. Noting that the trial court's decision was contrary to the Supreme Court's decision in Newburgh, we remanded for the trial court to "evaluate the factors enumerated in Newburgh in deciding whether the older daughter should have been emancipated." Hertzoff, supra, (slip op. at 23). We further explained:

[Hertzoff, supra (slip op. at 23).]

In Newburgh, the Supreme Court held that in evaluating whether a party is obligated to pay for the cost of their child's higher education, courts should consider all relevant factors, including:

"`Six years [after Newburgh was decided], the Legislature essentially approved those criteria when amending the support statute, N.J.S.A. 2A:34-23(a).'" Gac v. Gac, 186 N.J. 535, 543 (2006) (alteration in original).

In its opinion on remand, the court ordered that the older daughter "shall be emancipated effective with the date of her graduation from [college]." The court explained its reasons in its letter opinion:

The court clearly considered a majority of the Newburgh factors. More significantly, the court's June 2012 decision was supported by evidence that was mostly undisputed. It is important to distinguish the facts before the court in June 2012 when it made its decision, from those that were before the court when it denied defendant's motion for reconsideration, which we address later in this opinion.

When the court made its decision in June 2012, it was undisputed that the parties' older daughter was an adult who had graduated from college. Those facts "establishe[d] prima facie, but not conclusive, proof of emancipation." Newburgh, supra, 88 N.J. at 543. Defendant submitted his certification and a certification from his older daughter to support his position that she had not been emancipated upon graduation from college. Neither established that the eleven factors enumerated by the Court in Newburgh refuted the prima facie case of emancipation.

The certifications of defendant, plaintiff, and their older daughter established that she attended college from 2005 through 2009 during which time she studied biology, graduating with a Bachelor of Science Degree. She studied biology because she intended to pursue a post-graduate degree in physical therapy. Sometime after entering college, she changed her mind and decided to pursue a post-graduate degree in prosthetics and orthotics with the intention of going into the family business. When the family business was sold, she decided to become a dental hygienist. She applied for and was accepted into a dental hygiene program at a college in Edison. According to plaintiff's certification, which included a document from that college's website, the program the parties' daughter was pursuing required a high school education but not a college degree.

The question confronting the trial court in June 2012 was whether the parties' older daughter should have been emancipated upon graduation from college, as the trial court had determined, or whether she should have been emancipated after she completed her course of studies to become a dental hygienist, as defendant claimed. In deciding that issue, the court determined in its letter opinion that plaintiff had had no significant relationship with her older daughter for many years, and that her older daughter "clearly did not continue in plaintiff's sphere of influence and control. [The older daughter's] decisions were made without the input or consent of plaintiff." Nothing in the certifications of defendant and his older daughter refute that finding. Defendant could not credibly refute it; he stated in a certification filed in opposition to one of plaintiff's enforcement motions, "as this [c]ourt is not yet aware of, I have been alienated from [the younger daughter] for many years, as well as plaintiff being alienated from [the older daughter]."

In her certification following the court's April 2012 order, plaintiff averred that her older daughter was a fully functioning adult who, since age seventeen, had taken care of herself on a day-to-day basis. Plaintiff further averred that her daughter would have made the decision to attend dental hygienist school whether plaintiff or defendant approved of the decision or not. Neither defendant nor the older daughter refuted those averments in their certifications. In fact, in their certifications, they both confirmed that the daughter made the decision to become a dental hygienist.

Nor was there any dispute concerning the court's finding that "plaintiff's background does not speak to a guarantee of post-college education or training" or the court's finding that plaintiff's "assets were clearly . . . needed . . . to support herself going forward." Plaintiff had so averred in her certification and defendant's certification did not refute those averments.

The court also found, based on plaintiff's certification, that the older daughter had made no effort to incur any loans or any other type of financing "with defendant's open pocketbook available to her." Thus, the court's determination that the older daughter did not attempt to fund her post-graduate training through loans because her father paid all of her bills was fully supported by the record and unrefuted by either defendant's or his older daughter's certification. Further, the older daughter never specified an amount which she sought from plaintiff. In evaluating the foregoing factors, the court obviously considered the financial resources of both parents.

The certifications of the parties did disclose a factual dispute about whether plaintiff ever agreed to contribute toward their older daughter's post-graduate education. Defendant certified that when their daughter graduated from high school, she initially "wanted to go to physical therapy school and [plaintiff] and I agreed to pay for her college education." Defendant further averred that his daughter changed plans while in college, first "to follow in [his] footsteps and to go to school to learn prosthetics and orthotics and work in the family business with [him]"; then to become a dental hygienist. According to defendant, "plaintiff acknowledged that she was prepared to pay for `their older daughter' to go to school for prosthetics and orthotics." He argues that plaintiff's "acknowledgment" was, in effect, an agreement to pay for post-graduate education, and the fact that her older daughter changed her mind about the field of study does not alter the fact that plaintiff agreed to contribute toward the post-graduate degree. Plaintiff, on the other hand, denied in her certification that she had ever agreed to pay for her daughter's post-graduate education.

Although the conflicting certifications clearly establish that a factual dispute existed as to one Newburgh factor, we do not conclude that the court's finding to the contrary requires reversal. That factual dispute is of little significance in light of the other Newburgh factors, particularly the absence of any meaningful relationship between plaintiff and her older daughter and plaintiff's financial situation.

Defendant argues that the court did not consider the following Newburgh factors: two (the effect of the background, values, and goals of the parent on the reasonableness of the expectation of the child for higher education); five (the relationship of the requested contribution to the kind of school or course of study sought by the child); six (the financial resources of both parents); seven (the commitment to and aptitude of the child for the requested education); eight (the financial resources of the child, including assets owned individually or held in custodianship or trust; and nine (the ability of the child to earn income during the school year or on vacation). We disagree that the court did not consider all of those factors.

Plaintiff averred in her certification that her "educational background is modest," that she was a high school graduate and did not attend college, and that she currently worked in retail, earning approximately $33,000 per year. Although she supported her older daughter's decision to become a dental hygienist, plaintiff "never considered a college education a `must' for me or for our children." That averment supported the court's finding that "plaintiff's background does not speak to a guarantee of post-college education or training. She was a high school graduate."

The court considered, either explicitly or implicitly, the relationship of the requested contribution to the kind of school or course of study sought by the child (factor five) and the financial resources of both parents (factor six). The court addressed the older daughter's commitment to an aptitude for the requested education by noting in its opinion that "[s]he graduated . . . with an applied science associate's degree in dental hygiene. The parties' older daughter completed the program." The court also commented explicitly on plaintiff's financial condition, and implicitly on defendant's by noting that their daughter did not need to obtain her own financial aid in view of defendant's financial support.

The court's June 2012 decision reflects no consideration of the financial resources of the child (factor eight), the ability of the child to earn income during the school year or on vacation (factor nine), or the relationship of the education requested to any prior training and to the overall long range goals of the child (factor twelve). However, there was little or no evidence presented for the court to consider as to those factors.

As to the child's financial resources and ability to earn income during school and while on vacation, there was no evidence for the court to consider on those issues. That is not a reason for reversing the court's decision. As we previously pointed out, the fact that the parties' older daughter was an adult who had graduated from college established a prima facie case of emancipation. Defendant's failure to adduce competent evidence on the issues concerning the daughter's financial responsibility simply meant that those factors were not available to refute the prima facie case of emancipation.

Defendant argues that there was evidence from his trial testimony as well as his and his older daughters' certification that his daughter attended a full-time dental hygienist program "both in the classroom and in the lab which would prevent [the daughter] from earning any type of income while taking this program." However, defendant testified at trial that because his daughter was "going full-time, she's not really in a position to work." In his certification as well as that of his daughter, they aver that because she was attending school full-time she was unable to work full-time and support herself financially. Those averments did not address her ability to earn income during the school year or on vacation.

As to the relationship of the education requested to any prior training, there was no relationship. Plaintiff not only certified that the dental hygienist program their older daughter attended did not require an undergraduate degree, but also supported that averment with documentation from the website of that program. Obviously that would have militated in favor of emancipation.

In short, we conclude that, with one exception, the court's decision concerning emancipation of the parties' older daughter was supported by plaintiff's certification that was, in most material respects, unrefuted by the certification of either defendant or the parties' older daughter. The absence of evidence as to some of the Newburgh factors did not undermine the prima facie case of emancipation. Further, the Newburgh factor to which there was a material dispute was relatively insubstantial compared to the others that supported the court's decision that the older daughter had been emancipated upon graduation from college.

In view of our conclusion that the parties' older daughter was emancipated upon her graduation from college — the same decision the trial court had reached — we need not address the arguments regarding the plaintiff's responsibility for providing child support after her older daughter's college graduation.

Defendant also argues that the court erred by not conducting a plenary hearing. He points out that in its April 2012 order, the court stated that "unless the parties are able to decide the issue among themselves, there will have to be a plenary hearing." However, in the same order, the court stated:

As previously noted, we generally defer to the trial court's judgment as to whether a plenary hearing is necessary. Jacoby, supra, 427 N.J. Super. at 123. Here, where the certifications submitted by the parties demonstrated a dispute of material fact as to only one of the Newburgh factors, and given the relative insignificance of that factor in relation to the others in the circumstances of this case, we conclude the court did not abuse its discretion by deciding that a plenary hearing would not be helpful in deciding the emancipation issue.

Although not raised in his point heading, defendant also argues that the court should have conducted oral argument. We agree with that proposition, but under the narrow circumstances here, we do not find that the court's failure to do so constitutes ground for a remand. That would be an exercise in futility. Defendant has now had two opportunities to make his case that his older daughter was not emancipated upon her graduation from college. He had that opportunity at trial, and he had that opportunity again on remand when the court ordered him to submit certifications concerning the issue. He failed on both occasions. The facts are unrefuted that the parties' older daughter has had no significant relationship with her mother since well before she graduated from college, and that she did not need to attend college to become a dental hygienist. The older daughter needed no financial aid, and made no effort to obtain it. She has completed her dental hygienist studies and is now emancipated. Moreover, defendant has argued and fully briefed the emancipation issue before us. We fail to discern how any of his arguments would have altered the trial court's decision.

We have considered defendant's remaining arguments on the issue of emancipation and find them to be without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Defendant next argues that the court on remand erred by failing to give any credit to defendant for the children's college expenses. We affirmed the trial court's disposition of that issue in the previous appeal.

We explained:

Defendant did not appeal from our decision. Defendant is not entitled to a second appeal on that issue. Our judicial system "contemplates one appeal as of right to a court of general appellate jurisdiction." Midler v. Heinowitz, 10 N.J. 123, 129 (1952); State v. Fletcher, 174 N.J.Super. 609, 614, (App. Div. 1980), certif. denied, 89 N.J. 444, (1982). See also In re Application of Li Volsi, 85 N.J. 576, 592 n.17 (1981).

We now turn to defendant's motion for reconsideration. A motion for reconsideration is addressed to the "sound discretion of the [c]ourt, 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)) (internal quotation marks omitted). Reconsideration is reserved for "cases which fall into that narrow corridor" where the prior decision was "based upon a palpably incorrect or irrational basis," failed to consider or appreciate "probative, competent evidence," or where a "litigant wishes to bring new or additional information to the [c]ourt's attention which it could not have provided on the first application." D'Atria, supra, 242 N.J. Super. at 401.

Defendant did not satisfy that standard. He did provide an additional certification that recounted some of the evidence in previous certifications he had filed and reiterated many of the arguments that he had made following the trial, on previous motions, and in his first appeal. He also expanded his contentions in support of his argument that his older daughter should not have been emancipated upon her graduation from college. Yet, defendant did not provide any satisfactory explanation as to why he had not included the information in his previous certification. It certainly was not new or additional information.

The court denied the motion, finding, among other things, that defendant

We agree with the court's assessment. Accordingly, we affirm the order denying the motion for reconsideration.

Lastly, defendant contests the counsel fees the court awarded to plaintiff on the motion for reconsideration. "An allowance for counsel fees and costs in a family action is discretionary." Eaton v. Grau, 368 N.J.Super. 215, 225 (App. Div. 2004). In determining whether a counsel fee award is merited, courts consider several factors, including the requesting party's need, the other party's financial ability to pay, and the requesting party's good faith in instituting or defending the action. Williams v. Williams, 59 N.J. 229, 233 (1971). Similarly, Rule 5:3-5(c) permits a court to award counsel fees after careful consideration of the following factors:

See also R. 4:42-9(a) (enumerating limited instances when counsel fees are available).

In its decision on the reconsideration motion, the court found that defendant's filing of the motion for reconsideration "was done in bad faith." It stated that there was no mandate in our previous opinion for either oral argument or a plenary hearing, and it was in the court's discretion whether to grant such proceedings. The court also noted that plaintiff "receives alimony to supplement her salary of $30,000 earned in retail [and] . . . still awaits equitable distribution three plus years after the Final Judgment of Divorce." For those reasons, the court ruled that plaintiff was not in a position to pay unnecessary counsel fees and costs. The court found plaintiff's counsel's hourly rate and number of hours to be reasonable and ordered defendant to pay $3000.

Defendant points out that in the court's April 13, 2012 opinion, it asserted that "[n]either party has proceeded with their filing in bad faith." This was a true statement at that stage of the litigation. However, the court deemed defendant's filing of the motion for reconsideration to be done in bad faith. It stated that defendant "refuses to accept the [o]rders of the [c]ourt and its rationale for said [o]rders." We discern no abuse of discretion in the court's awarding of fees and costs.

We have considered defendant's remaining arguments and find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirm.