NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0969-23
ROSALINE BIH BUH,
Plaintiff-Appellant,
v.
GABRIEL BUH KANG,
Defendant-Respondent. ________________________
Submitted February 5, 2025 – Decided April 25, 2025
Before Judges Rose and Puglisi.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1596-21.
Ratliff Jackson, LLP, attorneys for appellant (Samuel D. Jackson, on the briefs).
Gabriel Buh Kang, respondent pro se.
PER CURIAM
Plaintiff Rosaline Bih Buh appeals from the October 18, 2023 Family Part
order denying reconsideration of the July 13, 2023 Final Judgment of Divorce (FJOD). Specifically, plaintiff challenges the FJOD provision denying her
request to equitably distribute the marital home. We affirm.
The parties were married for twenty-seven years and had four children,
one of them a minor, when plaintiff filed a complaint for divorce on December
9, 2020. Plaintiff's counseled complaint sought a divorce based on
irreconcilable differences, equitable distribution of assets, alimony, custody of
the parties' minor child, counsel fees and costs.
Defendant, who was living in Africa at the time, filed a counseled answer
and counterclaim for divorce. Defendant's counterclaim sought a divorce based
on irreconcilable differences, equitable distribution of assets and debts, joint
legal and physical custody of the minor child, child support, removal of the child
to Africa, counsel fees and costs.
Plaintiff's July 16, 2021 Family Part Case Information Statement (CIS)
indicated she resided in a house in East Orange with the parties' four children.
Part E, entitled "Balance Sheet of All Family Assets and Liabilities" contained
partial information about the residence. The "Description – Real Property" was
left blank, the "Title To Property" noted "D" for defendant, the date of purchase
noted "1/2112003" [sic], the value of the asset was "unknown," and the date of
evaluation was left blank. The "Statement of Liabilities" section also contained
A-0969-23 2 partial information. The "Description – Real Estate Mortgages" was left blank,
the "Name of Responsible Party" noted "D" for defendant, the section entitled
"If you contend liability should not be shared, state reason" noted
"DEFENDANT IS SOLE OWNER," the monthly payment and total owed were
both "unknown," and the date was left blank. Part D, entitled "Monthly
Expenses" noted "unknown" for homeowner mortgage.
Defendant's January 31, 2021 CIS noted the East Orange residence as his
address, with plaintiff and their four children. In Part E, defendant provided
complete information about the residence, including the street address,
defendant as holder of title, date of purchase, value and date of evaluation.
Defendant's "Statement of Liabilities" section also provided complete
information, including the address, defendant as responsible for the mortgage,
the monthly mortgage payment, total owed and date of the balance. Part D also
listed the monthly payment amounts for the mortgage, second mortgage and
water and sewer.
The matter proceeded to trial on July 11, 2023, at which plaintiff was
represented by counsel and defendant did not appear. Plaintiff's counsel stated
she included a current CIS with her pretrial brief and a CIS was entered into
evidence, but it is not contained in the record before us.
A-0969-23 3 In addition to other relief, plaintiff sought equitable distribution of the
East Orange residence with sale proceeds to her, but did not present any
documentation of home ownership. She testified she lived in the home since it
was purchased on June 23, 2013 and defendant paid the mortgage, property taxes
and utilities. When the judge asked for evidence whether the home was
purchased or rented, counsel responded she was unsure whether she had a copy
of the mortgage with her. The court also asked whether plaintiff had conducted
a title search in preparation for trial, to which she and her counsel resp onded
they had not.
After the judge explained she could only consider the issue based on the
proofs provided, plaintiff identified an appraisal and testified to its $370,000
valuation of the home. She also explained defendant paid for the appraisal and
the appraiser emailed her the valuation. At the close of testimony, plaintiff's
counsel did not seek a continuance or additional time to produce documentation
of home ownership.
The resulting July 13, 2023 FJOD denied plaintiff any proceeds of the
marital home. The annexed letter opinion outlined the statutes and case law
governing equitable distribution. It noted the marital home as an asset, with an
A-0969-23 4 approximate value of $370,000 pursuant to the appraisal, and "[u]nknown/no
evidence provided" for the mortgage liability.
In considering equitable distribution, the court found:
As to the [m]arital home . . . , with an approximate value of $370,000, [plaintiff] was unable to produce any evidence to reflect ownership of the home or the net equity, if any. No deed or mortgage was entered into evidence and there is no proof that the house is owned instead of rented or whether there is any net equity in the home. Plaintiff testified that she has never made any payments toward the home or its maintenance. Even after defendant moved to Africa, he continued to make all payments. Plaintiff requested that the marital home be sold and receipt of 100% of the net proceeds. Of great significance, plaintiff does not even list the marital home on her [CIS]. Due to plaintiff's failure to prove any beneficial interest in the home, this court cannot grant any net proceeds of the marital home to plaintiff. However, as defendant alleges in prior pleadings that his home residence is the address of the marital home and he receives a rent subsidy, defendant should remain responsible for all payments regarding the marital home, whether owned or rented.
On August 3, 2023, twenty-one days after service of the FJOD and thus,
one day late, plaintiff moved for reconsideration of the distribution of the home.
She attached a copy of the mortgage and deed and a revised CIS "to prove [her]
ownership in the marital home." The August 3, 2023 CIS listed the property's
address with joint title, a purchase or acquisition date of June 21, 2013, and a
A-0969-23 5 value of $370,000 as of March 8, 2023. The responsibility for the mortgage was
listed as joint. In her motion, plaintiff sought fifty percent of the proceeds of
the sale of the home, and explained that if the home were sold, she and her son
would have nowhere to live and no means to find housing.
At oral argument, plaintiff's counsel was unsure of the basis on which she
moved for reconsideration but accepted the trial court's suggestion it appeared
to be Rule 4:49-2, under which the motion was time barred. Nevertheless, the
court permitted counsel to argue the merits of the motion, during which counsel
conceded she "did not intend to indicate [the court] acted arbitrarily or
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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. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0969-23
ROSALINE BIH BUH,
Plaintiff-Appellant,
v.
GABRIEL BUH KANG,
Defendant-Respondent. ________________________
Submitted February 5, 2025 – Decided April 25, 2025
Before Judges Rose and Puglisi.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1596-21.
Ratliff Jackson, LLP, attorneys for appellant (Samuel D. Jackson, on the briefs).
Gabriel Buh Kang, respondent pro se.
PER CURIAM
Plaintiff Rosaline Bih Buh appeals from the October 18, 2023 Family Part
order denying reconsideration of the July 13, 2023 Final Judgment of Divorce (FJOD). Specifically, plaintiff challenges the FJOD provision denying her
request to equitably distribute the marital home. We affirm.
The parties were married for twenty-seven years and had four children,
one of them a minor, when plaintiff filed a complaint for divorce on December
9, 2020. Plaintiff's counseled complaint sought a divorce based on
irreconcilable differences, equitable distribution of assets, alimony, custody of
the parties' minor child, counsel fees and costs.
Defendant, who was living in Africa at the time, filed a counseled answer
and counterclaim for divorce. Defendant's counterclaim sought a divorce based
on irreconcilable differences, equitable distribution of assets and debts, joint
legal and physical custody of the minor child, child support, removal of the child
to Africa, counsel fees and costs.
Plaintiff's July 16, 2021 Family Part Case Information Statement (CIS)
indicated she resided in a house in East Orange with the parties' four children.
Part E, entitled "Balance Sheet of All Family Assets and Liabilities" contained
partial information about the residence. The "Description – Real Property" was
left blank, the "Title To Property" noted "D" for defendant, the date of purchase
noted "1/2112003" [sic], the value of the asset was "unknown," and the date of
evaluation was left blank. The "Statement of Liabilities" section also contained
A-0969-23 2 partial information. The "Description – Real Estate Mortgages" was left blank,
the "Name of Responsible Party" noted "D" for defendant, the section entitled
"If you contend liability should not be shared, state reason" noted
"DEFENDANT IS SOLE OWNER," the monthly payment and total owed were
both "unknown," and the date was left blank. Part D, entitled "Monthly
Expenses" noted "unknown" for homeowner mortgage.
Defendant's January 31, 2021 CIS noted the East Orange residence as his
address, with plaintiff and their four children. In Part E, defendant provided
complete information about the residence, including the street address,
defendant as holder of title, date of purchase, value and date of evaluation.
Defendant's "Statement of Liabilities" section also provided complete
information, including the address, defendant as responsible for the mortgage,
the monthly mortgage payment, total owed and date of the balance. Part D also
listed the monthly payment amounts for the mortgage, second mortgage and
water and sewer.
The matter proceeded to trial on July 11, 2023, at which plaintiff was
represented by counsel and defendant did not appear. Plaintiff's counsel stated
she included a current CIS with her pretrial brief and a CIS was entered into
evidence, but it is not contained in the record before us.
A-0969-23 3 In addition to other relief, plaintiff sought equitable distribution of the
East Orange residence with sale proceeds to her, but did not present any
documentation of home ownership. She testified she lived in the home since it
was purchased on June 23, 2013 and defendant paid the mortgage, property taxes
and utilities. When the judge asked for evidence whether the home was
purchased or rented, counsel responded she was unsure whether she had a copy
of the mortgage with her. The court also asked whether plaintiff had conducted
a title search in preparation for trial, to which she and her counsel resp onded
they had not.
After the judge explained she could only consider the issue based on the
proofs provided, plaintiff identified an appraisal and testified to its $370,000
valuation of the home. She also explained defendant paid for the appraisal and
the appraiser emailed her the valuation. At the close of testimony, plaintiff's
counsel did not seek a continuance or additional time to produce documentation
of home ownership.
The resulting July 13, 2023 FJOD denied plaintiff any proceeds of the
marital home. The annexed letter opinion outlined the statutes and case law
governing equitable distribution. It noted the marital home as an asset, with an
A-0969-23 4 approximate value of $370,000 pursuant to the appraisal, and "[u]nknown/no
evidence provided" for the mortgage liability.
In considering equitable distribution, the court found:
As to the [m]arital home . . . , with an approximate value of $370,000, [plaintiff] was unable to produce any evidence to reflect ownership of the home or the net equity, if any. No deed or mortgage was entered into evidence and there is no proof that the house is owned instead of rented or whether there is any net equity in the home. Plaintiff testified that she has never made any payments toward the home or its maintenance. Even after defendant moved to Africa, he continued to make all payments. Plaintiff requested that the marital home be sold and receipt of 100% of the net proceeds. Of great significance, plaintiff does not even list the marital home on her [CIS]. Due to plaintiff's failure to prove any beneficial interest in the home, this court cannot grant any net proceeds of the marital home to plaintiff. However, as defendant alleges in prior pleadings that his home residence is the address of the marital home and he receives a rent subsidy, defendant should remain responsible for all payments regarding the marital home, whether owned or rented.
On August 3, 2023, twenty-one days after service of the FJOD and thus,
one day late, plaintiff moved for reconsideration of the distribution of the home.
She attached a copy of the mortgage and deed and a revised CIS "to prove [her]
ownership in the marital home." The August 3, 2023 CIS listed the property's
address with joint title, a purchase or acquisition date of June 21, 2013, and a
A-0969-23 5 value of $370,000 as of March 8, 2023. The responsibility for the mortgage was
listed as joint. In her motion, plaintiff sought fifty percent of the proceeds of
the sale of the home, and explained that if the home were sold, she and her son
would have nowhere to live and no means to find housing.
At oral argument, plaintiff's counsel was unsure of the basis on which she
moved for reconsideration but accepted the trial court's suggestion it appeared
to be Rule 4:49-2, under which the motion was time barred. Nevertheless, the
court permitted counsel to argue the merits of the motion, during which counsel
conceded she "did not intend to indicate [the court] acted arbitrarily or
unreasonably" and "did not raise any new issues," but "just wanted [the court]
to reconsider three items that weren't in the [FJOD]."
The court's October 18, 2023 order denied the motion for reconsideration
because it was untimely and the twenty-day time limitation could not be relaxed
per Rule 1:3-4(c) and Baumann v. Marinaro, 95 N.J. 380, 388 (1984). The court
also explained the documents attached to the motion were not "differentiated
from the text of a certification or affidavit by the use of label dividers before
each exhibit or some other means" in contravention of Rule 5:5-4(g).
Notwithstanding the time bar, the court considered the merits of the
motion, noting plaintiff was represented by counsel at trial who "had adequate
A-0969-23 6 opportunity to obtain through discovery and due diligence the information
needed to prove her ownership in the home" and could not meet the standard for
reconsideration because she provided "no sound legal basis on which she was
entitled to relief." The court further found plaintiff's attempt to expand the
record with additional documentation was improper.
Plaintiff, represented by new counsel on appeal, argues the trial court
erred by: failing to properly apply equitable principles; failing to acknowledge
plaintiff's non-financial contribution and resulting beneficial interest in the
marital home; basing its decision on narrow portions of the parties' CIS; failing
to consider key facts; and improperly assigning plaintiff the burden of proving
her beneficial interest in the marital home.
Our review of Family Part orders is narrow. Cesare v. Cesare, 154 N.J.
394, 411-13 (1998). We "accord particular deference to the Family Part because
of its 'special jurisdiction and expertise' in family matters," Harte v. Hand, 433
N.J. Super. 457, 461 (App. Div. 2013) (quoting Cesare, 154 N.J. at 413), and
will not overturn the Family Part's findings of fact when they are "supported by
adequate, substantial, credible evidence," Cesare, 154 N.J. at 412. A reviewing
court will also not disturb the Family Part's factual findings and legal
conclusions that flow from them unless they are "so manifestly unsupported by
A-0969-23 7 or inconsistent with the competent, relevant and reasonably credible evidence
as to offend the interests of justice." Ricci v. Ricci, 448 N.J. Super. 546, 564
(App. Div. 2017) (quoting Elrom v. Elrom, 439 N.J. Super. 424, 433 (App. Div.
2015)). We review a Family Part's legal determinations de novo. Id. at 565.
We also review a trial judge's decision on whether to grant or deny a
motion for reconsideration under Rule 4:49-2 for an abuse of discretion. Branch
v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021). "An abuse of discretion
'arises when a decision is "made without a rational explanation, inexplicably
departed from established policies, or rested on an impermissible basis."'"
Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382
(App. Div. 2015) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571
(2002)).
We begin with the rules governing the timeliness of an appeal of a final
judgment. An appeal of a final judgment must be filed within forty-five days of
the entry of the final judgment. R. 2:4-1(a). This time period may be extended
upon motion only for a period of thirty days upon "a showing of good cause and
the absence of prejudice." R. 2:4-4(a). Thus, the maximum period in which to
appeal from a final judgment, assuming an extension is granted, is seventy -five
days.
A-0969-23 8 The time to appeal is tolled by the filing of a motion for reconsideration,
but only if the motion is timely made. R. 2:4-3(e). A motion for reconsideration
must be served not later than twenty days after service of the judgment or order
being reconsidered. R. 4:49-2. The time period in which to file a motion
reconsideration may not be enlarged. R. 1:3-4(c).
Because the FJOD was filed and served on the parties July 13, 2023,
plaintiff had until August 2, 2023 to file a motion for reconsideration. She filed
the motion on August 3, one day late. Because the motion was not filed within
time, the trial court lacked jurisdiction to consider its merits. See Murray v.
Comcast Corp., 457 N.J. Super. 464, 471 (App. Div. 2019) (holding the trial
court does not have subject matter jurisdiction to consider a motion for
reconsideration of a final judgment filed outside the twenty-day period allowed
by Rule 4:49-2). We are therefore constrained to affirm the denial of the motion
for reconsideration on procedural grounds.
Plaintiff filed her notice of appeal on November 30, 2023, within time as
to the October 18, 2023 order on the motion for reconsideration but beyond even
the seventy-five-day extended deadline to appeal the July 13, 2023 FJOD.
Because we are without discretion to extend this timeframe beyond seventy-five
days, we are precluded from reviewing the FJOD. "Where the appeal is
A-0969-23 9 untimely, the Appellate Division has no jurisdiction to decide the merits of the
appeal." Ricci v. Ricci, 448 N.J. Super. 546, 565 (App. Div. 2017) (quoting In
re Hill, 241 N.J. Super. 367, 372 (App. Div. 1990)).
Affirmed.
A-0969-23 10