Opinion
DOCKET NO. A-2262-14T2
10-07-2016
D.G., Plaintiff-Respondent, v. G.M., Defendant-Appellant.
James J. Moloughney, LLC, attorney for appellant. Lane & Lane, LLC, attorneys for respondent (Eric J. Lane, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Fisher and Vernoia. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-003-13. James J. Moloughney, LLC, attorney for appellant. Lane & Lane, LLC, attorneys for respondent (Eric J. Lane, on the brief). PER CURIAM
Defendant G.M. (Gaby) appeals from a December 3, 2014 Family Part order denying her motion for reconsideration and awarding attorney's fees to defendant D.G. (David). Gaby had sought reconsideration of those portions of an October 1, 2014 order directing that supervised visits of her and David's child take place in Bergen County, directing reunification therapy between David and the child, finding Gaby in violation of four paragraphs of a March 17, 2014 order, imposing a ten-hour community service sanction against Gaby, and requiring Gaby to pay David's counsel fees.
We employ initials and pseudonyms to protect the privacy of the parties' minor daughter.
I.
A.
Our consideration of the issues on appeal is somewhat illuminated by the prior trial court proceedings which we briefly summarize.
David and Gaby were married and had one child, a daughter, born in 2003. The parties separated in 2004.
At some time prior to May 21, 2008, Gaby filed a non-dissolution complaint in the Family Part in Somerset County requesting that David pay child support for their child. In an order dated May 21, 2008, the Family Part in Somerset County granted Gaby's request for an increase in David's child support obligation.
The docket number for the Somerset non-dissolution proceeding was FD-18-329-08.
At some time prior to July 23, 2008, David filed a complaint for divorce in the Family Part in Bergen County. On July 23, 2008, the parties entered into a consent order in the Bergen County matter regarding custody, parenting time, and decision-making for their daughter.
The docket number for the Bergen County divorce action was FM-02-1799-08. The record does not reflect the filing date of the complaint for divorce.
The parties were divorced on January 12, 2009, with the entry of a final judgment of divorce entered by the Family Part in Bergen County. On February 13, 2009, the parties consented to the entry of an amended dual judgment of divorce (amended judgment). The amended judgment modified the custody and parenting time arrangement set forth in the July 23, 2008 consent order and included a child support obligation for David that was consistent with the amount he had been directed to pay in the Somerset County non-dissolution matter.
In April 2013, David filed a motion in Bergen County requesting a modification of his child support obligation and enforcement of the parenting time provisions of the amended judgment. He asserted that Gaby denied him access to his daughter for the parenting time permitted and required under the amended judgment.
David made other requests in his motion that are not relevant to the issues on appeal, including requests for a change in venue of the Somerset County proceeding to Bergen County and for reinstatement of his passport.
In April 2013, Gaby moved for a change of venue for the post-judgment proceedings from Bergen County to Somerset County. She also sought sole residential and legal custody of the parties' daughter and termination of David's parenting time.
On May 3, 2013, the parties appeared before the Family Part in Bergen County. After hearing oral argument on the motions, the court entered an order granting Gaby's request for a change of venue to Somerset County and merging the Bergen Country matrimonial matter with the non-dissolution proceeding in Somerset County. The court denied Gaby's request for sole custody of the parties' daughter.
The court denied David's requests for a reduction in his child support obligation and for enforcement of the parenting time schedule. The court granted his request for a recalculation of his child support obligation based upon an "other dependent deduction" and also ordered that he have supervised visitation with his daughter through the Bergen County Supervised Visitation Program (BCSVP). The court entered a separate order on May 3, 2013, directing that the parties participate in the BCSVP and immediately telephone the program for their respective intake appointments.
Following the change of venue, Gaby moved before the court in Somerset County for an increase in child support, sole custody of the parties' daughter, and termination of David's parenting time with the child. David cross-moved for an order finding Gaby in violation of the May 3, 2013 order granting him supervised parenting time and directing that Gaby schedule the court ordered intake appointment with the BCSVP. David also requested that the court sanction Gaby for her failure to comply with the May 3, 2013 order, issue a warrant for Gaby's arrest, require Gaby to perform community service pursuant to Rule 5:3-7(a) in the event Gaby failed to make arrangements for her intake appointment within fifteen days, and award counsel fees.
David's motion requested other relief that is not relevant here.
The court denied Gaby's motion in an August 21, 2013 order with an attached statement of reasons. The judge granted portions of David's motion and, in pertinent part, directed that Gaby arrange for her intake interview with the BCSVP within fifteen days. The court further ordered that if Gaby did not schedule her intake appointment within fifteen days, she "[would] be sanctioned $25 per day pursuant to [R.] 5:3-7(a)(2) and (7) until she complies."
On December 23, 2013, the parties attended a case management conference before the Family Part judge. Efforts to have the parties' reach an agreement concerning David's parenting time were unsuccessful. Additional motion practice followed.
In a March 17, 2014 order the court denied David's requests for unsupervised parenting time, sanctions against Gaby for violating the August 21, 2013 order, and an award of counsel fees. Paragraph one of the order, however, directed that the parties commence David's supervised parenting time. The court rejected Gaby's assertion that an alleged disability prevented her from complying with the requirement that David's supervised parenting time take place in Bergen County and denied David's request that Gaby provide documentation concerning the purported disability.
The court found that Gaby did not provide evidence of a disability and directed that Gaby comply with all of the court's orders "as if she does not have a disability[]." The court further ordered that if Gaby did not comply with the court's directives, David could submit a certification of noncompliance and the court would consider the imposition of sanctions and other relief. The court advised that "[i]f [Gaby] wishe[d] to demonstrate the existence of a disability and to modify the court's order . . . she must file a new application with the court with appropriate proofs of the existence of a disability."
Paragraph three of the March 17, 2014 order directed that the child participate in reunification therapy with David at least twice per month. Paragraphs six and seven of the March 17, 2014 order required the parties to exchange financial information, including pay stubs, case information statements, and tax returns within thirty days. Gaby was also directed to provide specified documentary proof regarding her settlement of a lawsuit.
David subsequently filed a certification of noncompliance detailing what he alleged were Gaby's violations of the court's March 17, 2014 order and requesting the imposition of sanctions and the award of counsel fees. On June 18, 2014, the court entered an order finding Gaby in violation of paragraph one of the March 17, 2014 order by failing to cooperate in the scheduling of David's supervised parenting time. The order further directed that David's counsel submit a warrant for the civil arrest of Gaby and deferred consideration of additional sanctions pending her appearance before the court.
As a result of a conference among the court and counsel following entry of the June 18, 2014 order and correspondence to the court from Gaby's counsel, an arrest warrant for Gaby was not issued. Gaby's counsel's represented to the court that Gaby "has agreed to cooperate in the supervised visitation of her daughter with the David," "made arrangements for another intake interview" with the BCSVP, and "promised to have [the child] present . . . when required to do so by the Bergen County program director."
B.
We now turn to a description of the more recent proceedings that directly relate to the issues raised on appeal.
In August 2014, Gaby filed a pro se application requesting that the supervised visitation be transferred to Somerset County due to her alleged disability. She also requested that the court recalculate David's child support obligation, grant permission for the issuance of a passport for the child, reject any consideration of unsupervised parenting time for David, and grant full custody to Gaby if David lost contact with the child without good cause.
David filed opposition to Gaby's motion and a cross-motion. David requested that the court find Gaby in violation of paragraph one of the court's March 17, 2014 order requiring Gaby to cooperate in David's supervised parenting time, paragraph three of the order requiring Gaby to schedule reunification therapy, and paragraphs six and seven requiring that Gaby provide specified financial information. David requested that the court impose sanctions for the violations and award attorney's fees. Gaby did not file any papers or submit any evidence in opposition to David's cross-motion.
On September 26, 2014, the parties presented argument on the motions before Judge Anthony F. Picheca, Jr. In an October 1, 2014 order and attached statement of reasons, Judge Picheca denied Gaby's motion for a modification of child support based upon her purported disability and denied as moot Gaby's requests for a change of venue and a prohibition against future unsupervised parenting time by David. The court granted a request to transition the location of David's supervised parenting time from Bergen County to Somerset County within a six-month period. Gaby's request for sole custody of their daughter if David lost contact with the child was denied.
The court's October 1, 2014 order also addressed David's motion to find Gaby in violation of litigant's rights based upon her failure to comply with paragraphs one, three, six, and seven of the March 17, 2014 order. The court granted the motion, finding that Gaby failed to cooperate in David's supervised visitation as ordered, failed to comply with the court ordered reunification therapy, and failed to provide the financial information as ordered. The court directed that Gaby perform ten hours of community service as a sanction and directed that she pay David's counsel fees in the amount of $3537.
Gaby subsequently obtained counsel and filed a motion for reconsideration of the court's October 1, 2014 order. David cross- moved for the imposition of further sanctions and an award of additional counsel fees. Judge Picheca heard argument and on December 3, 2014, issued an order and detailed forty-two-page statement of reasons denying Gaby's motion for reconsideration and directing that Gaby pay additional attorney's fees to David in the amount of $3862.97. Gaby appealed the court's December 3, 2014 order.
II.
Gaby raises the following arguments on appeal:
POINT I.
THE TRIAL COURT'S REFUSAL TO GRANT RECONSIDERATION AND/OR RELIEF FROM THE OCTOBER 1, 2014 ORDER, UNDER THE CIRCUMSTANCES PRESENTED, CONSTITUTED AN ABUSE OF DISCRETION, WAS ARBITRARY AND CAPRICIOUS, WAS A MISAPPLICATION OF THE LAW, AND LED TO AN UNFAIR RESULT.
POINT II.
THE TRIAL COURT RELIED UPON INAPPROPRIATE HEARSAY AND SPECULATIVE EVIDENCE IN FINDING [GABY] TO HAVE INTERFERED WITH THE SUPERVISED VISITATION PROGRAM AND THE REUNIFICATION THERAPIST, AND AS TO MODIFICATION OF CHILD SUPPORT AND IMPUTATION OF INCOME TO THE PARTIES. THE DENIAL OF RECONSIDERATION OR RELIEF AND/OR FAILURE TO HOLD A HEARING WAS ERRONEOUS, AN ABUSE OF DISCRETION, AND OTHERWISE UNFAIR AND UNJUST.
POINT III.
THE COURT'S FAILURE TO REVERSE OR MODIFY ITS PRIOR CHILD SUPPORT MODIFICATION, AFTER BEING MADE AWARE THAT IT ERRONEOUSLY BELIEVED [GABY] HAD NOT FILED THE NECESSARY DOCUMENTS, AND THE FAILURE TO CONSIDER THOSE FINANCIAL DOCUMENTS WAS AN ABUSE OF DISCRETION AND HAS LED TO AN UNFAIR AND UNJUST RESULT THAT IS CONTRARY TO THE BEST INTERESTS OF THE CHILD.
POINT IV.
THE IMPOSITION OF THE SANCTION OF COMMUNITY SERVICE TO BE PERFORMED BY [GABY] FOR HER ALLEGED INTERFERENCE WITH THE PARENTING PROGRAMS AND THERAPY, WITHOUT A HEARING TO DETERMINE THAT [GABY] HAD THE ABILITY TO COMPLY WITH THE ORDER, WAS ERRONEOUS.
POINT V.
THE TRIAL COURT'S CONCLUSORY STATEMENTS ABOUT [GABY,] THE ANGER EXHIBITED AT ORAL ARGUMENT, THE REFUSAL TO COMPEL PRODUCTION OF THE BEST EVIDENCE AVAILABLE, THE REFUSAL TO CONSIDER HER CIS, THE SUBSEQUENT AWARD OF ATTORNEYS['] FEES TO [DAVID,] ETC., HAVE CREATED THE APPEARANCE OF BIAS, AND CAUSES CONCERN AS TO HER ABILITY TO HAVE FAIR CONSIDERATION OF ANY FURTHER ISSUES BY THIS COURT.
"Reconsideration . . . is 'a matter within the sound discretion of the Court, to be exercised in the interest of justice.'" Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Reconsideration is appropriate if "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 v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria, supra, 242 N.J. Super. at 401); see also Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002). Reconsideration is not appropriate as a vehicle to bring to the court's attention evidence that was available but not presented in connection with initial argument. Fusco, supra, 34 9 N.J. Super. at 463.
We review the denial of a motion for reconsideration under the abuse of discretion standard. Cummings, supra, 295 N.J. Super. at 389 (citing CNF Constructors, Inc. v. Donohoe Const. Co., 57 F. 3d 395, 401 (4th Cir. 1995)). An abuse of discretion occurs "when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" U.S. Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 467-68 (2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).
We have carefully considered the record in this matter and find insufficient merit in Gaby's arguments to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons set forth in the thorough, thoughtful, and well-reasoned written opinion of Judge Picheca that accompanied the December 3, 2014 order. We add the following brief comments.
Gaby contends the court incorrectly failed to consider evidence submitted in support of the motion for reconsideration that demonstrated the October 1, 2014 order was entered in error. A motion for "[r]econsideration 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). It "is designed to seek review of an order based upon 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.; see also Palombi, supra, 414 N.J. Super. at 288 (finding that a motion for reconsideration "is not appropriate merely because a litigant is dissatisfied with a decision of the court or wishes to reargue a motion . . ."). A court may "in the interest of justice," consider new evidence on a motion for reconsideration only when the evidence was not available prior to the decision by the court on the order which is the subject of the reconsideration motion. D'Atria, supra, 242 N.J. Super. at 401; Fusco, supra, 349 N.J. Super. at 462.
Gaby concedes that she did not present any evidence in opposition to the cross-motion that resulted in the entry of the October 1, 2014 order. In her motion for reconsideration, however, she submitted evidence for the first time that she contends demonstrates the October 1, 2014 order was entered in error. We are therefore satisfied that the court did not err by rejecting Gaby's effort to expand the record on the motion for reconsideration. The court did not abuse its discretion by refusing to consider evidence that Gaby did not submit in opposition to the cross-motion that resulted in the court's October 1, 2014 order and which the court correctly found was available to Gaby prior to the entry of the October 1, 2014 order.
We are also convinced that the record supports the court's determination that even if the evidence belatedly submitted on the motion for reconsideration was considered, it did not require a reconsideration and reversal of the October 1, 2014 order. --------
We do not consider Gaby's contention that the court erred by denying her motion for reconsideration based on her claim that she was entitled to a plenary hearing prior to the entry of the October 1, 2014 order. Gaby did not request a hearing and did not argue on her motion for reconsideration that the court erred by failing to conduct a hearing. We decline to consider defendant's argument because it was not "'properly presented to the trial court'" and does not "'go to the jurisdiction of the trial court or concern matters of great public interest.'" State v. Robinson, 200 N.J. 1, 20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).
We expressly reject Gaby's contention that a reversal is required based upon her claim that the judge expressed anger or bias during his handling of this matter. Our review of the record confirms that there is no evidential support for the contention. In contrast, the judge exercised patience and measured judgment when presented with the record of Gaby's inexplicable and inexcusable failure to abide by court orders that were intended to provide David with the supervised parenting time to which the court repeatedly determined he was entitled.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION