NEWTON G. MOODIE VS. CAROLYN RICHARDS MOODIE(FM-07-1032-09, ESSEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-0558-15T1
NEWTON G. MOODIE,
Plaintiff-Respondent,
v.
CAROLYN RICHARDS MOODIE,
Defendant-Appellant.
________________________________________________________________
Submitted February 28, 2017 – Decided August 1, 2017
Before Judges Espinosa and Guadagno.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Essex
County, Docket No. FM-07-1032-09.
Kiernan & Campbell, attorneys for appellant
(Jean R. Campbell, on the brief).
Newton G. Moodie, respondent pro se.
PER CURIAM
Defendant appeals from orders that terminated plaintiff's
obligation to pay her alimony and maintain life insurance for her
benefit and denied her motion for reconsideration. We affirm.
I.
On June 21, 2010, plaintiff and defendant were divorced and
entered into a matrimonial settlement agreement (MSA) that was
incorporated into their final judgment of divorce.
According to the MSA, plaintiff was earning $55,000 from his
employment as a teacher and defendant was earning $12,000 as a
substitute teacher. The parties agreed that, beginning on June
23, 2010, plaintiff would pay $965 per month in alimony to
defendant for the first twenty-four months, and $1,000 every month
after that until defendant died or remarried. Both parties were
required to exchange their end-of-year pay stubs, tax returns, and
all other proofs of income annually.
The MSA also required defendant to provide plaintiff proof
"of her efforts to find new employment and her job search" and
no later then [sic] every six months,
commencing November 1, 2010, proof of her good
faith effort to utilize her recently earned
M.B.A. Degree to obtain higher paying
employment. Said proof shall consist of a
listing of jobs applied for and persons
contacted. [Plaintiff] may move before the
Court to seek relief in the form of reduction
or termination of alimony, in the event
[defendant] fails to comply and/or make a good
faith effort to obtain higher paying
employment.
The MSA is silent on what "higher paying employment" means
or what would happen if she obtained such employment.
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In 2011, plaintiff made application to decrease his alimony
obligations. The trial judge denied his request but required
defendant to provide plaintiff "with a list of job applications
as required under the parties' [M]SA" and "proof in writing of
interviews that she has every two weeks until she is employed full
time."
In August 2013, plaintiff filed an application to terminate
alimony, claiming defendant violated the MSA by "fail[ing] to seek
meaningful employment" and her "job search [was] inadequate and
restrictive with a focus on managerial and sales/marketing
positions, ignoring other potential areas." Plaintiff also
claimed his alimony obligation was "burdensome and cause[d]
significant financial, emotional and physical challenges."
Defendant opposed plaintiff's motion and cross-moved, asserting
she was compliant with the MSA.
By order dated October 4, 2013, the trial judge directed
defendant to provide plaintiff and the court "a list of job
searches, interviews and who [she] has spoken to about seeking
employment" within two weeks of the order. Both parties were
ordered to provide each other and the court their tax returns for
each year since the divorce.
On November 1, 2013, the trial judge held a conference with
the parties, with defendant appearing by telephone. The judge
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observed that defendant's response to his prior order reflected
that "every two weeks or so, there is some kind of job contact"
and stated, "that's not the kind of diligence that the Court
expects to see." The judge advised he would "need to impute income
to [defendant] based on what [he] think[s] [her] earning power
is." Plaintiff asked the court to give defendant a year in which
to make the effort required by the court. The judge welcomed the
suggestion and emphasized to defendant,
[I]t's very important that you understand the
following. You need to, at least in my eyes
and I think in [plaintiff's] eyes as well,
step up your efforts to find a job. . . .
Second of all . . . you need to look in places
like the school districts since you've been
working as a substitute teacher.
The trial judge said he would enter an order that required
defendant to make an average of five job searches a week, amounting
to 260 job searches over the course of the year, representing
"real diligence." The judge also advised defendant that to show
she is "looking in good faith," she had to expand her search to
include jobs that "may be somewhat below [her] qualifications."
The order stated,
Defendant shall perform at least 5 job
searches per week. Once per month, Defendant
shall provide Plaintiff with a list of the
name of the employer with whom she has spoken,
the job for which she applied, the date of the
application and the contacts with whom she has
corresponded while seeking employment. . . .
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Defendant shall expand her job search to
employment which is below her qualifications
as well as jobs for which she is qualified.
In October 2014, plaintiff filed an application to terminate
his alimony and life insurance obligations to defendant, claiming
defendant failed to find a higher-paying job within the one-year
period prescribed by the November 2013 order and that her failure
"to meaningfully seek adequate employment" violated the MSA.
On December 2, 2014, the trial judge conducted a conference
with the parties. Defendant still had not secured full-time
employment. The trial judge advised defendant that the job search
lists she submitted were missing information required by the
November 2013 order. He scheduled a plenary hearing "to address
whether to impute income to the Defendant, whether the Defendant
looked for a job in good faith and the possible modification of
alimony and life insurance." The order directed defendant to
"continue to diligently look for a job and provide the Plaintiff
with proof of 5 job searches per week" and "provide documentation
to the [Plaintiff] and the Court regarding how [she] is paying
living expenses." Both parties were ordered to provide each other
and the court their last tax return and last three paystubs.
The plenary hearing was conducted by a different judge in
June 2015.
Plaintiff testified he received defendant's job search list
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every month, but because the list did not contain the positions
she applied for, he was unable to verify her application efforts.
Plaintiff and defendant co-owned a pharmacy in Jamaica, where
defendant had previously worked as a licensed pharmacist.
Plaintiff testified that pharmacists in Jamaica earn approximately
$50,000 to $60,000 and suggested plaintiff could split her time
between living in Florida and working part-time as a pharmacist
in Jamaica.
Defendant testified her license as a pharmacist in Jamaica
expired after she left in 2002. She stated she does not have a
pharmacy license in the United States and had applied for
pharmaceutical sales jobs without success.
Defendant received an M.B.A. from Nova Southeastern
University (Nova) in 2006, but remained unemployed until she began
substitute teaching in January 2009, shortly after she obtained a
green card and a Florida substitute teaching license. As a
substitute teacher, she recalled making approximately $11,000 in
2009, $13,188 in 2013, and $17,447 in 2014, and estimated that she
made "between $11,000 and $14,000" from 2009 through 2013.
However, she only submitted evidence of her income for 2013, 2014,
and 2015. Based on her pay stubs from March and April 2015, she
was making $11.27 per hour.
Defendant testified she searched for substitute teaching jobs
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for approximately three hours every day, and was usually placed
in short-term positions because long-term positions were hard to
get. She did obtain a long-term substitute teaching job once,
which she testified "pays the teacher's salary" of "[t]wenty
something dollars" but without benefits. Defendant also testified
she never applied for substitute teaching jobs outside of her
county because the commuting costs were high and the job market
was weak.
Defendant testified she obtained two "statement[s] of
eligibility" from Florida in 2011 that permitted her to teach math
to grades five through twelve before they expired in 2014. While
eligible, she applied for "numerous" full-time teaching positions,
received two callbacks, but was not hired because the employers
told her they preferred certified teachers, which required
additional schooling. She explained that she could not afford to
renew her statements of eligibility and was discouraged because
she "saw certified teachers having a hard time getting jobs."
Outside of applying for teaching jobs, defendant testified
she went to three job fairs and applied for jobs at Nova and jobs
advertised by Nova, but had no success. In addition, she used the
website Career Builder to apply to jobs, as well as Monster.com,
employers' websites, and newspapers ads. She also met with
employment agencies, but never received a response from them. When
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she attempted to apply in-person, employers either did not have
any openings or directed her to apply online. She testified she
searched for non-teaching jobs "anytime" and on the weekends, but
did not say how much time she expended.
Defendant testified that, between March 2010 and November
2013, she had a few telephone interviews for mostly "sales,
commission-type work." She recalled applying for a job that sent
her to Lowe's on her second interview where she had to sell DirecTV
subscriptions. She was able to attract one customer and was
offered the job with a commission-only salary, but did not take
it. She testified she had a few other interviews for similar
sales jobs and "insurance type jobs," as well as an interview to
be a resident supervisor for a homeless shelter for addicts.
However, aside from sales jobs and commission-based jobs, she
received no offers.
Following the November 2013 order, she testified she expanded
her search to include "jobs that just needed . . . a high school
diploma or GED," such as cashier and receptionist positions.
However, between November 2013 and April 2015, defendant only
received offers for commission-based jobs. She explained she did
not accept these offers because she would have to commit full-time
and give up her substitute teaching jobs, a move she considered
"risky" because she did not believe she was very good at the sales
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jobs and would earn less money. Furthermore, defendant testified
that medical issues caused by a serious car accident in 19921
prevented her from working in jobs that required lifting or
standing for long periods of time, such as nursing aide, childcare,
and pharmacy technician jobs.
When asked about expanding her job search geographically,
defendant testified she searched for jobs "all over Florida" in
the last year. She said she also applied for jobs outside Florida,
but could not give specifics other than she "applied in North
Carolina, not recently." She did state she would relocate from
Florida if she could secure a job before moving.
Defendant testified that, between March 2011 and November
2013, she provided evidence of her job search efforts to plaintiff
in the form of one list that stated the job title and company and,
after the November 2013 order, she provided an additional list
that identified who she spoke with.
The trial judge granted plaintiff's motion to terminate his
obligation to pay alimony and maintain life insurance, effective
June 30, 2016, and set forth her reasons in a fourteen-page written
decision.
1
Other than her own testimony, defendant did not provide any
evidence regarding her health issues and their impact on her
ability to work.
9 A-0558-15T1
The trial judge found both parties were "highly educated"
and, represented by counsel, had agreed to the terms of the MSA,
which memorialized their "understanding that Defendant would
actively seek a higher-paying job to eventually put the parties'
financials on equal footing." She concluded the MSA was a valid
and enforceable contract between the parties in which "Plaintiff
was to provide alimony to Defendant, while Defendant was to
actively seek a better job." The judge found
Defendant did not uphold her end of the
parties' bargained-for-exchange. As shown by
the evidence and testimony presented during
the Plenary Hearing, over the course of five
(5) years since the parties voluntarily
entered into their Agreement, Plaintiff's
$12,000.00 salary has only increased by
approximately $5,000.00.
In her statement of reasons, the trial judge found defendant's
testimony regarding her employment search "disingenuous" and
"lack[ed] credibility," recounting that defendant "could not
remember" from which employers she received callbacks, she was
"vague and . . . stumbled over her own answers" when asked about
her efforts to look for employment outside of her county of
residence, and she was "unclear regarding the details of her
increased job search."
The trial judge reviewed defendant's job search efforts in
the years before the November 2013 order as well as her efforts
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following that order. She stated the "only list" defendant
"provided with specific details of job applications" were all
dated June 6, 2015,2 just five days before the plenary hearing.
Aside from that list, the trial judge found the job search lists
defendant submitted were noncompliant with the MSA and court
orders, as they were "incomplete," "vague and unspecific," and
"precluded Plaintiff from verifying any of her job applications."
Defendant did not provide any other evidence of her application
submissions from the employers she applied to. The trial judge
also found it "suspect" that defendant did not provide her tax
returns from 2010 through 2013.3
The trial judge concluded defendant "did not make a good
faith effort to obtain higher paying employment in violation of
the [MSA]," that she "was not looking for a job with any sincere
or honest effort," and her job search efforts were merely "a veiled
attempt to make this Court and Plaintiff believe she was looking
for a job to keep receiving alimony." The judge found defendant's
need for alimony "was a self-imposed need created by her passive
2
As defendant noted in her motion for reconsideration, the list
actually spanned a time frame of February to June 2015.
3
Defendant challenges this finding by the judge, stating she
provided other evidence of her income. That argument does not
refute the trial judge's observation that income tax returns were
not provided.
11 A-0558-15T1
job search of the past five (5) years" and she "purposefully under-
informed Plaintiff."
The trial judge then considered whether plaintiff's alimony
obligations should be modified or terminated. She found defendant
to be "voluntarily underemployed" and imputed an income to her of
$55,286.40, which defendant testified was "the salary of a full-
time teacher in her area." Noting that the imputed income
reflected an ability to earn a salary similar to plaintiff's, the
trial judge terminated plaintiff's obligations to pay alimony and
maintain life insurance for defendant's benefit, effective June
30, 2016.
On July 17, 2015, defendant moved for reconsideration of the
June 29th order. She argued the trial judge incorrectly
characterized her 2015 job search list by failing to acknowledge
that the list spanned February to June 2015. She also contended
the judge erred in imputing a full-time teacher's income because
she was only a substitute teacher and not certified to teach full-
time.
Following oral argument, the trial judge denied defendant's
motion for reconsideration and set forth her reasons in a written
opinion. The trial judge readily acknowledged and corrected the
error she made regarding the dates contained in defendant's 2015
job search list. However, because the list spanned only five
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months and was the "the only job search list" produced by defendant
that complied with the information requirements of the MSA and
court orders, the job search was insufficient to constitute a good
faith effort by defendant in her overall employment search efforts.
The trial judge also noted that, because the plenary hearing was
originally scheduled for January 2015 to assess defendant's
efforts in the year following the November 2013 order, defendant's
post-January 2015 search efforts should not be considered. The
trial judge also explained that the length of time of defendant's
search was only one factor she considered; she also based her
decision on other factors, such as her findings that defendant's
testimony was not credible and her job search lists "created
confusion specifically to avoid accountability." Further, the
trial judge reaffirmed her finding that defendant was
underemployed and that the income of a full-time teacher was
properly imputed to her, noting defendant's testimony that she had
worked an interim job at a full-time teacher's salary proved that
she had the potential and capacity to earn a full-time teacher's
income.
In her appeal, defendant argues the trial judge: abused her
discretion in finding defendant acted in bad faith regarding her
efforts to obtain higher-paying employment and ignored the
directions included in prior court orders (Point II); admitted her
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error in characterizing defendant's employment search (Point III);
erred in imputing the salary of a full-time certified teacher to
defendant (Point IV); erred in allowing respondent to make the
unsubstantiated allegation he could not verify defendant's job
search (Point V); made several errors regarding details of
defendant's job search (Point VI), erred in allowing plaintiff to
make the unsubstantiated allegation that defendant could earn
$50,000 to $60,000 as a pharmacist in Jamaica (Point VII); erred
in considering defendant's lack of job offers as evidence of her
failure to comply with the prior order (Point VIII); erred in
finding defendant lacked credibility (Point IX); and erred in
finding defendant failed to provide tax returns for the period
from 2010 to 2013 (Point X).
We are not persuaded by any of defendant's arguments. The
argument raised in Point III lacks sufficient merit to warrant
discussion and the arguments presented in Points V, VI, VII, VIII,
IX and X require only limited discussion. R. 2:11-3(e)(1)(E).
II.
Appellate review of a trial court's decision to modify an
alimony obligation "must give due recognition to the wide
discretion which our law rightly affords to the trial judges who
deal with these matters." Reese v. Weis, 430 N.J. Super. 552,
571-72 (App. Div. 2013) (quoting Donnelly v. Donnelly, 405 N.J.
14 A-0558-15T1
Super. 117, 127 (App. Div. 2009)). Discretion is particularly
important in the adjudication of matrimonial matters "because the
trial judge has 'a feel of the case' and is in the best position
to 'make first-hand credibility judgments about the witnesses who
appear on the stand.'" Elrom v. Elrom, 439 N.J. Super. 424, 433
(App. Div. 2015) (quoting N.J. Div. of Youth & Family Servs. v.
E.P., 196 N.J. 88, 104 (2008)).
Our "review of a trial court's findings of fact is limited."
Reese, supra, 430 N.J. Super. at 567 (quoting Cesare v. Cesare,
154 N.J. 394, 413 (1998)). "The general rule is that findings by
the trial court are binding on appeal when supported by adequate,
substantial, credible evidence." Ibid. (quoting Cesare, supra,
154 N.J. at 411-12). Reversal is appropriate only when the factual
findings prove to be "so manifestly unsupported by or inconsistent
with the competent, relevant and reasonably credible evidence as
to offend the interests of justice." Elrom, supra, 439 N.J. Super.
at 433 (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am.,
65 N.J. 474, 484 (1974)).
We are also "obliged to accord deference to the trial judge's
credibility determinations." Reese, supra, 430 N.J. Super. at 567
(citing Cesare, supra, 154 N.J. at 412). When credibility is
important, "the trial court's conclusions must be given great
weight and must be accepted by the appellate court unless clearly
15 A-0558-15T1
lacking in reasonable support." Id. at 568 (quoting N.J. Div. of
Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div.
2005)).
We also "grant substantial deference to the trial judge's
discretion on evidentiary rulings," Bd. of Educ. v. Zoning Bd. of
Adjustment, 409 N.J. Super. 389, 430 (App. Div. 2009), and will
not disturb a ruling "unless there is a clear abuse of discretion,"
Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div.
1991).
However, "the trial judge's legal conclusions, and the
application of those conclusions to the facts, are subject to our
plenary review." Reese, supra, 430 N.J. Super. at 568 (citing
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995)). As always, questions of law are reviewed de novo.
Ibid. (citing Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597,
601 (App. Div. 2007)).
Applying these principles to defendant's arguments, we
conclude the arguments presented in Points V and VII challenge
evidentiary rulings that did not constitute an abuse of discretion;
the challenges to the trial judge's fact finding in Points VI,
VIII and X fail because the judge's findings as a whole are
supported by adequate, substantial, and credible evidence in the
record; and the argument in Point IX challenging the judge's
16 A-0558-15T1
credibility finding lacks merit because the judge's assessment is
not clearly lacking in reasonable support. As a result, these
arguments merit no further discussion.
III.
We turn to defendant's argument that the trial judge erred
in finding she failed to make a good faith effort to find a higher-
paying job in the years since the 2010 divorce.
Although defendant argues that plaintiff "presented no
competent or compelling evidence to assert that [her] job search
was lacking and amounted to bad faith," the trial judge's finding
did not require "compelling evidence" for support, but only
adequate, substantial and credible evidence to be accorded our
deference.
The proofs defendant submitted to show her good faith efforts
between November 2013 and January 2015 were not compliant with the
MSA and the November 2013 order. The job search lists spanning
from November 2013 to January 2015 contain significantly more
entries than the job contacts lists of the same date range and
only a few of the job search list entries can be found in the job
contacts list. For example, according to the job search list,
defendant applied to sixty jobs in November 2013, but only lists
the information for seven job contacts that month on the job
contacts list. Moreover, only one of the entries on the jobs
17 A-0558-15T1
contacts list, "Karma Innovations Inc," appears on the job search
list. Thus, the job search lists from November 2013 to January
2015 are deficient because they do not include the application
date or employer contact information. Likewise, the job contacts
lists from November 2013 to January 2015 are deficient because
they do not contain five searches per week and do not include the
positions she applied for.
There was, then, adequate support in the record for the
finding that defendant failed to comply with the requirements for
searching for a higher-paying job and documenting her efforts.
Nonetheless, defendant challenges the trial judge's finding,
presenting the following arguments: She contends the judge erred
in accepting plaintiff's assertion that defendant's job search
proofs were unverifiable. She also argues the judge
mischaracterized defendant's job search efforts by (1) stating
defendant prioritized obtaining substitute teaching jobs; (2)
making contradictory statements regarding defendant's testimony
about her job search efforts outside of the county she resided in;
and (3) stating defendant only searched for "teaching and customer
services" jobs.
These criticisms of the trial judge's factfinding are
unpersuasive. To the extent that the judge's statement of reasons
failed to acknowledge details of defendant's job searches, these
18 A-0558-15T1
oversights are inconsequential and do not undermine either the
findings or the support that resulted in the conclusion that
defendant failed to comply with the requirements established for
her good faith job search.
IV.
In Point IV, defendant challenges the trial judge's decision
to impute income to her that is the equivalent of a salary earned
by a full-time certified teacher.
In determining a proper alimony award, imputation of income
is warranted where a spouse "is, without just cause, voluntarily
underemployed or unemployed." Schochet v. Schochet, 435 N.J.
Super. 542, 549 (App. Div. 2014) (quoting Child Support Guidelines,
Pressler & Verniero, Current N.J. Court Rules, comment 12 on
Appendix IX-A to R. 5:6A at 2589 (2014)). A finding of
"underemployment" means the spouse "is intentionally failing to
earn that which he or she is capable of earning." Dorfman v.
Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998).
The trial judge made the threshold finding that defendant was
"voluntarily underemployed" as the basis for imputing income.
Defendant argues that the decision to impute the level of income
a full-time certified teacher earns is unsupported by competent
evidence because she is not a certified teacher and cannot afford
certification. She argues the temporary position she held as a
19 A-0558-15T1
"long-term substitute" making $26.58 per hour was not her "usual"
or "former" income level, as evidenced by her pay stubs which
showed she typically earned $11.27 per hour as a substitute teacher
and testimony that higher-paid teaching jobs were difficult to
obtain. In further support of her argument, defendant cited her
testimony about the difficulty of getting a teaching job in
Florida, her lack of contacts to obtain a tutoring job, and her
inability to work at a preschool or daycare facilities and fast
food restaurants due to her health issues.
Imputing the income of a spouse "is a discretionary matter
not capable of precise or exact determination[,] but rather
require[s] a trial judge to realistically appraise capacity to
earn and job availability." Elrom, supra, 439 N.J. Super. at 434
(alterations in original) (quoting Gnall v. Gnall, 432 N.J. Super.
129, 158 (App. Div. 2013), rev'd on other grounds, 22 N.J. 414
(2015)). This court "will not reverse the decision absent a
finding the judge's decision rested on an impermissible basis,
considered irrelevant or inappropriate factors, failed to consider
controlling legal principles or made findings inconsistent with
or unsupported by competent evidence." Ibid. (citations and
internal quotation marks omitted).
Trial judges have "'every right to appraise realistically [a
spouse's] potential earning power' and examine 'potential earning
20 A-0558-15T1
capacity' rather than actual income" when imputing income. Id.
at 435 (citations omitted). If "a spouse is not earning to his
or her true potential and capacity then an imputation of income
based upon that potential is appropriate." Stiffler v. Stiffler,
304 N.J. Super. 96, 101 (Ch. Div. 1997).
Defendant has a master's degree in business administration,
was a licensed pharmacist in Jamaica and has been able to obtain
two "statement[s] of eligibility" from Florida that made her
eligible to teach math to grades five through twelve full-time.
Her employment history includes an interim teaching job that paid
a "teacher's salary." This undisputed evidence, stripped to its
essentials, supports the conclusion that she has the potential and
capacity to earn substantially more than she has. Defendant's
claim that she cannot afford to become certified or renew her
statement of eligibility does not undercut that conclusion. See
Elrom, supra, 439 N.J. Super. at 435 ("courts have always looked
beyond . . . claims of limited resources and economic opportunity"
in examining potential earning capacity.).
Although the trial judge's decision properly considered
defendant's "work history, occupational qualifications, [and]
educational background" in her income imputation, it made no
mention of the "prevailing job opportunities in the region." Child
Support Guidelines, Pressler & Verniero, Current N.J. Court Rules,
21 A-0558-15T1
comment 12 on Appendix IX-A to R. 5:6A at www.gannlaw.com (2017).
Defendant consistently testified she had a hard time obtaining
full-time teaching jobs because employers preferred certified
teachers and she "saw certified teachers having a hard time getting
jobs." At the same time, however, she testified she never applied
for teaching jobs outside of her county due to the high commuting
costs and weak job market. In light of defendant's admission that
she limited the scope of her search and the judge's appraisal of
defendant's credibility, it was within the trial judge's
discretion to disregard defendant's testimony regarding the job
market for teachers in Florida.
Because the trial judge's decision to impute a full-time
teacher's income to defendant is consistent with controlling legal
principles and is adequately supported by competent evidence, it
shall remain undisturbed.
V.
Defendant amended her notice of appeal to include an appeal
from the denial of her motion for reconsideration. However,
contrary to the requirements of Rule 2:6-2(a)(6), her appellate
brief does not contain a separate point heading and argument
regarding the denial of her motion for reconsideration. The
failure to brief an argument may be deemed a waiver of the
argument. Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014).
22 A-0558-15T1
Further, we "may refrain from considering cursory arguments . . .
that are not properly submitted under proper point headings."
Pressler & Verniero, Current N.J. Court Rules, comment 2 on R.
2:6-2 (2017) (citing Solar Energy Indus. v. Christie, 418 N.J.
Super. 499, 508 (App. Div.), certif. denied, 207 N.J. 190 (2011).
The only argument we have gleaned from defendant's brief
regarding the motion for reconsideration is included in Point III,
in which she challenges the trial judge's factfinding and reviews
exhibits that were submitted in support of the motion for
reconsideration. These documents were not part of the record from
the plenary hearing.
Pursuant to Rule 4:49-2, the purpose of a motion for
reconsideration is to allow parties to bring to the trial court's
attention "matters or controlling decisions which counsel believes
the court has overlooked or as to which it has erred." It is not
an opportunity to relitigate the matter by presenting the court
with evidence that was not part of the record on which a decision
has been made. Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi,
398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521
(2008). Thus, denial is appropriate if the motion is based on
unraised facts known to the movant prior to entry of judgment.
Del Vecchio v. Hemberger, 388 N.J. Super. 179, 188-189 (App. Div.
2006).
23 A-0558-15T1
Reconsideration is appropriate only in cases "that fall
within 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." Asterbadi, supra, 398 N.J. Super.
at 310 (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch.
Div. 1990)). Moreover, "a litigant must initially demonstrate
that the Court acted in an arbitrary, capricious, or unreasonable
manner, before the Court should engage in the actual
reconsideration process." D'Atria, supra, 242 N.J. Super. at 401.
To the extent that defendant has argued the court erred in
denying her motion for reconsideration, her argument lacks merit.
Defendant failed to make the requisite showing that the trial
judge acted in an arbitrary, capricious or unreasonable manner.
And, the documents submitted in support of the motion could not
be relied upon to support a motion for reconsideration.
Affirmed.
24 A-0558-15T1