M.S. v. T.S. ( 2024 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-2507-22
M.S.,
Plaintiff-Appellant,
v.
T.S.,
Defendant-Respondent.
________________________
Submitted March 19, 2024 – Decided April 5, 2024
Before Judges Mayer and Whipple.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester County,
Docket No. FV-08-0984-23.
Christopher J. D'Alessandro, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
Plaintiff M.S. appeals from a March 16, 2023 order denying
reconsideration of a January 30, 2023 order, declining to enter a final
restraining order (FRO) against defendant T.S. and dismissing plaintiff's
domestic violence complaint. For the reasons that follow, we vacate the
January 30 and March 18, 2023 orders, reinstate plaintiff's temporary
restraining order (TRO) against defendant, and remand for further proceedings
consistent with this opinion.
Plaintiff and defendant divorced in 2013, with a history of physical,
mental, and emotional abuse between the two of them. On November 29,
2022, plaintiff began receiving unexplained phone calls, mostly from a
blocked number, during which she could only hear "background noise or music
playing, . . . love songs or . . . machinery of some sort." Plaintiff continued to
receive similar calls into early 2023, ultimately receiving seventy-three such
phone calls between November 29, 2022, and January 5, 2023.
Plaintiff suspected defendant was making these phone calls because: (1)
he had exhibited similar behavior in the past, leading to prior restraining
orders; (2) the background sounds in some of the phone calls were similar to
the background sounds from phone calls defendant had made to plaintiff in the
past, (3) plaintiff received one such phone call on Christmas Eve, and the
caller ID for that call showed defendant's name, (4) plaintiff paid for
TrapCall—a service that purports to identify the phone number associated with
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blocked telephone numbers—and TrapCall identified the calls as placed from
defendant's phone number.
Plaintiff reported the calls to police on December 2, 2022. The police
were unable to investigate, however, because the call came from an unknown
number. Plaintiff could not obtain proof as to the origin of the calls from her
phone company, because the calls originated from a blocked number. On
January 6, 2023, plaintiff obtained a TRO against defendant due to the
harassing phone calls. Plaintiff filed a report with the Washington Township
Police Department on January 9, 2023, complaining of the ongoing
harassment. The FRO hearing was initially scheduled for January 19, 2023,
but was continued until January 30, to allow for service of the TRO on
defendant.
At the January 30, 2023 hearing, plaintiff testified about the large
number of phone calls and her reasons for believing defendant was responsible
for them. Defendant testified plaintiff was making up the allegations to "get
[him] jammed up," and unequivocally denied he called plaintiff "multiple
times between November 29th and January 5th." Plaintiff testified she
obtained information from TrapCall, indicating defendant had placed those
calls. The trial court, however, did not credit the accuracy of TrapCall's
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identification of the calls as coming from defendant's phone number without
testimony from someone with knowledge regarding the identification process.
The trial court, finding the predicate act of harassment had not been proven,
denied the FRO, dismissed the complaint, and dissolved the TRO.
The following day, January 31, 2023, plaintiff was contacted by a
detective with the Washington Township Police Department, who had been
assigned that day to investigate her complaint. On February 9, 2023, the
police informed plaintiff they were charging defendant with harassment.
On February 17, 2023, plaintiff moved for reconsideration of the January
30, 2023 order, based on evidence gathered during the police investigation.
On March 1, 2023, plaintiff's counsel requested discovery from the
Washington Township Police Department with regard to the criminal
complaint against defendant. Plaintiff's counsel received defendant's phone
records for the relevant time period, a copy of the incident report associated
with plaintiff's January 9, 2023 complaint, and a copy of the criminal
complaint and summons issued to defendant.
Defendant's phone records, produced by his service provider as a result
of a law enforcement subpoena, indicated his phone was the source of dozens
of phone calls to plaintiff at times that corresponded with the harassing phone
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calls she received. The police incident report detailed the inability of
plaintiff's phone service provider to identify the source of the harassing phone
calls, the process the detective followed to obtain defendant's phone records,
and the timeline for obtaining the evidence against defendant.
On March 16, 2023, the trial court heard plaintiff's argument for
reconsideration, which defendant did not oppose. At this hearing, while
assessing the purportedly newly available evidence, the court stated the
"investigation is not evidence. Those charges [sic] aren't evidence[;] they're
allegations. The evidence is the phone records." The court relied on Fusco v.
Board of Education of Newark, 349 N.J. Super. 455, 463 (App. Div. 2002), for
the proposition that a party may not seek reconsideration relying on evidence
known before trial, if they chose to proceed to trial without it. The trial court
then found "the phone records . . . existed at the time of the trial and were
available at the time of the trial through the means of getting a subpoena.
Plaintiff made that tactical decision to move forward with the trial without
them." Finding the phone records not newly available evidence, the trial court
denied plaintiff's motion for reconsideration.
This appeal timely followed.
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On appeal, plaintiff asserts the trial court erred by not considering newly
discovered evidence unavailable at the time of trial.
"Motions for reconsideration are governed by Rule 4:49-2, which
provides that the decision to grant or deny a motion for reconsideration rests
within the sound discretion of the trial court." Pitney Bowes Bank, Inc. v.
ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015).
"Reconsideration should be used only where '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.'" Ibid. (alterations in original) (quoting
Cap. Fin. Co. of Del. Valley v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.
2008)).
We should not disturb a trial judge's denial of a motion for
reconsideration absent a clear abuse of discretion. Pitney Bowes, 440 N.J.
Super. at 382. An "abuse of discretion only arises on demonstration of
'manifest error or injustice,'" Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008)
(quoting State v. Torres, 183 N.J. 554, 572 (2005)), and occurs when the trial
judge's "decision is 'made without a rational explanation, inexplicably departed
from established policies, or rested on an impermissible basis,'" Milne v.
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Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (quoting Flagg v.
Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).
We will accord substantial deference to the trial court's findings of fact,
provided they are "supported by adequate, substantial and credible evidence."
Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc.
v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)). However, "[a] trial court's
interpretation of the law and the legal consequences that flow from established
facts are not entitled to any special deference." Manalapan Realty, L.P. v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). 1
In moving for reconsideration, plaintiff relied on Rule 4:49-2, which
provides:
[A] motion for rehearing or reconsideration seeking to
alter or amend a judgment or final order shall . . . .
state with specificity the basis on which it is made,
including a statement of the matters or controlling
1
This case is not suited for a motion for reconsideration pursuant to Rule
4:49-2. "[A] motion for reconsideration provides the court, and not the
litigant, with an opportunity to take a second bite at the apple to correct errors
inherent in a prior ruling." Conforti v. Cnty. of Ocean, 255 N.J. 142, 169,
reconsideration denied sub nom. Conforti v. Ocean Cnty. Bd. of Chosen
Freeholders, 255 N.J. 280 (2023) (quoting Medina v. Pitta, 442 N.J. Super. 1,
18 (App. Div. 2015)). This motion would likely not have encountered the
same obstacles, based on defendant's apparent untruthfulness during the initial
hearing, if it had been brought under Rule 4:50-1, which provides specifically
for "reliev[ing] a party . . . from a final judgment or order for . . . fraud . . . ,
misrepresentation, or other misconduct of an adverse party." See Rule 4:50-1.
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decisions that counsel believes the court has
overlooked or as to which it has erred, and shall have
annexed thereto a copy of the judgment or final order
sought to be reconsidered and a copy of the court's
corresponding written opinion, if any.
[Rule 4:49-2.]
Pursuant to this Rule, reconsideration is "a matter within the sound discretion
of the [c]ourt, 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)).
[A] reconsideration motion is primarily an opportunity
to seek to convince the court that either (1) it has
expressed its decision based upon a palpably incorrect
or irrational basis, or (2) it is obvious that the court
either did not consider, or failed to appreciate the
significance of probative, competent evidence.
[Kornbleuth v. Westover, 241 N.J. 289, 301 (2020)
(quoting Guido v. Duane Morris LLP, 202 N.J. 79, 87-
88 (2010)).]
Rule 4:49-2 applies "when the court's decision represents a clear abuse of
discretion based on plainly incorrect reasoning or failure to consider evidence
or a good reason for the court to reconsider new information." Conforti, 255
N.J. at 190-91 (Fasciale, J., concurring) (quoting Pressler & Verniero, Current
N.J. Court Rules, cmt. 2 on R. 4:49-2 (2022)).
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As a threshold matter, the "magnitude of the error" on which the motion
for reconsideration is based "must be a game-changer for reconsideration to be
appropriate." Palombi, 414 N.J. Super. at 289. In Cummings v. Bahr, this
court approvingly quoted D'Atria, 242 N.J. Super. at 401, to emphasize "if 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, the [c]ourt should, in
the interest of justice (and in the exercise of sound discretion), consider the
evidence." 295 N.J. Super. 374, 384 (App. Div. 1996).
The burden of proof required under Rule 4:49-2 to show whether the
proffered "new or additional information . . . could not have [been] provided
on the first application," has not been addressed in our case law. See ibid.The issue presents a question of fact to be decided by the trial judge based on
evidence in the record. For guidance on this issue, it is instructive to look to
related court rules. With regards to Rule 4:49-1, which governs motions for
new trials, our Supreme Court has stated "[t]he party seeking a new trial on the
basis of newly discovered evidence has the burden of showing diligence and
that burden is substantial." Quick Chek Food Stores v. Springfield Twp., 83
N.J. 438, 446 (1980) (citing Martin v. Klein, 172 F. Supp. 778, 780 (D. Mass.
1959)). The Quick Chek Court clarified the record must demonstrate the
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newly discovered evidence "was not discoverable by diligent search at the time
of trial." 83 N.J. at 446 (citing Moylan v. Siciliano, 292 F.2d 704, 705 (9th
Cir. 1961)). Rule 4:50-1, governing relief from a final judgment or order,
explicitly states the "newly discovered evidence" on which a party bases their
motion should "probably alter the judgment or order and . . . by due diligence
could not have been discovered in time" for prior proceedings. R. 4:50-1. It is
reasonable, therefore, to impute a similar standard here, such that a party
seeking reconsideration under Rule 4:49-2 based on "newly discovered
evidence" bears "the [substantial] burden of showing diligence." See Quick
Chek, 83 N.J. at 446.
Using that lens, we consider whether the trial court abused its discretion
in finding the phone records proffered by plaintiff were "not unavailable, . . .
existed at the time of the trial[,] and w[ere] not produced." In support of this
finding, the trial court emphasized nothing "in the record [shows] that plaintiff
was unable to obtain these records by subpoena or through law enforcement."
The court suggested that, because plaintiff "subsequently did get them through
law enforcement," plaintiff should have been able to get them from law
enforcement before the trial. Finally, the trial court noted plaintiff never made
"any request to adjourn the case to get these records which plaintiff knew
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existed at the time," essentially finding plaintiff had failed to demonstrate
diligence in attempting to obtain that evidence prior to trial.
In so finding, the trial court disregarded the Washington Township
Police Department's incident report in its entirety and did not consider the
contents of the report for the purpose of ascertaining plaintiff's diligence and
ability to obtain defendant's phone records prior to trial—that is, for a purpose
entirely unrelated to defendant's alleged commission of the predicate act. The
trial court correctly refused to consider the incident report and charge sheet as
evidence of defendant's guilt, saying "While the investigation, that may be
new, that investigation is not evidence. Those charges [sic] aren't evidence[;]
they're allegations." The trial court did, however, abuse its discretion by
focusing on the allegations within the incident report and not considering the
other information in the report relevant to addressing issues other than
defendant's purported guilt.
The report shows plaintiff filed her complaint on January 9, 2023, but a
detective was not assigned to investigate the case until January 31, 2023 —the
day after the trial when the court dissolved the TRO. According to the report,
the detective assigned to the case first discovered plaintiff's carrier did not
have the ability to identify incoming blocked calls. The detective then sent a
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subpoena requesting defendant's phone records from his service provider that
same day but did not obtain information responsive to the subpoena until one
week later, on February 7, 2023. Thus, if a detective had been assigned to
plaintiff's case within two weeks of her filing the complaint, plaintiff might
have been able to produce defendant's phone records at trial. It appears,
however, plaintiff could not have received defendant's phone records absent
the law enforcement-issued subpoena served after the January 30 trial.
Further, plaintiff had no reason to request an adjournment before the January
30 trial because the Washington Township Police Department first assigned a
detective to investigate her harassment claims against defendant on January
31.
This is not a situation in which a party—either for strategic reasons or
because the party overlooked the significance of a document—withheld the
document from evidence and then, after an unfavorable result, attempted to obtain
further consideration by belatedly submitting the evidence, as in Fusco. In that
case, the plaintiff's attorney withheld a document in filing opposition to the
defendant's summary judgment motion and then moved for reconsideration based
on the omitted document.
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Here, plaintiff did not seek to enlarge the record with a document previously
available but intentionally withheld until after an adverse ruling. Given the full
import of information in the Washington Township Police Department's
incident report, the March 16, 2023 order denying reconsideration is remanded
for further proceedings consistent with this opinion. We express no opinion as
to the ultimate outcome.
Vacated and remanded. We do not retain jurisdiction.
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