J.C.C. VS. S.L.D. (FD-05-0195-05, CAPE MAY COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4105-17T2
J.C.C.,
Plaintiff-Respondent,
v.
S.L.D.,
Defendant-Appellant.
Submitted May 14, 2019 – Decided June 28, 2019
Before Judges Gilson and Natali.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Cape May County,
Docket No. FD-05-0195-05.
Adinolfi, Molotsky, Burick & Falkenstein, PA,
attorneys for appellant (Drew A. Molotsky, on the
briefs).
Puff & Cockerill LLC, attorneys for respondent
(Christine C. Cockerill, on the brief).
PER CURIAM
In this non-dissolution matter,1 defendant appeals from an April 17, 2018
Family Part order denying reconsideration of a November 14, 2017 order, which
amended the parties' weekly parenting time schedule with respect to their now
fifteen-year old daughter, K.B.D. (Kathleen). 2 We affirm in part, and remand in
part to permit the court to resolve two requests for relief not addressed by the
court in its April 17, 2018 order.
Soon after Kathleen's birth, and for much of her life, the parties have
engaged in contentious motion practice resulting in over twenty orders
addressing paternity, custody, parenting time, and child support issues. The
April 17, 2018 order under review has its genesis in a June 24, 2015 application
filed by defendant where she, and her husband, sought to relocate with Kathleen
to South Carolina. Plaintiff opposed the June 24, 2015 application, and sought
the following relief by way of a July 20, 2015 cross-motion: 1) to be declared
the parent of primary residence; 2) the entry of an amended parenting time
schedule in the event defendant relocated outside of New Jersey; 3) enforcement
1
The non-dissolution or FD docket provides a mechanism for parents not
married to each other or not seeking a divorce to address custody, parenting
time, paternity, and child support. R.K. v. D.L., 434 N.J. Super. 113, 131 (App.
Div. 2014).
2
We employ a pseudonym for K.B.D., and initials for plaintiff and defendant,
to protect their privacy.
A-4105-17T2
2
of the court's prior orders regarding pick up/drop off of Kathleen at school, and
to prevent defendant from interfering with his parenting time; 4) authorizing
plaintiff's wife and extended family to pick up Kathleen from school; 5)
requiring defendant to pay her share of Kathleen's medical and dental expenses
through the probation department; and 6) counsel fees.
The court conducted an eleven-day plenary hearing from February 2016
to November 2016, which addressed the relocation, custody, parenting time, and
other issues raised by the parties' motion papers. 3 In addition, on January 31,
2017, the court conducted an extensive interview of Kathleen. The court issued
three orders, dated June 28, 2017, August 16, 2017, and November 14, 2017, all
accompanied by comprehensive written statements of reasons, which resolved
all issues raised by the parties' June 24, 2015 and July 20, 2015 applications.
The court's June 28, 2017 order denied defendant's application to remove
Kathleen to South Carolina. The court also denied without prejudice plaintiff's
request to be appointed Kathleen's parent of primary residence. In the event,
however, defendant elected to relocate to South Carolina without Kathleen, the
June 28, 2017 order provided that plaintiff would then be designated Kathleen's
primary residential custodian.
3
The parties have not included any of the transcripts from the plenary hearing.
A-4105-17T2
3
In its accompanying written decision, the motion judge exhaustively
addressed all the evidence elicited at the plenary hearing, and concluded it would
be contrary to Kathleen's best interests to relocate to South Carolina. In reaching
its decision, the court made specific, adverse credibility findings against
defendant. Indeed, the court stated it was "repeatedly[] struck by the impression
that [d]efendant's desire to remove [Kathleen] [was] either pretextual or
malicious," as if it was part of a "longstanding goal of diminishing the existence
of [p]laintiff in [Kathleen's] and her life."
The court continued by characterizing defendant's demeanor as
"concerning," and commented that defendant's tone during the plenary hearing
was "insincere . . . as if feigning kindness . . . ." The court noted that she was
hesitant to respond to certain questions, declined to answer others because she
did not recall, "was uncertain at conspicuously convenient times, and regularl y
hesitated and pushed back on . . . unfavorable questions . . . ." Finally, the court
noted that defendant "frequently diverted her answers by injecting vitriolic
anecdotes about past incidents and . . . brazenly expressed disdain toward [the]
court's . . . parenting time orders and the intent underlying them, instead vying
to minimize [p]laintiff's parenting time" with Kathleen.
A-4105-17T2
4
The court concluded that it was "unable to ignore the apparent agenda
underlying . . . [d]efendant's demeanor" because it created "a serious and
legitimate concern about the continued sustenance of the relationship with
[Kathleen] and [p]laintiff if the child is removed to South Carolina."
Accordingly, the court determined:
In light of the extensive testimony offered during this
litigation, there has been what appears to be an
unequivocal pattern of attempts to alienate [p]laintiff
from [Kathleen's] life, dating as far back as the child's
birth. From [the] court's perspective, the best interest
of [Kathleen] and her continued relationships and
interactions with both of her parents, regardless of their
ambivalence toward one another, is the guiding
principle at the core of this decision.
In an August 16, 2017 order and written statement of reasons, the court
again denied plaintiff's request to be designated parent of primary residence.
The court also ordered: 1) that "either party may designate an appropriate
individual to transport" Kathleen during parenting time, and permitted plaintiff's
wife to pick up Kathleen during plaintiff's parenting time; 2) defendant to pay
her portion of Kathleen's orthodontia bill, in accordance with a prior court order;
and 3) the parties not to interfere with the other parent's court-ordered parenting
time. The court also denied the parties' requests for attorney's fees.
A-4105-17T2
5
Finally, in a November 14, 2017 order and accompanying written
decision, the court set forth a revised parenting time schedule. According to that
order, plaintiff would continue to exercise co-equal parenting time, consistent
with the parties' recent practice. Specifically, plaintiff was permitted to exercise
parenting time weekly with Kathleen on Wednesdays and Thursdays, and
defendant would exercise her parenting time every Monday and Tuesday. The
November 14, 2017 parenting time order permitted overnights, and directed that
Kathleen would spend alternate weekends with plaintiff and defendant.
The court explained that the parenting time schedule was identical to the
schedule followed by the parties for over a year. 4 The court also reasoned that
"in examining the record in this matter, the [c]ourt perceives no valid reason not
to grant [p]laintiff's request, especially because having the two overnights
consecutively will limit the back and forth of [Kathleen], . . . limit
communication" and "disagreement between the parties, or failure to abide by
the [c]ourt['s] [o]rder."
4
The schedule followed in practice by the parties was different from the terms
of the court's October 24, 2014 order, which provided that "[p]laintiff shall have
overnights on . . . Tuesdays and Thursdays, or another two (2) consecutive days
that both parties agree to, of the week that he does not have weekend parenting
time." Plaintiff contended that defendant abruptly changed the parties' practice
and only started following the terms of the October 24, 2014 order after
conferring with counsel.
A-4105-17T2
6
Defendant filed a timely pro se motion for reconsideration on December
4, 2017, which primarily challenged the parenting time decision memorialized
in the court's November 14, 2017 order. Defendant, however, also checked off
boxes on the application in which she requested to modify a June 19, 2012 order,
which required plaintiff to provide defendant with duplicate medical, dental, and
prescription cards for Kathleen, and for defendant to submit unreimbursed
medical bills to plaintiff's counsel on a bi-yearly basis. Defendant also requested
that Kathleen "come home while [her] father is at work" and "at night before
school," and that Kathleen be able to "get[] her medication without any issues."
Finally, she sought an increase in child support. In support of the application,
defendant appended an eleven-page handwritten document.
In an order filed on April 17, 2018, the court denied defendant's motion
for reconsideration without oral argument. 5 The court denied the application
after "having considered the prior sworn testimony of both parties" and because
5
The April 17, 2018 order was signed by the court on December 11, 2017.
There is no explanation in the record for the approximate four-month delay in
filing the court's order. It is undisputed, however, that all parties received the
April 17, 2018 order on April 18, 2018, when in court on a separate application,
and although a court's order should be filed promptly, see e.g., Rule 4:46-2(c)
(mandating that summary judgment orders be "rendered forthwith"), we discern
no prejudice by the court's unexplained delay in filing the order under review .
A-4105-17T2
7
defendant failed "to demonstrate that the [c]ourt's decision was palpably
incorrect or irrational pursuant to [Rule] 4:49-2." This appeal followed.
On appeal, defendant claims that her December 4, 2017 application "was
improperly denied without hearing or[al] argument, thereby denying [her] due
process of law." She also maintains that the court's November 14, 2017 order
"sua sponte . . . modified the parenting time schedule to a fully equal schedule,
thereby unilaterally changing . . . [d]efendant's primary residential custody to a
true shared custodial arrangement." Defendant also alleges that her December
4, 2017 motion, in addition to seeking reconsideration of the November 14, 2017
order, also sought other relief unaddressed by the court. We disagree with all
of defendant's arguments to the extent they challenge the court's April 17, 2018
order. We issue a limited remand, however, for the court to resolve two
outstanding issues raised by defendant in her December 4, 2017 application.
We disagree with defendant's initial claim that the court committed error
and violated her due process rights when it denied reconsideration without
conducting oral argument. We acknowledge that litigants should be permitted
oral argument of motions other than calendar matters and routine discovery
applications when requested "as a matter both of due process and the appearance
of due process." Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997);
A-4105-17T2
8
see also Pressler & Verniero, Current N.J. Court Rules, cmt. 1.1 on R. 5:5-4
(2019) ("[T]here is a strong presumption favoring argument of motions other
than calendar matters and routine discovery applications.").
To that end, Rule 5:5-4(a) expressly provides:
Motions in family actions shall be governed by [Rule]
1:6-2(b) except that, in exercising its discretion as to
the mode and scheduling of disposition of motions, the
court shall ordinarily grant requests for oral argument
on substantive and non-routine discovery motions and
ordinarily deny requests for oral argument on calendar
and routine discovery motions.
"The discretion afforded by Rule 5:5-4(a) is designed to give the judge 'the
option of dispensing with oral argument . . . when no evidence beyond the
motion papers themselves and whatever else is already in the record is necessary
to a decision.'" Palombi v. Palombi, 414 N.J. Super. 274, 285 (App. Div. 2010)
(alteration in original) (quoting Fusco v. Fusco, 186 N.J. Super. 321, 328-29
(App. Div. 1982)). "In short, it is the sole purpose of these rules to dispense
with what is regarded as unnecessary or unproductive advocacy." Ibid. (quoting
Fusco, 186 N.J. Super. at 328-29).
However, a judge's inquiry does not end simply because the "nature of an
issue presented can be labeled as pertaining to a substantive issue" or when "the
parties do not agree on all facts." Id. at 286. "Other circumstances, such as the
A-4105-17T2
9
sufficiency of the supporting facts alleged are also relevant to the exercise of
discretion," especially "in the case of motions that seek a modification of
financial obligations or reconsideration of a prior order because the movant must
satisfy certain requirements before these motions are ripe for decision by the
court." Ibid. "When the record presented to the court in support of a motion is
deficient on its face to satisfy such requirement, oral argument does not afford
litigants an opportunity to cure such evidentiary deficiencies." Ibid.
In accordance with Palombi, we conclude the court properly exercised its
discretion in denying oral argument. It is clear from the court's November 14,
2017, June 28, 2017, and August 16, 2017 written statements of reasons that
the court was familiar with the issues raised by defendant's reconsideration
application, having recently completed an eleven-day plenary hearing, which
included considering the testimony of multiple witnesses, and conducting an
interview of Kathleen. Moreover, defendant's reconsideration application was
supported by a handwritten letter that contained nothing more than a self-serving
narrative of the origins of the parties' acrimonious relationship. Under these
circumstances, oral argument would have been nothing more than "unnecessary
or unproductive advocacy." See Palombi, 414 N.J. Super. at 285 (quoting Fusco,
186 N.J. Super. at 328-29).
A-4105-17T2
10
Further, defendant's application failed to comply with Rule 4:49-2 as it
did not set forth "a statement of the matters or controlling decisions which
counsel believes the court has overlooked or as to which it has erred . . . ."
Rather, the application was an improper attempt to reargue matters resolved by
the court's November 14, 2017 decision and order, and which were the subject
of extensive testimony during the plenary hearing.
We also disagree with defendant's substantive argument that the court
committed error in denying the motion for reconsideration. We first note that
defendant appeals only from the April 17, 2018 order, and not the November 14,
2017, June 28, 2017, or August 16, 2017 orders. See Fusco v. Bd. of Educ., 349
N.J. Super. 455, 461-62 (App. Div. 2002) (explaining that this court only
considers judgments and orders listed in a notice of appeal).
Reconsideration is a matter within the sound discretion of the trial court,
which we review for abuse of discretion. See Palombi, 414 N.J. Super. at 288-
89. "Motions for reconsideration are granted only under very narrow
circumstances . . . ." Fusco, 349 N.J. Super. at 462. As such, reconsideration
should be used only for those cases where "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
A-4105-17T2
11
significance of probative, competent evidence." Ibid. (quoting D'Atria v.
D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)); see R. 4:49-2.
Based upon our review of the record, it is clear that the motion judge did
not base her decision upon a palpably incorrect or irrational basis, or fail to
consider probative, competent evidence. The court's decision to modify the
parties' parenting time arrangement was the subject of testimony at the plenary
hearing, consistent with the parties' prior practice, and grounded in Kathleen's
best interests, as clearly indicated in the court's November 14, 2017 statement
of reasons. Accordingly, we conclude defendant failed to demonstrate the
motion judge abused her discretion in denying the motion for reconsideration.
However, while a second motion judge granted plaintiff's application for
a reduction of child support in a May 3, 2018 order, and the court's November
14, 2017 order establishing the parties' parenting time schedule addressed
defendant's request that Kathleen "come home while father is at work" and "at
night before school," it does not appear that the court resolved defendant's
request contained in her December 4, 2017 application for modification of the
June 19, 2012 order, or her request that plaintiff ensure Kathleen receives her
medication "without any issues." Accordingly, the court should address these
outstanding matters on remand.
A-4105-17T2
12
To the extent we have not specifically addressed any of defendant's
remaining contentions, it is because we find they have insufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-4105-17T2
13