JOSE LUIS ROSARIO VS. LILLIAN ROSARIO (FM-02-1442-07, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-4978-16T2
JOSE LUIS ROSARIO,
Plaintiff-Respondent,
v.
LILLIAN ROSARIO,
Defendant-Appellant.
_________________________
Argued January 8, 2019 – Decided March 14, 2019
Before Judges Vernoia and Moynihan.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-1442-07.
Lillian Rosario, appellant, argued the cause pro se
(Joseph Rakofsky, on the brief).
Jose I. Bastarrika argued the cause for respondent
(Bastarrika, Soto, Gonzalez & Somohano, attorneys;
Jose I. Bastarrika, of counsel; Andrew Burroughs, on
the brief).
PER CURIAM
Defendant Lillian Rosario appeals from the Family Part judge's June 14,
2017 order that denied her motion to reconsider a March 21, 2017 order and
granted plaintiff Jose Luis Rosario's cross-motion providing the following relief:
finding her in contempt for violating the final judgment of divorce and the March
21, 2017 order; directing that she pay $94,535.04 to plaintiff, and entering
judgment against her in that amount in favor of plaintiff, to cover the balance
due pursuant to the March 2017 order that required defendant to reimburse
plaintiff $193,117.07; appointing plaintiff the attorney-in-fact for the sale of
properties in Connecticut; and awarding plaintiff counsel fees.1 The March 2017
order held defendant in violation of litigant's rights and directed that she pay
plaintiff for various costs associated with the mortgage, taxes, utilities and
repairs made to the marital home prior to its sale.
In her merits brief, defendant argues:
I. JUDGMENT SHOULD BE REVERSED BECAUSE
"PROOFS" CONSISTING OF FORGERIES (AND
OTHER INSTANCES OF FRAUD) SHOULD NOT
BE TOLERATED BY ANY JUDGE AND SHOULD
1
Defendant listed only the June 2017 order – not the March 2017 order – as
appealed in the notice of appeal and civil case information statement she filed.
We have made it clear that we will not address an order if the appellant "did not
indicate in his [or her] notice of appeal or case information statement that he [or
she] was appealing from the order." Fusco v. Bd. of Educ. of Newark, 349 N.J.
Super. 455, 460-61 (App. Div. 2002). As such, we only consider defendant's
appeal from the June order.
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NOT BE RELIED UPON TO PREJUDICE AN
INNOCENT PARTY, WHICH IS EXACTLY WHAT
OCCURRED TO DEFENDANT-APPELLANT IN
[THE TRIAL JUDGE'S] COURTROOM.
II. JUDGMENT SHOULD BE REVERSED BECAUSE
THE TRIAL JUDGE'S ABUSE OF DISCETION,
REFLECTED IN [THE] DECISION TO REFUSE TO
INVESTIGATE WHY EXPENSES PRESENTED
(FOR "2011 EXPENSES") BY PLAINTIFF-
APPELLEE WERE FIRST REPRESENTED TO THE
COURT IN 2011 AS $58,000 AND THEN, LATER, IN
2017, WERE AGAIN PRESENTED BY PLAINTIFF-
APPELLEE TO THE COURT, BUT THIS TIME
WERE BLATANTLY MISREPRESENTED IN
PLAINTIFF-APPELLEE'S SO CALLED "PROOFS"
WHICH NOW REQUESTED $124,000 (FOR THE
VERY SAME "2011 EXPENSES"), AS WELL AS
INSTANCES OF FORGERY AND OTHER ACTS OF
FRAUD, PERPETRATED BY PLAINTIFF-
APPELLEE, CLEARLY PREJUDICED
DEFENDANT-APPELLANT, WHICH WILL
RESULT IN EXTREME HARM TO DEFENDANT, IF
PERMITTED TO STAND.
III. JUDGMENT SHOULD BE REVERSED
BECAUSE THE TRIAL JUDGE'S ABUSE OF
DISCRETION, NOT ONLY REFLECTED IN HIS . . .
DECISION TO REFUSE DEFENDANT-APPELLANT
A HANDWRITING EXPERT AND A FORENSIC
EXPERT, BUT ALSO IN HIS . . . SURPRISING
REFUSAL TO ORDER A HANDWRITING EXPERT
AND A FORESNIC EXPERT, SUA SPONTE, TO
INVESTIGATE THE SPECIFIC INSTANCES OF
FORGERY, WHICH WERE CLEARLY
ARTICULATED ON THE RECORD, IS
PREJUDICAL ERROR, WHICH WILL RESULT IN
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EXTREME HARM TO DEFENDANT-APPELLANT,
IF PERMITTED TO STAND.
IV. JUDGMENT SHOULD BE REVERSED
BECAUSE THE TRIAL JUDGE'S ABUSE OF
DISCRETION, REFLECTED IN HIS HONOR'S
DECISION TO REFUSE DEFENDANT-APPELLANT
DISCOVERY CLEARLY PREJUDICED
DEFENDANT-APPELLANT, WHICH WILL
RESULT IN EXTREME HARM TO DEFENDANT IF
PERMITTED TO STAND.
V. JUDGMENT SHOULD BE REVERSED "IN THE
INTEREST OF JUSTICE" AS AN APPELLATE
REVIEW AND GUIDANCE ARE IMMEDIATELY
NECESSARY, OTHERWISE THE RULING BELOW,
IF PERMITTED TO STAND, WILL IRREPARABLY
INJURE DEFENDANT.
VI. JUDGMENT SHOULD BE REVERSED
BECAUSE THERE IS SUFFICIENT EVIDENCE TO
DEMONSTRATE AN OBJECTIVELY
REASONABLE DOUBT AS TO THE TRIAL
COURT'S IMPARTIALITY BECAUSE THE
COURT'S RULING WAS BASED ON ARBITRARY
GROUNDS AND THE PUNITIVE MEASURES
IMPOSED UPON DEFENDANT-APPELLANT ARE
UNREASONABLE AND DISPROPORTIONATE.
VII. JUDGMENT SHOULD BE REVERSED
BECAUSE DEFENDANT-APPELLANT WAS
DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
VIII. THIS HONORABLE COURT SHOULD
PROVIDE RELIEF TO DEFENDANT-
APPEL[L]ANT PURSUANT TO RULE 4:50-1,
WHICH SPECIFICALLY CONTEMPLATES
"FRAUD" AND "MISREPRESENTATION" AS
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BASES FOR RELIEF TO AVOID A "GRAVE
INJUSTICE."
We review the denial of a motion for reconsideration for an abuse of
discretion. Cummings v. Bahr, 295 N.J Super. 374, 389 (App. Div. 1996). 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)).
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, 295 N.J Super. at 384 (quoting D'Atria v.
D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)); see also Fusco, 349 N.J.
Super. at 462.
In her brief to the Family Part in support of the motion for reconsideration,
defendant recognized the foregoing legal tenets and "assure[d] [the] reviewing
[Family Part] court the motion herein relies on the record as originally presented
and improperly represented. The facts are the same, it's the untainted version
that warrants reconsideration." She tellingly admitted that she was "not seeking
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to 'expand' the record before the court, but rather reexamine it based on the truths
and the proofs."
During the original motion hearing, the Family Part judge repeatedly
pointed to defendant's failure to prove her allegations. During the
reconsideration hearing, defendant's counsel represented that defendant had
provided counsel with "some significant information that was not available . . .
prior to the hearing." On the day of the hearing, she requested the judge to
consider those documents, including a certification from a repair man – who had
allegedly been unavailable due to his travel schedule – asserting the amount paid
on certain repairs was exaggerated by plaintiff. The certification was submitted
to the court the day of the hearing and was not previously sent to plaintiff or
plaintiff's counsel. The judge ruled the certification was not properly before the
court.
Counsel then argued that defendant's signatures, appearing on cashed
insurance checks covering repairs to the marital home – also presented to the
court for the first time on the day of the hearing – were forged. The judge
responded, "All [defendant] did [was] mention that there were proceeds from
[an insurance claim for damage caused by Superstorm Sandy], but there was
nothing in . . . those documents[] to demonstrate . . . how . . . any of the properties
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were damaged by Sandy[.]" The judge also noted defendant did not file a
complaint with the insurance company or prosecutor's office alleging forgery.
Defense counsel further argued that the marital home was not sold for over nine
years, a delay she alleged was caused by plaintiff's insistence that the house be
sold well above market value. The judge replied he "was looking for supporting
documentation as to that assertion" but "didn't see any appraisals for the property
as part of your papers that showed" the property's value. Defendant's counsel
admitted that "all this information was provided to me post-filing."
The only reason advanced by defendant for the failure to submit proofs,
other than the repairman's unavailability, is her lawyer's failure to properly
represent her. She contends "[t]he facts here provide incontrovertible evidence
that the expenses were improperly presented, woefully misrepresented and
substantially exaggerated." She has not shown, however, that any documents
she now relies on to support her opposition to relief sought in plaintiff's cross -
motion were not obtainable prior to the March hearing. Indeed, the motion had
been carried to February 2017 from November 2016, at request of defendant.2
2
Defendant's request for an adjournment of the March hearing in order to allow
her to obtain substitute counsel was denied.
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Reconsideration is not an appropriate vehicle to bring to the court's
attention evidence that was available but not presented in connection with initial
argument. Fusco, 349 N.J. Super. at 463. We perceive no abuse of discretion
by the judge in denying defendant's motion for reconsideration. Defendant's
dissatisfaction with the judge's ruling and her counsel's performance is obvious
but does not present a basis for reversal where the judge's decision is supported
by the record. Capital Fin. Co. of Del. Valley v. Asterbadi, 398 N.J. Super. 299,
310 (App. Div. 2010).
We determine the balance of defendant's arguments are without sufficient
merit to warrant discussion in this written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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