STATE OF NEW JERSEY VS. ELTEREKE DANIELS(15-02-0409, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-0224-15T1
LESLIE CAVRELL,
Plaintiff-Respondent,
v.
STEVEN FUTTERKNECHT,
Defendant-Appellant.
_________________________________________________
Submitted December 6, 2016 – Decided April 27, 2017
Before Judges Messano and Espinosa.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Bergen
County, Docket No. FM-02-885-11.
Steven Futterknecht, appellant pro se.
Leslie Cavrell, respondent pro se.
PER CURIAM
Plaintiff Leslie Cavrell and defendant Steven Futterknecht
were married in 1987 and subsequently divorced. The May 15, 2012
final judgment of divorce incorporated a negotiated Matrimonial
Settlement Agreement (MSA), in which defendant agreed to pay
$12,500 per month in permanent alimony to plaintiff. We have no
reason to detail the litigious history that has ensued, except to
note that plaintiff's motions to enforce provisions of the MSA
have been numerous and usually granted.
In February 2013, the parties entered into a consent order
in which defendant reaffirmed his agreement to pay plaintiff the
same monthly alimony contained in the MSA. Nevertheless, shortly
thereafter, defendant moved for a downward modification. He
contended his business, AMI Property Services, which rehabilitated
and sold foreclosed properties, had thrived during the country's
economic downturn in 2009 and 2010, but had earned significantly
less money after the economy rebounded.
In his July 18, 2013 order, the Family Part judge denied
without prejudice defendant's request for a reduction in alimony;
found defendant had violated plaintiff's rights under the MSA;
ordered defendant to comply fully with his alimony and child
support obligations; and awarded plaintiff counsel fees. In
November, defendant filed another motion for a downward
modification of his alimony obligations.
Defendant's motion and plaintiff's cross-motion were heard
before a different judge on two separate dates in January 2014.
The judge entered an order on June 2, 2014, denying defendant's
request for a downward modification based on changed
circumstances, and granting plaintiff's motion to compel
2 A-0224-15T1
defendant's compliance with the MSA and the July 2013 order. The
judge denied plaintiff's request to arrest defendant for his
failure to make the required payments and payments on arrearages,
but her order compelled defendant to make all required payments
within two weeks with enforcement to proceed through probation.
In a short written opinion that accompanied the order, the
judge found defendant's "circumstances in the current motion in
many respects are not markedly different" from those he presented
in the earlier 2013 motion. She concluded, "[t]he only real change
since the application rejected by [the prior judge] is the passage
of more time, during which defendant apparently decided that his
best economic course of action was still to continue operating his
business and hoping to be restored to his former financial
success."
On June 9, 2014, the judge entered an enforcement order that,
among other things, fixed defendant's arrearages at $151,245.65
and ordered him to make a lump sum payment of $32,494.04 within
one week. Defendant moved for reconsideration of the June 2 and
June 9 orders (the June 2014 orders) and a stay. The judge denied
the requests by order dated July 30, 2014.
Nearly one year later, on May 26, 2015, defendant moved to:
vacate the June 2014 orders pursuant to Rule 4:50-1 and 4:50-3;
vacate "and/or stay[]" all enforcement orders entered thereafter
3 A-0224-15T1
and any provisions of those orders requiring the issuance of bench
warrants for failure to pay; and vacate any alimony obligation
entirely and all arrearages because they were "fraudulent and
fictitious." Defendant contended his due process rights were
violated because the orders were filed five months after oral
argument. He also asserted that, despite finding merit to his
request on the record, the judge refused to grant him a plenary
hearing and failed to appoint an independent forensic accountant
or otherwise undertake an independent review of two "banker's
boxes" of receipts and financial data defendant furnished in
support of his November 2013 motion for modification.1 Defendant
argued the June 2014 orders should be vacated pursuant to Rule
4:50-1(c), (d), (e) and (f).
A third Family Part judge considered defendant's motion and
denied all requested relief in a July 28, 2015 order. In a short
written statement of reasons, the judge relied upon the prior
judge's "well-reasoned opinion" which accompanied the June 2014
orders and her denial of defendant's request for reconsideration
of those orders. The judge would "not permit 2015 relitigation
of 2014 financial issues." The judge found defendant failed to
1 In his brief, defendant characterized the judge's conduct as
"fraud and deception," and accused plaintiff and her attorney of
misconduct and "fraud on the court."
4 A-0224-15T1
assert any change in his financial circumstances since June 2014,
and also rejected any challenge to the enforcement orders.
Defendant moved for reconsideration, which the judge denied by
order dated August 14, 2015.
Defendant filed this appeal from the July 28 and August 14,
2015 orders. He argues the judge abused his discretion by not
vacating the June 2014 orders and all subsequent orders because
those orders were filed six months after the hearings in January
2014.2 Defendant also contends the judge failed to make adequate
findings of fact and conclusions of law pursuant to Rule 1:7-4.
Additionally, defendant argues the judge abused his discretion by
not vacating defendant's monthly alimony obligation and
$259,999.26 in arrearages as of the July 28, 2015 order.
We have reviewed these contentions in light of the record and
applicable legal standards. They lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only
the following.
"The trial court's determination under [Rule 4:50-1] warrants
substantial deference, and should not be reversed unless it results
in a clear abuse of discretion." U.S. Bank Nat'l Ass'n v.
Guillaume, 209 N.J. 449, 467 (2012). There is an abuse of
2 The actual delay between the hearings and the orders was five
months.
5 A-0224-15T1
discretion "when a decision is 'made without a rational
explanation, inexplicably departed from established policies, or
rested on an impermissible basis.'" Ibid. (quoting Iliadis v.
Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).
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)).
Governed by Rule 4:49-2, reconsideration is appropriate for a
"narrow corridor" of cases in which either the court's decision
was made "upon a palpably incorrect or irrational basis," or where
"it is obvious that the Court either did not consider, or failed
to appreciate the significance of probative, competent evidence."
Ibid. (quoting D'Atria, supra, 242 N.J. Super. at 401).
The judge did not mistakenly exercise his discretion in this
case.
Affirmed.
6 A-0224-15T1