JAMES ORSINI VS. KATHRYN ROST ORSINI (FM-02-1742-13, 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NOT FOR PUBLICATION WITHOUT THE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-2821-18T3
JAMES ORSINI,
Plaintiff-Respondent,
v.
KATHRYN ROST ORSINI,
Defendant-Appellant.
_________________________
Submitted February 12, 2020 – Decided March 5, 2020
Before Judges Fuentes, Haas and Mayer.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket FM-02-1742-13.
Kathryn Rost Orsini, appellant pro se.
Piro Zinna Cifelli Paris & Genitempo, LLC, attorneys
for respondent (Frank J. Zinna and Alex A. Pastore,
on the brief.)
PER CURIAM
In this post-judgment matrimonial appeal, defendant Kathryn Rost Orsini
appeals from a February 8, 2019 order denying reconsideration of a December
18, 2018 order concerning custody and parenting time. We affirm substantially
for the reasons stated by Judge Jane Gallina-Mecca in her oral opinion placed
on the record on February 8, 2019.
We briefly summarize the facts relevant to defendant's appeal. The parties
were divorced pursuant to a July 8, 2014 Dual Judgment of Divorce (DJOD).
The DJOD incorporated the parties' Marital Settlement Agreement (MSA). The
MSA included a shared parenting plan and shared custody regarding the parties'
three minor children. After the DJOD, defendant relocated to Maryland,
rendering a shared custody arrangement and parenting plan unworkable.
Plaintiff James Orsini became the parent of primary residence (PPR).
Various Family Part judges conducted case conferences to resolve the
parties' custody and parenting time issues. The efforts were unsuccessful, and a
plenary hearing was scheduled to settle those issues.
In connection with the scheduled plenary hearing, the parties served
discovery. To prepare for the hearing, plaintiff filed several motions seeking
discovery from defendant. According to plaintiff, defendant's discovery
responses were incomplete or deficient.
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Around this time period, defendant failed to return the children to New
Jersey after exercising her parenting time. As a result, the judge suspended
defendant's parenting time pending an evaluation by a psychologist.1 Defendant
declined to schedule the required psychological evaluation. Because defendant
refused to provide court ordered discovery and participate in the evaluation,
Judge Gallina-Mecca struck her pleadings without prejudice.
Based on defendant's non-compliance with court orders, plaintiff moved
to terminate his child support obligation, strike defendant's pleadings with
prejudice, declare a plenary hearing on the issues of custody and parenting time
moot, and reaffirm his status as the parent of primary residence. Defendant did
not file opposition to the motion despite being served with the motion papers.
In a December 18, 2018 order and written statement of reasons, Judge Gallina -
Mecca granted the relief sought by plaintiff.
Defendant filed a motion to reconsider the December 18, 2018 order.
Judge Gallina-Mecca conducted oral argument,2 and denied reconsideration in
an oral decision placed on the record on February 8, 2019.
1
The judge ordered both parties to submit to a psychological evaluation
regarding their ability to parent the children.
2
Defendant, who was self-represented at the reconsideration motion hearing,
participated by telephone.
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On appeal, defendant raises the following arguments:
POINT I
THE TRIAL COURT ERRED IN REFUSING TO
GRANT RECONSIDERATION OF HER ORDER OF
DECEMBER 18, 2018 AND ENFORCE THE
PARTIES['] MSA AND PARENTING AGREEMENT
AND MODIFIED AGREEMENT.
POINT II
THE COURT ERRED IN ORDERING THAT
RESPONDENT HAD THE DESIGNATION OF PPR
WITHOUT A PLENARY HEARING.
POINT III
THE COURT ERRED IN ORDERING THAT THE
APPELLANT COULD NOT PARENT HER CHILD
PER THE PROVISIONS OF THE MSA UNLESS SHE
BE THE FIRST TO SUBJECT HERSELF TO A
PSYCHOLOGIST'S EVALUATION WHEN SHE
ORDERED BOTH PARTIES TO HAVE AN
EVALUATION BUT ALLOWED RESPONDENT
FULL ACCESS AND PARENTING RIGHTS.
POINT IV
THE COURT VIOLATED THE APPELLANT'S DUE
PROCESS RIGHTS FOR STRIKING APPELLANT'S
PLEADINGS FOR ALLEGEDLY NOT PROVIDING
RESPONDENT DISCOVERY.
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POINT V
THE COURT ERRED IN DETERMINING THAT
APPELLANT'S ISSUES PURSUED BEFORE JUDGE
FIRKO WERE MOOT WHEN THE ISSUES WERE
RIPE AND HAD BEEN PROPERLY PURSUED FOR
MORE THAN A YEAR AND A HALF.
POINT VI
THE COURT ERRED IN ORDERING THAT THE
RESPONDENT HAD THE DESIGNATION OF PPR,
WITHOUT AN EVIDENTIARY HEARING, IN THE
ABSENCE OF EXIGENT CIRCUMSTANCES.
POINT VII
THE BERGEN COURT JUDGES HAVE ENGAGED
IN A PATTERN AND PRACTICE OF REWARDING
THE FRIVOLOUS MOTIONS PRACTICE OF THE
RESPONDENT'S ATTORNEY IN BLATANT
DISREGARD OF THE MSA AND THE PARENTING
AGREEMENT AND CONTRACTUAL
MODIFICATION, THUS THE BERGEN COURTS[']
AWARDS OF ATTORNEY[']S FEES AND COSTS
ARE IN ERROR AND SHOULD BE VACATED.
The standard of review for denial of reconsideration is whether the trial
court abused its discretion. Triffin v. Johnston, 359 N.J. Super. 543, 550 (App.
Div. 2003). "Reconsideration itself 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)). Reconsideration "should be utilized only for
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those cases that fall into 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." Ibid. "[T]he magnitude of the
error cited must be a game-changer for reconsideration to be appropriate." Id.
at 289. We will not disturb a judge's denial of a motion for reconsideration
absent a clear abuse of discretion. Pitney Bowes Bank, Inc. v. ABC Caging
Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015).
Here, defendant's motion failed to make the requisite showing for
reconsideration in accordance with Rule 4:49-2. The judge rendered the
December 18, 2018 decision based on evidence presented at that time.
Defendant chose not to submit opposition to plaintiff's motion. Only after the
judge issued the December 18, 2018 order did defendant seek to provide
information to the court as part of a motion for reconsideration.
Reconsideration is properly denied when the application is based on
unraised facts known to the party seeking reconsideration prior to the entry of
the challenged order and "cannot be used to expand the record." Capital Fin.
Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 2008).
"A motion for reconsideration is designed to seek review of an order based on
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the evidence before the court on the initial motion, R. 1:7-4, not to serve as a
vehicle to introduce new evidence in order to cure an inadequacy in the motion
record." Ibid. (citing Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div.
1996)).
Defendant failed to articulate any new facts or matters overlooked or
misapplied by Judge Gallina-Mecca or her predecessor judges. Defendant
submitted "new" evidence in a belated and improper attempt to undo the
December 18, 2018 order. After reviewing the record and considering the
applicable legal standard, we affirm denial of defendant's motion for
reconsideration for the reasons set forth in Judge Gallina-Mecca's February 8,
2019 oral decision.
We add only the following comment. Appellate courts review legal
arguments addressed to claimed errors by trial courts. Criticism of trial judges
who made rulings adverse to the party filing an appeal do not constitute proper
appellate argument. A party's contention that a trial judge was unfair or biased
"cannot be inferred from adverse rulings against a party." Strahan v. Strahan,
402 N.J. Super. 298, 318 (App. Div. 2008).
Defendant's certification in support of reconsideration criticized the
Family Part judges who handled her matrimonial matter. Our review on appeal
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is confined to the legal arguments presented. Based on the appellate record,
defendant was accorded every opportunity to present evidence in support of her
position regarding custody, child support, and parenting time. However,
because defendant refused to provide full discovery, declined to submit to a
parenting time evaluation, and failed to oppose plaintiff's motion related to the
children, the Family Part judges lacked information necessary to review
defendant's contentions.
Affirmed.
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