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Gallagher v. Cocozza


July 25, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FD-14-63-02.

Per curiam.


Submitted July 15, 2008

Before Judges Parker and Gilroy.

Plaintiff Paula J. Gallagher appeals from the following orders of the Family Part: 1) order of July 10, 2007, which, among other matters, granted plaintiff parenting time in Arizona with the parties' daughter from July 14, 2007, through July 28, 2007; 2) order of September 20, 2007, which denied plaintiff's motion seeking a change of venue; 3) order of October 1, 2007, which awarded defendant $1,620 in counsel fees; 4) order of October 25, 2007, which, among other matters, denied plaintiff's motion for reconsideration of the order of July 10, 2007; 5) order of October 3, 2007, which denied plaintiff's application for an order to show cause (OTSC); and 6) order of November 9, 2007, which denied plaintiff's application for an OTSC seeking a stay of the prior five orders. We affirm in part and remand the matter to the trial court for further proceedings consistent with this opinion.

Defendant is, and has been throughout his relationship with plaintiff, a resident of Florham Park, Morris County. At the time the parties began their relationship in 1991, plaintiff was divorced and had two daughters from her prior marriage. Although the parties never married, plaintiff and her two daughters moved into defendant's home in Florham Park. One child was born of their relationship, a girl,*fn1 in 1995.

In 1999, plaintiff moved to Arizona, leaving the parties' daughter in the custody of defendant. On July 20, 2001, plaintiff filed a complaint seeking custody, support, and other equitable relief. On February 24, 2003, the parties filed a consent order partially resolving some of their economic claims.

On July 10, 2003, the trial court entered a consent order, which provided that the parties would share joint legal custody of their daughter, with defendant designated as the parent of primary residence, subject to plaintiff's reasonable right of visitation. As to parenting time, the order provided:

The [c]court notes that the parties are attempting to negotiate a comprehensive parenting agreement, which will facilitate visitation by [p]laintiff with the parties' daughter during summer vacations, holidays, and other times during the year. The parties shall continue their efforts to resolve these issues. The [c]court has suggested that the parties consent to binding arbitration in the event that they are unable to achieve a settlement in this regard. Either party may file a new non-dissolution action clearly and definitively setting forth such issues.

Plaintiff has continued to reside in Arizona since the entry of the July 10, 2003 order. Over the following summers, plaintiff has exercised parenting time with their daughter in Arizona, of which the longest duration was for a period of four weeks in 2004. On June 20, 2007, because the parties could not agree on plaintiff's parenting time schedule with their daughter in Arizona for that year, plaintiff filed an application for an OTSC, seeking: 1) "[i]mmediate commencement of four weeks of summer visitation with my daughter"; 2) "[i]mmediate release and copies of all records from any medical or psychological evaluation and/or treatment, including prescription medication of [my daughter] during the last [six] years"; 3) "temporary restraining order [(TRO)] on Kathi [(defendant's girlfriend)] until a mutually agreeable . . . court-ordered forensic psychologist conducts [an] . . . evaluation of the . . . Cocozza home life . . . and the relationship between [my daughter] and Kathi with respect to parental alienation of the biological mother."*fn2

On July 10, 2007, the trial court conducted a hearing on plaintiff's application for an OTSC, during which plaintiff voluntarily withdrew her application for a TRO against Kathi. Because their daughter was not only scheduled to attend the Florham Park Teen Day Camp from July 9 through July 13, 2007, but also to participate in recreational soccer in the latter part of August that year, the judge granted plaintiff limited parenting time of two weeks with the daughter in Arizona for that summer. However, as to future summers, the judge directed that plaintiff was entitled to four weeks of parenting time each summer in Arizona, which could be, but not necessarily need be, consecutive, depending on their daughter's other scheduled activities. As to the parenting time issue, a confirming order entered that day provided in relevant part:

Plaintiff shall have parenting time with the child . . . in Arizona from July 14, 2007 to July 28, 2007. For all summers going forward, plaintiff shall have four weeks of summer parenting time with the child in Arizona. No later than February 1st of each year, plaintiff shall provide defendant with the four summer weeks during which she wishes to exercise her summer parenting time. Plaintiff's parenting time need not be consecutive but shall occur in two-week blocks. Defendant shall respond to plaintiff's proposed summer parenting time schedule by no later than February 28th of each year and identify any conflict between plaintiff's proposed scheduled and the child's scheduled activities.

In addition, the order directed the parties to develop a comprehensive parenting time schedule for plaintiff, and if they could not agree, that the court would appoint a parenting coordinator to assist the parties in that endeavor.

On or about July 22, 2007, plaintiff moved for reconsideration of the order of July 10, 2007.*fn3 In her supporting certification, plaintiff contends that she was denied a fair hearing on July 10, 2007, asserting that the trial judge was biased in favor of defendant. Plaintiff requested that the original trial judge of July 10, 2007, recuse himself from further proceedings in the matter; the court grant her request for a restraining order against Kathi; and the court reverse itself on that part of the order which limited plaintiff to two weeks of parenting time with their daughter in Arizona in the summer of 2007.

On August 28, 2007, plaintiff filed a motion seeking a change of venue.*fn4 Because the judge who heard the matter on July 10, 2007, had retired from the bench, the motion was heard by a second judge on September 19, 2007, with plaintiff appearing telephonically. A review of the transcript of the motion proceeding not only discloses that plaintiff had moved for a change of venue, contending that the Morris County courts were involved in a conspiracy with defendant and his attorney to deprive plaintiff a fair hearing, but also that plaintiff had expressed her disagreement with the order of July 10, 2007, asserting that the certifications submitted by defendant in opposition to the July 10, 2007 proceeding were false. We also discern from a review of the transcript that plaintiff, although not requested in the notice of motion, sought via a reply certification, a TRO against her former husband, Ron Gallagher, a non-party to this action. Determining that plaintiff had not provided any evidence in support of her theory of conspiracy, or any valid reason to change venue, the trial judge denied the motion. A confirming order was entered the following day on September 20, 2007.

Contending that the motion had been brought in bad faith, defendant sought leave to file an application for attorneys' fees. The judge granted the request, directing that defense counsel submit a certification of services with an application for counsel fees on or before September 26, 2007, and that plaintiff file any objection thereto no later than October 3, 2007. Contrary to the schedule provided by the trial judge, the trial judge, on receipt of defense counsel's application for attorneys' fees, granted defendant's application on October 1, 2007, two days before plaintiff was required to file her opposition. An order was entered on October 1, 2007, awarding defendant counsel fees of $1,620.

In his expression of reasons attached to the order granting the fee application, the judge stated in pertinent part: "[p]laintiff filed an application to change venue asserting a conspiracy between [the first trial judge] and others. In neither her certifications[,] nor oral argument on the day of the motion, could plaintiff provide even the slightest thread to responsibly argue that the [c]court conspired with the parties against the plaintiff. Such an allegation is extremely serious, and yet plaintiff made the allegation without foundation." As to his analysis of the factors contained in Rule 5:3-5(c), the judge stated:

For all these reasons[,] the [c]court concludes that the plaintiff had no basis to seek the relief[,] and therefore, there is no reason why the defendant should bear the cost of an attorney to defend against the litigation. The [c]court specifically reviewed R. 5:3-5(c). The plaintiff's position was entirely unreasonable. (Factor 3). Her position lacked merit. (Factor 7).

It would be unfair for the defendant to bear the cost of defense of this litigation. (Factor 9).

On October 25, 2007, the second judge denied plaintiff's motion for reconsideration of the order of July 10, 2007, on the papers. A confirming order entered the same day directed that:

1) plaintiff's application for a TRO against defendant's girlfriend was denied; 2) plaintiff's application for the first trial judge to recuse himself was denied as moot, the judge having retired from the trial bench; 3) plaintiff's application to reconsider her summer 2007 child visitation schedule was denied as moot; and 4) plaintiff's request for the court to direct forensic evaluations of defendant, his girlfriend, the parties' daughter, and plaintiff was denied. In pertinent part, the statement of reasons attached to the order provided:

The application for a [TRO] against Kathi . . . is denied for the following reasons. In the initial motion application for which this is a reconsideration, plaintiff on the record withdrew her request for a [TRO]. In addition, however, [Kathi] is not a party to this litigation and is, therefore, not subject to the jurisdiction of the [c]court in any event.

Plaintiff filed an application for a forensic evaluation previously which was heard by [the first trial judge]. Plaintiff offers nothing in these papers other than that which she previously submitted to [the first trial judge] with her comments expressing displeasure with that decision.

R. 4:49-2 provides the basis upon which a [c]court may alter or amend a judgment or order. The motion for reconsideration does not present to the [c]court any statement of the matter or controlling decision which plaintiff believes the [c]court has overlooked. R. 4:50-1 provides other basis upon which the plaintiff could seek relief from the prior order. Nothing is presented in accordance with that [r]ule which would lead this [c]court to believe that the requirements of that [r]ule have been satisfied. Therefore, the relief is denied.

On October 3, 2007, the trial judge denied plaintiff's request for an OTSC.*fn5 The application was denied without prejudice to plaintiff to apply for a domestic violence restraining order against her former husband, either in New Jersey or Arizona. The court denied plaintiff's request seeking an immediate change in custody, determining that the matter was not emergent, plaintiff had not asserted irreparable harm, and the allegations had been previously raised in prior motions and ruled on by the court. Lastly, the court denied the requests for investigations of defendant, his counsel and the first trial judge, determining that trial courts do not undertake independent investigations and that plaintiff had other avenues of relief.

On October 29, 2007, plaintiff filed an application for an OTSC, seeking a stay of all orders pending appeal. The judge denied the application for an OTSC, determining that plaintiff should proceed by way of motion, rather than an application for an OTSC.

Plaintiff indicates in her statement of procedural history that on an unspecified date, she had filed a motion for reconsideration of the October 1, 2007 order, which had awarded counsel fees; and although her motion papers were considered by the court, the motion was denied by the trial judge on November 2, 2007. A copy of the notice of motion is not contained in the appendix.

On appeal, plaintiff argues:




"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. 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). It is against these standards that we review the decision below.

Motions for reconsideration are governed by Rule 4:49-2. Reconsideration is a matter to be exercised in the trial court's sound discretion. Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988). "A litigant should not seek reconsideration merely because of dissatisfaction with a decision of the [c]court." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). "Reconsideration should be utilized only for those cases which fall [within] that narrow corridor in which either 1) the [c]court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]court either did not consider, or failed to appreciate the significance of probative, competent evidence." Ibid.

Moreover, a party cannot use the reconsideration process to do what should have been done in the original proceeding. Reconsideration is only to point out "the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." R. 4:49-2. Reconsideration cannot be used to expand the record and reargue the matter. A motion for reconsideration is designed to seek review of an order based on the evidence before the court on the initial matter. R. 1:7-4.

A motion for reconsideration is not the procedure for the introduction of new evidence in order to cure an inadequacy in the trial record. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).

We have considered plaintiff's arguments in light of the record and applicable law. We determine that all of the arguments made are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.

Plaintiff argues that the first trial judge erred in limiting her parenting time with the parties' daughter in Arizona during the summer of 2007 to a period of only two weeks, rather than granting the four consecutive weeks that she had requested. We agree with the second trial judge's determination on plaintiff's motion for reconsideration that the issue is moot because our decision would not have any practical affect on the controversy. Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006). "Issues that have been rendered moot by subsequent developments render legal issues abstract and outside the proper realm of courts." In re City of Plainfield's Park-Madison Site, 372 N.J. Super. 544, 550 (App. Div. 2004), certif. denied, 182 N.J. 630 (2005). Such is the case here.

Plaintiff contends that the second trial judge erred in denying her motion for a change of venue, asserting that the Morris County trial courts are biased in favor of defendant because he is a police officer in Florham Park. We carefully reviewed the transcript of the proceedings on the motion for recusal, and are satisfied that plaintiff did not present a valid, factual basis supporting her request. Although Rule 4:3-3(a) provides in part that a change of venue may be ordered "if there is a substantial doubt that a fair and impartial trial can be had in the county where venue is laid," plaintiff did not present any facts to justify the change in venue on that ground.

Plaintiff only presented allegations and suppositions based on her personal prejudices against defendant and his attorney, not facts supported by the record. The judge offered plaintiff several opportunities during the motion hearing to present facts showing that she could not receive a fair hearing in Morris County, but plaintiff failed to do so. The mere fact that a party is a police officer in the county where an action is pending does not require a change in venue. A police officer is a member of the Executive Branch of Government, not the Judicial. Moreover, plaintiff's prime concern was that she believed the first motion judge had deferred to the defendant's version of events because of defendant's occupation as a police officer. Although there are no facts to support that allegation, the contention was mooted when the first trial judge retired from the bench before the motion for reconsideration was argued.

Lastly, plaintiff challenges the trial court's award of counsel fees in defending against the motion seeking a change of venue. Plaintiff does not challenge the necessity of the services rendered or the amount awarded to counsel, only that the second trial judge had entered the order awarding the fees on October 1, 2007, two days before she was required to have filed her opposition.

We agree that the judge's entry of the October 1, 2007 order was premature, as the judge had not received or considered plaintiff's opposition. However, based on the record before us, we are not able to determine whether the error was harmless or whether it resulted in an unjust result. R. 2:10-2. The appendix does not contain a copy of plaintiff's motion for reconsideration, stating the reasons why she opposed the attorney fee application. Moreover, the trial judge did not consider the merits of plaintiff's motion for reconsideration, denying the motion without prejudice because plaintiff had filed her notice of appeal, divesting the trial court of jurisdiction.

R. 2:9-1(a). Because the appendix does not contain a copy of plaintiff's motion, we are not able to exercise original jurisdiction in determining the propriety of the October 1, 2007 order. Accordingly, we remand the matter to the trial court to consider the merits of plaintiff's motion for reconsideration of the October 1, 2007 order awarding defendant counsel fees.

Affirmed in part; and remanded to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.

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