December 9, 2010
ALTHEA BROWN, PLAINTIFF-RESPONDENT,
ANDRE PERRIN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. FD-02-488-01A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 17, 2010 - Decided: Before Judges Axelrad and R. B. Coleman.
In this post-judgment matrimonial matter, defendant Andre Perrin (father) appeals from the Family Part's February l9, 2010 order denying his motion for reconsideration of an order that permitted plaintiff (mother) to relocate to North Carolina with the parties' minor child. The judge found the motion to be time-barred under Rule 4:49-2. On appeal, father contends the motion for reconsideration was timely filed and the court erred in granting mother's removal application without a plenary hearing. We find both arguments unpersuasive and affirm.
We briefly recite the procedural history to place father's appeal in context. Mother, the custodial parent, filed a motion in the summer of 2009 to relocate with her then-nine-year-old daughter to North Carolina in response to father's motion to decrease child support. Both motions were withdrawn. Mother re-filed her motion in September, with a detailed certification explaining, in part, her house was in foreclosure; she would have better employment opportunities in North Carolina; the cost of housing and living was cheaper than in the tri-state area; the school system provided smaller classes and more specialized attention for their daughter; and she had family members there who would share expenses and provide after-school care for the child. She also provided a visitation proposal for father.
Father's current attorney, who had represented father in the initial motion, refused to accept service, which required the re-filing of the motion and service on father directly. That law firm then re-entered the picture and obtained an adjournment of the return date to Friday, December l8, 2009. Mother and her attorney appeared but father's attorney appeared alone and requested a further adjournment to submit a response.
Judge Melchionne accommodated the request, but set 9 a.m. on December 21 as the peremptory date for both parties and their respective attorneys to appear. Although the judge's chamber received a call late in the day on December l8 explaining that responding papers were being delivered, as of the morning of December 2l, neither the judge nor mother's attorney had received them. Additionally, mother and her attorney appeared in court as directed, but as of 9:45 a.m., father and his attorney had not. The judge granted mother's motion to relocate as unopposed, but expressly found her certification met all of the conditions set forth in Baures v. Lewis, 167 N.J. 91 (2001).*fn1
The same day, mother's attorney mailed and faxed the order to his adversary.
On January l4, 2010, father's attorney filed a motion for reconsideration, contending the relocation would result in "manifest injustice to [father] and [was] inimical, harmful and unfavorable to the interests of the minor child" and attaching a brief certification by father. Mother filed a detailed response. By order of February l9, 2010, the judge denied father's motion on procedural grounds, finding it was filed out of time. This appeal ensued.
Father acknowledges that the twenty-day deadline for filing a motion for reconsideration is one that cannot be relaxed. See R. 4:49-2 (a motion for reconsideration of an order "shall be served not later than 20 days after service of the order . . . upon all parties by the party obtaining it"); R. 1:3-4(c) (expressly prohibiting an enlargement of the time for filing such motion). He contends, however, in view of the Christmas holidays, the additional three business days permitted by Rule 1:3-3 amounted to a service date of December 28, 2009. Accordingly, he submits his reconsideration motion was timely filed.
We disagree. The record reflects that mother's attorney faxed and mailed the order to his adversary on the day it was entered, December 21, 2009. Even if we disregard father's attorney's receipt of the fax that day, the twenty-three day time prescription based on the mailing was unaffected by Christmas Day and expired on January 13, 2010. Thus father's reconsideration motion was filed a day late.
Substantively, we are also satisfied the record provides a sound basis for the judge's rulings on both the motions for relocation and for reconsideration. Despite being afforded every accommodation by the judge, resulting in a delay in the return date of mother's relocation motion, father still failed to file opposing papers. Nor did he appear on the peremptory date as directed by the court, and his attorney did not timely appear. No explanations have been provided. Even though mother's motion to relocate was unopposed, the judge did not perfunctorily grant it but properly evaluated mother's proofs in light of the applicable law and made an express finding that it met the Baures criteria.
In his reconsideration motion, father provided no statement of the precedent ignored or overlooked in the ruling to allow relocation. See R. 4:49-2 (requiring the movant to state "with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred"). Even if we were to consider father's certification that was submitted with the reconsideration motion, it was still insufficient to require a plenary hearing on the relocation issue. See Barblock v. Barblock, 383 N.J. Super. 124 (App. Div.) (holding that a plenary hearing is not required on a parent's motion to relocate to another state with a minor child where the opposing parent "failed to muster adequate reasons to forestall" the move and did not raise a "'genuine issue of fact . . . bearing upon a critical question' under the removal standards to warrant a full-blown trial" (alteration in original) (quoting Pfeiffer v. Ilson, 318 N.J. Super. 13, 14 (App. Div. l999))), certif. denied, 187 N.J. 81 (2006).