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Francisca Kitele v. Josephat Kitele

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 15, 2011

FRANCISCA KITELE, PLAINTIFF-RESPONDENT,
v.
JOSEPHAT KITELE, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-662-98.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 23, 2011 Before Judges Cuff and Sapp-Peterson.

Defendant Josephat Kitele appeals from the April 1, 2010 order of the Family Part denying his motion for reconsideration and granting plaintiff Francisca Kitele's motion to enforce litigant's rights. We affirm.

On March 10, 2010, plaintiff filed a motion to enforce litigant's rights, seeking an order adjudicating that defendant did not comply with the court's previous order because he failed to contribute towards the college expenses plaintiff incurred for the parties' three daughters and to provide proof of medical insurance covering the children. Defendant filed a cross-motion seeking the court's reconsideration of its order that defendant contribute towards his children's tuition and also seeking a credit towards child support. The court denied the motion, placing its reasons orally on the record on March 31. The present appeal followed.

On appeal, defendant failed to set forth his legal arguments in point heading as required pursuant to Rule 2:6-2(5). As best as we can discern, he challenges the denial of his motion for reconsideration.

Rule 4:49-2 provides that a motion seeking reconsideration of a court's judgment or order "shall 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." A party is entitled to reconsideration where the court's decision has a "palpably incorrect or irrational" basis or "it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence." Dario v. Dario, 242 N.J. Super. 392, 401 (Ch. Div. 1990). A motion for reconsideration should not be made merely because a party is dissatisfied with the court's decision. Ibid. "[A] litigant must initially demonstrate that the Court acted in an arbitrary, capricious, or unreasonable manner, before the Court should engage in the actual reconsideration process." Ibid.

Here, in addition to not setting forth in point headings his specific legal arguments, defendant also failed to provide a copy of the transcript as part of the record on appeal, and failed to articulate the controlling decisions the motion judge "overlooked or to which it has erred." R. 4:49-2. Thus, our appellate function has been seriously hampered. Nonetheless, we employ an abuse of discretion standard in our review of a denial of a motion for reconsideration. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996) (adopting the federal courts' abuse of discretion standard as the appropriate norm for appellate review of a denial of a motion for reconsideration). On this record, we are unable to discern any abuse of discretion in denying reconsideration to defendant.

Affirmed.

20110415

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