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Debra A. Amir v. Yehuda A. Amir

December 2, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-152-06.

Per curiam.


Submitted May 25, 2011

Before Judges Fuentes and Ashrafi.

In this matrimonial case, defendant Yehuda A. Amir seeks to appeal several post-judgment orders entered by the Family Part. This is the second time defendant has appealed the judgment of the trial court. Amir v. Amir, Nos. A-4662-06, A-0098-07, A-1802-07 (App. Div. Aug. 19, 2009). In lieu of reciting here the parties' tumultuous relationship and this case's protracted and contentious litigation history, we incorporate by reference our recitation of the procedural and factual history, described at length in our previous opinion. Id. (slip op.) at 2-18.

In the first appeal, defendant argued that the trial court erred in: (1) determining the amount of equitable distribution due plaintiff; (2) failing to find that the parties reached an enforceable settlement agreement; and (3) denying defendant's recusal motion. Id. at 1-2. We remanded for the trial court to reconsider the award of equitable distribution, and rejected the balance of defendant's arguments. Id. at 33-34.

Defendant now challenges the trial court's order modifying the parenting time arrangement with respect to his four teenaged children, now ages eighteen, sixteen, and two age fourteen. Defendant also seeks appellate review of an order entered by the court on November 7, 2008, awarding plaintiff $2,750 in counsel fees.

On June 15, 2009, plaintiff moved to suppress defendant's brief due to multiple violations of our rules of appellate practice. In response, we directed defendant to resubmit his brief correlating the statements of fact in his brief with the materials in the appendix. Defendant thereafter amended his Notice of Appeal to seek the reversal of an order entered by the trial court dated January 29, 2010, denying his motion for reconsideration of an order entered on October 30, 2009 that awarded plaintiff counsel fees. Defendant also sought appellate review of an order revising the parenting time schedule. We consolidated these two appeals on May 14, 2010.

On July 26, 2010, plaintiff filed a motion to dismiss defendant's appeal due to multiple deficiencies in his appellate brief and appendix. We denied plaintiff's motion on the condition that defendant "serve an appendix to the supplemental brief, in a form prescribed by the Rules of Court and as outlined in the July 30, 2010 letter from the [c]lerk's [o]ffice."

Defendant's brief and appendix remains in violation of our rules of appellate practice. Pursuant to Rule 2:9-9, failure to properly prosecute an appeal constitutes grounds for the imposition of sanctions, "including, but not limited to, dismissal of the appeal . . . ." We have opted not to dismiss the appeal or impose any other sanction. We note, however, that defendant's failure to present to us an adequate record of the proceedings before the trial court has negated appellate review of the parenting time schedule. Specifically, defendant did not include, as part of the appellate record, the transcript of the judge's in camera interview of the oldest child, who the court relied on to also convey the wishes and attitudes of the three younger siblings. Without this record, we are unable to determine whether the judge's decision was a reasonable exercise of his discretionary authority.

With respect to the award of counsel fees, defendant's notice of appeal seeks review only of defendant's motion for reconsideration. We review a trial court's order denying reconsideration under an abuse of discretion standard. Davis v. Devereux Found., 414 N.J. Super. 1, 17 (App. Div. 2010), certif. granted, 205 N.J. 78 (2011). Defendant's only argument at the hearing on his motion for reconsideration was that the trial judge misunderstood the attorneys' fees provision of Rule 5:3-5. That is not a proper ground for reconsideration.

A motion for reconsideration is analyzed in accordance with Rule 4:49-2, which provides, in relevant part, that "[t]he motion 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 motion for reconsideration should be granted in the interest of justice, and is appropriate only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence. [Dover-Chester Assocs. v. Randolph Twp., 419 N.J. Super. 184, 196 (App. Div.) (quoting Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996)), certif. denied, 208 N.J. 338 (2011).]

We discern no abuse of discretion in the trial court's refusal to grant defendant's motion for reconsideration ...

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