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Smith v. Smith

Superior Court of New Jersey, Appellate Division

August 29, 2013

ELLEN RADER SMITH, Plaintiff-Respondent,
JERROLD SMITH, Defendant-Appellant.


Argued January 29, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-0046-08.

Jerrold Smith, appellant, argued the cause pro se.

Eric S. Solotoff argued the cause for respondent (Fox Rothschild LLP, attorneys; Mr. Solotoff, of counsel and on the brief; Sandra C. Fava, on the brief).

Before Judges Lihotz and Kennedy.


Defendant appeals from the Family Part's March 13, 2012 order denying his motion for reconsideration of the court's order of January 27, 2012, which denied reconsideration of orders entered in November 2011. We affirm for substantially the same reasons expressed by the motion judge.

The parties were married on May 30, 1998, and a dual judgment of divorce was entered on December 9, 2008, which included an award of legal fees to plaintiff. On January 27, 2009, the court entered an order requiring defendant to cooperate with the equitable distribution of twelve financial accounts. Plaintiff later made three separate motions to enforce litigant's rights as a consequence of defendant's failure to comply with the order. On November 14, 2011, the court found defendant to be in violation of litigant's rights for his failure to cooperate in the equitable distribution of the accounts. He was also ordered to pay counsel fees.

On December 5, 2011, defendant filed his first motion for reconsideration of the November 14, 2011 order enforcing litigant's rights. This motion was procedurally defective for failure to include the proper notices, and was thus returned to defendant. Defendant then resubmitted his motion, but, on January 27, 2012, the court denied defendant's motion.

Defendant filed a second motion for reconsideration on February 14, 2012, in which he sought reconsideration of the court's January 27, 2012 order dismissing his prior motion for reconsideration. However, defendant's motion was denied on March 13, 2012. In his statement of reasons, the trial judge stated, in part:

The Defendant has brought a motion for reconsideration of the denial of reconsideration. No such motion exists. . . .
The general standard of review for a motion for reconsideration provides that a motion for reconsideration should not be made merely because a party is dissatisfied with the court's decision. D'Atria v. D'Atria, 242 N.J.Super. [392, ] 401 (Ch. Div. 1990). Rather 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." 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. Simply put, [d]efendant did not file the motion for reconsideration within twenty days after service of the order, as required by Rule 4:49-2. This time limit cannot be enlarged.

We agree and affirm.

Defendant appeals from the denial of his motion for reconsideration of the denial of a prior motion for reconsideration. No such relief is provided for in our rules. See R. 4:49-2; D'Atria, supra, 242 N.J.Super. at 401. Filing another motion to reconsider the denial of reconsideration does not resurrect that order, and a party cannot indefinitely extend the period for appeal by filing serial motions for reconsideration.

Defendant's appeal of the January 27, 2012 order denying his motion for reconsideration is untimely. Appeals from final judgments must be taken within forty-five days of their entry. R. 2:4-1(a); Lombardi v. Masso, 207 N.J. 517, 540 (2011). Defendant filed his notice of appeal on April 24, 2012, approximately eighty-eight days after the January 27, 2012 order.

Further, defendant designated the March 13, 2012 order in the notice of appeal as the order being appealed from. The January 2012 order is not mentioned in either the notice of appeal or plaintiff's case information statement. Therefore, we have limited our review to the provisions of the March 13, 2012 order.

Rule 2:5-1(f)(3)(A) provides that "[i]n civil actions the notice of appeal . . . shall designate the judgment, decision, action or rule, or part thereof appealed from . . . ." Only the designated order are subject to the appeal process and review. See, e.g., 30 River Court East Urban Renewal Co. v. Capograsso, 383 N.J.Super. 470, 473-74 (App. Div. 2006) (refusing to review orders dismissing the defendant's affirmative claims because they were not included in the notice of appeal); Campagna ex rel. Greco v. American Cyanamid Co., 337 N.J.Super. 530, 550 (App. Div.) (refusing to consider an order not listed in the notice of appeal), certif. denied, 168 N.J. 294 (2001). "Consequently, if the notice [of appeal] designates only the order entered on a motion for reconsideration, it is only that proceeding and not the order that generated the reconsideration motion that may be reviewed." Pressler & Verniero, Current N.J. Court Rules comment 6.1 on R. 2:5-1 (2013). We have so held in a number of cases. See, e.g., W.H. Industries, Inc. v. Fundicao Balancins, Ltda, 397 N.J.Super. 455, 458-59 (App. Div. 2008) (considering only the order denying reconsideration because it was the only order designated in the notice of appeal); Fusco v. Bd. of Educ. of City of Newark, 349 N.J.Super. 455, 461-62 (App. Div.) (reviewing only denial of the plaintiff's motion for reconsideration and refusing to review the original grant of summary judgment because that order was not designated in the notice of appeal), certif. denied, 174 N.J. 544 (2002).

The remainder of defendant's arguments are insufficient to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).


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