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Smith v. Smith

Superior Court of New Jersey, Appellate Division

August 29, 2013

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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.

PER CURIAM.

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 ...

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