SHARI L. POLLAK VS. DAVID KALEN (FM-18-0469-06, SOMERSET COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: January 8, 2020
• Docket: A-0911-18T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0911-18T1

SHARI L. POLLAK,

Plaintiff-Respondent,

v.

DAVID KALEN,

Defendant-Appellant. _____________________________

Submitted November 4, 2019 – Decided January 8, 2020

Before Judges Messano and Vernoia.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-0469-06.

David Kalen, appellant pro se.

Jill Lisa Gropper, attorney for respondent.

PER CURIAM

Defendant David Kalen and plaintiff Shari L. Pollak were married in 1991

and together had three children, who were born in 1993, 1996 and 2000. Plaintiff filed a divorce complaint in 2005, and, following trial, the court entered

an amended final judgment of divorce on December 18, 2008. A December

2016 consent order modified the parties' obligations, specifically with respect to

defendant's child support and arrears, and the parties' respective percentage

obligations for the children's unreimbursed medical expenses. 1

Motion practice continued unabated, however, leading to Judge Kimarie

Rahill's February 2018 order that addressed plaintiff's motion to enforce

litigant's rights and defendant's cross-motion which sought, among other things,

to schedule a plenary hearing, to declare plaintiff wholly responsible for the

children's medical costs, and to compel reunification therapy. Plaintiff moved

for reconsideration, and defendant responded, incorporating, through counsel's

certification, essentially the same requests for relief sought in the earlier cross-

motion. Defendant did not file a cross-motion. After considering oral argument,

Judge Rahill entered an order on June 5, 2018. The judge granted in part and

denied in part plaintiff's request for reconsideration, stating her reasons in a

comprehensive written opinion.

On July 9, 2018, defendant filed a motion seeking reconsideration of both

the February and June orders. Defendant requested that the court vacate the

1 The actual order is not in the record. A-0911-18T1 2 June order; require "financial disclosure to recalculate child support based upon

emancipation" of one of the children; schedule the matter for a plenary hearing;

and provide for a "conference relating to anticipated motion practice."

The court's August 10, 2018 order disposed of defendant's motion for

reconsideration. Judge Rahill denied defendant's requests for counsel fees, a

plenary hearing and a conference. However, she only denied in part defendant's

request for financial disclosure by plaintiff in order to recalculate child support

obligations based on the parties' son's emancipation. The judge ordered an

exchange of updated Case Information Statements within fourteen days "so that

[the] child support amount can be recalculated in view of . . . emancipation as

of January 1, 2018."

In her written statement of reasons, the judge appropriately set forth the

standard for reconsideration. She first noted that the June 2018 order was the

result of plaintiff's motion for reconsideration, and, while defendant opposed the

motion and his counsel orally argued in opposition, defendant never filed a

cross-motion seeking relief. To the extent defendant sought reconsideration of

the February order, it was, of course, time-barred. See R. 4:49-2 (requiring the

motion for reconsideration be served within twenty days).

A-0911-18T1 3 The judge concluded that defendant's motion for reconsideration "d[id]

not provide any new facts that were not previously known and . . . that were not

previously raised as a response to [p]laintiff's . . . [m]otion for

[r]econsideration." She then addressed each of defendant's asserted reasons

supporting reconsideration and explained in detail why the relief was

unwarranted.

Defendant filed this appeal on September 25, 2018, after we granted him

leave to file as within time. Our order limited the appeal only to consideration

of the August 10, 2018 order denying his motion for reconsideration.

Defendant argues the judge gave no more than a cursory review of his

arguments and failed to order a plenary hearing on allegations, first raised

months earlier, that plaintiff never consulted him about the children's medical

and other expenses.2 He further contends that contrary to N.J.S.A. 9:2-4,

plaintiff failed to properly consult him about child care expenses, despite the

parties sharing joint custody, and that she fraudulently misled defendant prior to

entering into the consent order.

2 Defendant also asserts the judge should not have decided the motion without oral argument. However, his motion for reconsideration specifically "waived [argument] unless scheduled by the [c]ourt." The judge explained why sh e did not order oral argument. A-0911-18T1 4 We have made it clear that

[r]econsideration itself is "a matter within the sound discretion of the [c]ourt, to be exercised in the interest of justice[.]" It is not appropriate merely because a litigant is dissatisfied with a decision of the court or wishes to reargue a motion, but

should be utilized only for those cases which fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate[,] the significance of probative, competent evidence.

[Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).]

"[T]he magnitude of the error cited must be a game-changer for reconsideration

to be appropriate." Id. at 289.

We in turn review the denial of the motion for reconsideration and decide

whether the trial court abused its discretion. Cummings v. Bahr, 295 N.J. Super.

374, 389 (App. Div. 1996). An abuse of discretion "arises when a decision is

'made without a rational explanation, inexplicably departed from established

policies, or rested on an impermissible basis.'" Flagg v. Essex Cty. Prosecutor,

171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration &

Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).

A-0911-18T1 5 We agree substantially with Judge Rahill's reasoning. Defendant failed to

demonstrate the court's earlier June 2018 order was "based upon a palpably

incorrect or irrational basis, or . . . [that Judge Rahill] either did not consider, or

failed to appreciate the significance of probative, competent evidence."

Palombi, 414 N.J. Super. at 288. Defendant's reconsideration motion was

nothing more than the proverbial second bite of the apple.

Affirmed.

A-0911-18T1 6