SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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J. C.C ., Plaintiff

- Respondent,

v. S.L.D. , Defendant

- Appellant.
Submitted May 14, 2019

– Decided June 28 , 2019 Before Judges Gilson and Natali. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FD

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- 05. Adinolfi, Molotsky, Burick & Falkenstein, PA, attorneys for appellant (Drew A. Molotsky, on the briefs). Puff & Cockerill LLC, attorneys for respond ent (Christine C. Cockerill, on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

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In this non

- dissolution matter , 1 defendant appeals from a n April 17, 2018 Family Part order denying reconsideration of a November 14, 2017 order, which amended the parties' weekly parenting time sch edule with respect to their now fifteen

- year old daughter, K.B.D. (Kathleen). 2 We affirm in part , and remand in part to permit the court to resolve two requests for relief not addressed by the court in its April 17, 2018 o rder

. Soon after Kathleen's birth , and for much of her life, the parties have engaged in contentious motion practice resulting in over twenty orders addressing paternity, custody, parenting time, and child support issues . The April 17, 2018 order under review has its genesis in a June 24 , 2015 application filed by defendant where she, and her husband, sought to relocate with Kathleen to South Carol ina. Plaintiff opposed the June 2 4 , 2015 application, and sought the following relief by way of a July 20, 2015 cross - motion: 1) to be declare d the parent of primary residence; 2) the entry of an amended parenting time schedule in the event defendant relocated outside of New Jersey ; 3) enforcement

1 The non

- dissolution or FD docket provides a mechanism for parents not married to each other or not seeking a divorce to address custody, parenting time, paternity, and child support. R.K. v. D.L. , 434 N.J. Super. 113, 131 (App. Div. 2014).

2 We employ a pseudonym for K.B.D., and initials for plaintiff and defendant, to protect their privacy.3 A

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of the court's prior orders regarding pick up/drop off of Kathleen at school, and to prevent defend ant from interfering with his parenting time; 4) authorizing plaintiff's wife and extended family to pick up Kathleen from school; 5) requiring defendant to pay her share of Kathleen's medical and dental expenses through the probation department; and 6) co unsel fees.
The court conducted an eleven

- day plenary hearing from February 2016 to November 2016 , which addressed the relocation, custody, parenting time, and other issues raised by the parties' motion papers. 3 In addition, on January 31 , 2017, the cou rt conducted an extensive interview of Kathleen. The court issued three orders, dated June 28, 2017, August 16, 2017, and November 14, 2017, all accompanied by comprehensive written statements of reasons , which resolved all issues raised by the parties ' J une 24, 2015 and July 20, 2015 applications. The court's June 28, 2017 order denied defendant's application to remove Kathleen to South Carolina. The court also denied without prejudice plaintiff's request to be appointed Kathleen's parent of primary re sidence. In the event, however, defendant elected to relocate to South Carolina without Kathlee n , the June 28, 2017 order provided that plaintiff would then be designated Kathleen's primary residential custodian.

3 The parties have not included any o f the transcripts from the plenary hearing.4 A

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In its accompanying written decision, the motion judge exhaustively addressed all the evidence elicited at the plenary hearing, and concluded it would be contrary to Kathleen's best interests to relocate to South Carolina. In reaching its decision, the co urt made specific, adverse credibility findings against defendant. Indeed, the court stated it was "repeatedly [] struck by the impression that [d]efendant's desire to remove [Kathleen] [was] either pretextual or malicious , " as if it was part of a "longstan ding goal of diminishing the existence of [p]laintiff i n [Kathleen's] and her life." The court continued by characterizing defendant's demeanor as "concerning," and commented that defendant's tone during the plenary hearing was "insincere . . . as if fei gning kindness

. . . . " The court noted that she was hesitant to respond to certain questions, declined to answer others because she did not recall, "was uncertain at conspicuously convenient times, and regularl y hesitated and pushed back on . . . unfavor able questions

. . . . " Finally, the court noted that defendant "frequently diverted her answers by injecting vitriolic

anec dotes about past incidents and

. . . brazenly expresse d disdain toward [the]
court's . . . parenting time orders and the intent und erlying them, instead vying to minimize [p]la i ntiff's parenting time" with Kathleen

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The cour t concluded that it was "unable to ignore the apparent agenda underlying

. . . [d]efendant's demeanor" because it crea t ed " a serious and legitimate concern about t he continued sustenance of the relationship with [Kathleen] and [p]laintiff if the ch ild is removed to South Carolina. " Accordingly, the court determined:

In light of the extensive testimony offered during this litigation, there has been what appears to be an unequivocal patter n of attempts to alienate [p]laintiff from [Kathleen's] life, dating as far back as the child's birth. From [the] court's perspective, the best interest of [Kathleen] and her continued relationships and interaction s with both of her parents, regardless of their ambivalence toward one another , is the guiding princip le at the core of this decision.
In an August 16, 2017 order and written statement of reasons , the court again denied plaintiff's request to be designa ted parent of primary residence.
The court also ordered : 1) that "either party may designate an appropriate individual to transport" Kathleen during parenting time, and permitted plaintiff's wife to pick up Kathleen during plaintiff ' s parenting time; 2) defendant to pay
her portion of Kathleen's orthodontia bill, in accordanc e with a prior court order; and 3) the parties not to interfere with the other parent' s court

- ordered parenting time. T he court also denied the parties ' request s for attorney's fees.6 A

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Finally , in a Novem ber 14, 2017 order and accompanying written decision , the court set forth a revised parenting time schedule. According to that order, plaintiff would continue to exercise co

- equal parenting time, consistent with the parties' recent practice. Specifically , plaintiff was permitted to exercise parenting time weekly with Kathleen on Wednesday s and Thursdays , and
d efendant would exercise her parenting time every Monday and Tuesday . The November 14, 2017 parenting time order permitted overnights , and directed that Kathleen would spend alternate weekends with plaintiff and defendant. The court explained that the parenting time schedule was identical to the schedule followed by the parties for over a year. 4 The court also reasoned that "in examining the record in this matter, the [ c ] ourt perceive s no valid reason not to grant [ p ] laintiff's request, especially because having the two overnights consecutively will limit the back and forth of [Kathleen] , . . . limit communication " and " disagreement between the part ies, or failure to abide by the [ c ] ourt ['s] [ o ] rder."

4 The schedule followed in practice by the part ies was different from the terms of the court's October 24, 2014 order , which provided that "[p]lainti ff shall have overnights on

. . . Tuesdays and Thursdays, or a nother two (2) consecutive days that both parties agree to, of the week that he does not have weekend parenting time." Plaintiff contended that defendant abruptly changed the parties' practice and only started follow ing the terms of the October 24, 2014 order after conferring with counsel.7 A

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Defendant filed a timely pro se motion for reconsideration on December 4, 2017 , which primarily challenged the parenting time decision memorialized in the court's November 14, 2017 order. Defendant , however, also checked off boxes on the application in which she req uested to modify a June 19, 2012 order , which required plaintiff to p rovide defendant with duplicate medical, dental , and prescription cards for Kathleen , and for defendant to submit unrei mbursed medical bills to plaintiff's counsel on a bi

- yearly basis

. Defendant also requested that Kathleen " co me home while [her] father is at work" and " at night before school, " and that Kathle e n be able to "get[] her medication without any issues."
Fina lly, she sought an increase in child support. In support of the appli cation, defendant appended a n eleven

- page handwritten document. In an order filed on April 17, 2018, the court denied defendant's motio n for reconsideration without oral argument. 5 The court denied the application after "having considered the prior sworn testimony of both parties" and because

5 The April 17, 2018 order was signed by the court on December 11, 2017. There is no explanation in the record for the approximate four

- month delay in filing the court's order. It is undisputed, however , that all pa rties received the April 17, 2018 order on April 18, 2018 , when in cour t on a separate application, and a lthough a court's order should be filed promptly, see e.g. , Rule 4:46

- 2 (c) (mandating that summary judgment orders be "rendered forthwith"), we discern no prejudice by the court's unexplained delay in filing the order under review

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defendant failed "to demonstrate that the [ c ] ourt's decision was palpably incorr ect or irrational pursuant to [ R ule ] 4:49

- 2." This appeal followed. On appeal, defendant claims that her December 4, 2017 application "was improperly denied without hearing or [ al] argument, thereby denying [her] due process of law." She also maintains that the court's Novem ber 14 , 2017 order "sua sponte . . . mo dified the parenting time schedule to a fully equal schedule, thereby unilaterally changing

. . . [d] efendant's primary residential custody to a true shared custodial arrangement." Defendant also alleges that her December 4, 2017 motion , in addition to se eking reconsideration of the November 14 , 2017 order, also sought other relie f unaddressed by the court

. We disagree with all of defendant's arguments to the extent they challeng e the court's April 17, 2018

or der. We issue a limited remand, however, for the court to resolve two

o utstanding issues raised by defendant in her December 4 , 2017 application

. We disagree with defendant's initial claim that the court committed error and violated her due process rights when it denied reconsideration with out conduc ting oral argument . We acknowledge that litigants should be permitted oral argument of motions other than calendar matters and routine discovery applications when requested " as a matter both of due process and the appearance of due process." Filippone v . Lee , 304 N.J. Super. 301, 306 (App. Div. 1997);9 A

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see also Pressler & Verniero, Current N.J. Court Rules , cmt. 1.1 on R. 5:5

- 4 (2019) (" [T]here is a strong presumption favoring argument of motions other than calendar matters and routine discovery applications. " ). To that end, Rule 5:5

- 4(a) expressly provides: Motions in family actions shall be governed by [ Rule ] 1:6

- 2(b) except that, in exercising its discretion as to the mode and scheduling of disposition of motions, the court shall ordinarily grant requests for oral argument on substantive and non

- routine discovery motions and ordinarily deny requests for oral argument on calendar and routine discovery motions.

" The discretion afforded by Rule 5:5

- 4(a) is designed to give the judge ' the option of d ispensing with oral argument . . . when no evidence beyond the motion papers themselves and whatever else is already in the record is necessary to a decision. '" Palombi v. Palombi , 414 N.J. Super. 274, 285 (App. Div. 2010) (alteration in original) (q uoting Fusco v. Fusco , 186 N.J. Super. 321, 328

- 29 (App. Div. 1982)). " In short, it is the sole purpose of these rules to dispense with what is regarded as unneces sary or unproductive advocacy

. " Ibid. (quoting
Fusco , 186 N.J. Super. at 328

- 29 ). However, a judge's inquiry does not end simply because the " nature of an issue presented can be labeled as pe rtaining to a substantive issue" or when "the parties do not agree on all facts. " Id

. at 286. " Other circumstances, such as the10 A

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sufficiency of the supporting facts alleged are also relevan t to the exercise of discretion," especially " in the case of motions that seek a modification of financial obligations or reconsideration of a prior order because the movant must satisfy certain requirements before these motions are ripe for decision by the
court. " Ibid. " When the record presented to the court in support of a motion is
defici en t on its face to satisfy such requirement, oral argument does not afford litigants an opportunity to cure such evidentiary deficiencies ." Ibid

. In accordance with Palombi , we conclude the court properly exercised its discretion in denying oral argument. It is clear from the court's November 14, 2017, June 28, 2017, and August 16, 20 17 written statements of reasons that the court was familiar with the issues raised by defendant's reconsideration application , having recently completed a n e leven

- day plenary hearing , which included considering the testimony of multiple witnesses, and conduc ting an interview of Kathleen. Moreove r, defendant's reconsideration application was supported by a handwritten letter that contained nothing more than a self

- serving narrative of the origins of the parties' acrimonious relationship . Under these circumstances, oral argument w ould have been no thing more than "unnecessary or unproductive advocacy." See Palombi , 414 N.J. Super. at 285 (quoting Fusco , 186 N.J. Super. at 328

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Further, defendant's application failed to comply with Rule 4:49

- 2 as it did not set forth "a statement of the matters or controlling decisions which counsel believes the court has overloo ked or as to which it has erred . . . . " Rather, the application was an improper attempt to reargue matters resolved by the co urt's November 14, 2017 decision and order , and which were the subject of extensive testimony during the plenary hearing. We also disagree with defendant's substantive argument that the court committed error in denying the motion for reconsideration. We first note that defendant appeals only from the April 17, 2018 order , and not the November 14, 2017, June 28, 2017 , or August 16, 2017 orders. See Fusco v. Bd. of Educ. , 349 N.J. Super. 455, 461

- 62 (App. Div. 2002) (explaining that this court only consid ers judgments and orders listed in a notice of appeal)

. Reconsideration is a matter within the sound di scretion of the trial court, which we review for abuse of discretion. See Palombi , 414 N.J. Super. at 288

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. " Motions for reconsideration are granted only under very narrow circumstances . . . ." Fusco , 349 N.J. Super. at 462

. As such, reconsideration should be used only for those cases where " 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 the12 A

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significance of probative, competent evidence." Ibid. (quoting D'Atria v. D'Atria , 242 N.J. Super. 392, 401 (Ch. Div. 1990)); see R. 4:49

- 2. Based upon our review of the record , it is clear that the motion judge did not base her decision upon a palpably incorrect or irrational basis , or fail to consider probative, competent evidence. T he court's decision to modify the parties' parenting time arrangement was the subject of testimony at the plenary hearing , consistent with the parties' prior practice, and grounded in Kathleen's best interests, as clearly indicated in the court's November 14, 2017 statement of reasons. Accordingly, we conclude defendant failed to demonstrate the motion judge abused her discretion in denying the motion for reconsideration.
However , while a second motion judge granted plaintiff's application for a reduction of child support in a May 3, 2018 order, and the court's November
14 , 2017 order establishing the parties' parenting time schedule addressed defendant's request that Kathleen " come home while father is at wor k" and " at night before school," it does not appear that the court resolved defendant's request contained in her December 4, 2017 application for modification of the June 19, 201 2 order, or her request that plaintiff ensure Kathleen receive s her medication "without any issues." According ly, the court should address these outstanding matters on remand.13 A

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To the extent we have not specifically addressed any of defendant 's remaining contentions, it is because we find they have insufficient merit to warrant discussion in a written opinion. R. 2:11

- 3(e)(1)(E). Affirmed.