Opinion
A-2707-20
11-29-2022
CHANDRA JATAMONI, Plaintiff-Respondent, v. KAVITHA DANDU, Defendant-Appellant.
Kavitha Dandu, appellant, argued the cause pro se. Chandra Jatamoni, respondent, argued the cause pro se.
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.
Argued October 31, 2022
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1862-18.
Kavitha Dandu, appellant, argued the cause pro se.
Chandra Jatamoni, respondent, argued the cause pro se.
Before Judges Enright and Bishop-Thompson.
PER CURIAM
In this highly contentious and litigious matrimonial matter, defendant Kavitha Dandu appeals from two post-judgment orders entered on April 16, and May 7, 2021. Finding no merit in the twenty-eight arguments defendant raised for our consideration, we affirm.
We preface our remarks by noting the record provided to us is limited. Additionally, because the orders defendant challenges relate back to the parties' December 2018 judgment of divorce (JOD) and certain post-judgment orders in the record, we refer to the JOD and other orders not under review to provide context for our disposition.
The parties were previously married and share a daughter, now eleven years old. Before the parties divorced on December 5, 2018, they entered into a property settlement agreement (PSA), which was incorporated into the JOD. The PSA provided, in part:
2.1 The parties shall have legal custody of the minor child born of the marriage. [Defendant] shall have primary residential custody of the child. . . . [Plaintiff] shall have parenting time every Friday at 6:00 p.m. to Sunday at 6:00 p.m. The parties will attempt to utilize a mediator before pursuing litigation. The cost of mediation shall be borne equally by the parties.
2.3 The parties shall communicate with each other on a regular basis concerning the child's health, education and welfare, and will share and make accessible to each other all school records, report cards, medical reports and . . . other documentation of like . . . character that may come into their possession. . . . Schools shall be
instructed to send all mailing to the addresses of both parents.
2.8 Each party shall be entitled to two . . . weeks with the child, each summer. If the parties are to take the child out of the country, they shall provide the other party with all travel and contact information. The [plaintiff] shall retain the child's passport . . . and VISA, but shall provide the VISA and passport to [defendant] upon her showing of all necessary travel information . . . . Upon [defendant's] return to the United States with the child from any trip, she shall immediately return the passport . . . and VISA to [plaintiff,] who shall continue to be responsible for maintaining same by [o]rder of the [c]ourt.
7.8 Each party will retain all the personal property in their possession and waive any interest in the property in the other party's possession. This will include all items not already set forth herein, including any jewelry that [defendant] may own by way of gift or purchase.
7.9 Both parties claim that the other took the contents of the safe deposit box . . . . As the box is empty there is nothing to distribute.
The record reflects that a mere nine days after entry of the JOD, defendant moved to discharge her attorney, change the location for parenting time exchanges from New Jersey to New York, and for sole custody of the parties' daughter. Plaintiff opposed defendant's application and cross-moved for sole custody of the child, as well as other relief.
Following argument on the cross-applications in January 2019, Judge Gerald J. Council relieved defendant's attorney and temporarily transferred physical custody of the parties' daughter to plaintiff, subject to defendant having supervised visits with the child. The judge took this action after finding defendant "violated a previous [c]ourt [o]rder by moving the child to New York without the [c]ourt's permission." Judge Council entered a conforming order on February 5, 2019.
The February 5 order also authorized plaintiff to enroll the child in school in New Jersey, granted plaintiff's request to retain the child's passport and visa consistent with the JOD, and denied plaintiff's request for counsel fees. Further, the judge granted plaintiff's request to hold defendant in contempt of court "for her intentional disregard and non-compliance of [a c]ourt [o]rder" and for inserting a handwritten change to paragraph 2.8 of the PSA on December 5, 2018, without plaintiff's knowledge or consent, immediately before the divorce was finalized.
In April 2019, defendant secured a temporary restraining order against plaintiff. That same month, and again in June, and September 2019, defendant moved for additional relief before Judge Council. Among her requests for relief, defendant sought: physical custody of the parties' daughter; permission for the child to live in New York with her; termination of supervised visitation; and joint legal custody. Plaintiff opposed the motion and cross-moved for additional relief, including a request for child support and an award of counsel fees.
Judge Council entered an order on October 29, 2019, denying defendant's motion in full and partially granting plaintiff's motion. In his accompanying written opinion, the judge found it was "in the best interest of the child to remain with . . . [p]laintiff" and that "[d]efendant ha[d] not provided sufficient proof that it would be in the best interest of the child to relocate." He also noted the parties' daughter was removed from defendant's custody months earlier because defendant relocated with the child to New York without the court's permission. Next, after imputing an income to defendant based on her working full-time at minimum wage, the judge fixed defendant's obligation for child support at $93 per week.
Judge Council also awarded plaintiff counsel fees in the sum of $2,450, noting plaintiff certified defendant "continuously filed motions asking for the same relief, causing him to incur more fees by responding to the same motion." The judge directed defendant to pay the fee award within forty-five days or be subject to a bench warrant. He found the award was warranted because of "bad faith on the [part of d]efendant for repeated filings," explaining she "continuously filed the same motion asking for the same or similar relief, which include[d] her motions filed in April, June and September." Additionally, the judge stated he "recognize[d] . . . [p]laintiff responded to . . . defendant's [September] motion pro se because he could no longer afford to pay his attorney's fees." Moreover, Judge Council determined defendant had the means to reimburse plaintiff for the fees he incurred because "[she] received over $80,000 in the divorce settlement."
In February 2020, plaintiff moved to enforce the October 29 order and requested a bench warrant based on defendant's failure to timely pay the $2,450 counsel fee award. Plaintiff also sought to have defendant satisfy her child support arrears through probation. Defendant filed no opposition to plaintiff's motion.
In an order dated February 28, 2020, Judge Council denied plaintiff's request for a bench warrant and allowed defendant an additional sixty days to pay the counsel fees previously ordered. Further, the judge directed defendant to satisfy any child support arrears through probation within thirty days. The February 28 order reflected defendant filed no opposition to plaintiff's motion and that a copy of the order would be served on the parties within seven days.
In December 2020, plaintiff moved for permission to renew the child's passport; he also asked Judge Council to issue a bench warrant due to defendant's failure to timely pay the $2,450 counsel fee award. On January 21, 2021, Judge Council granted plaintiff's unopposed request to renew the child's passport, finding plaintiff had "residential custody of the child" as of January 30, 2019, and under the terms of the JOD, "the parties clearly intended the child to have a valid passport." Although the judge denied plaintiff's request for a bench warrant, he adjudicated defendant "in violation of . . . plaintiff's . . . rights" based on "her failure to pay . . . plaintiff's legal fees as twice directed," and afforded her another sixty days to satisfy the fee award.
In February 2021, defendant filed a motion listing seventeen requests for relief, including a request that Judge Council "reconsider and set . . . aside" the January 21 order because "there was no representation" on her behalf. Further, she asked the judge to: compel plaintiff to submit proof of service for the December 2020 motion he filed; reconsider the $2,450 counsel fee award as well as her child support obligation; order plaintiff "to hand-over [her] stuff"; and "re-open the trial."
As to the latter request, defendant contended the 2018 JOD "was . . . obtained under undue influence of [her] attorney and . . . no free consent from" her. She also certified she received the January 21 order from plaintiff via email, but he failed to serve her with the underlying motion before the January 21 order was executed. Further, she certified she faxed the court her current postal address in New York in October 2019 and was "not responsible" if her new address was not "updated in the court records."
In March 2021, plaintiff filed opposition to defendant's motion and cross-moved for additional relief. He certified he served defendant with the December 2020 motion via certified mail at the address on file.
Approximately two weeks later, Judge Council's chambers provided notice to the parties by email permitting defendant a week to respond to plaintiff's December 2020 motion "in light of the dispute of the service of process of the initial motion." The email continued, "[t]his will allow . . . defendant to be adequately heard on the issues presented in . . . plaintiff's [December 2020] motion." Further, the email informed the parties that defendant's anticipated response to plaintiff's December 2020 motion would "be treated like a motion for reconsideration [of] the January 21, 2021 order," and any "[a]dditional requests for relief must be filed in a separate motion."
Defendant filed another motion on March 25, 2021, setting forth an additional fourteen requests for relief, including: denial of plaintiff's December 2020 motion "in its entirety"; permission for the child to be with defendant until defendant's February 2021 motion was decided; and reconsideration of the October 29, 2019 counsel fee award.
On April 16, 2021, Judge Council again granted plaintiff's request to renew the passport for the parties' child and directed defendant to pay plaintiff the previously awarded counsel fee. He also denied defendant's request to reconsider the October 29 fee award, deeming it untimely under Rule 4:49-2. Nonetheless, he afforded her an additional sixty-day grace period to pay the outstanding fees.
In a comprehensive written opinion accompanying the order, the judge explained he would "enforce the parties' JOD as well as . . . prior court orders." Also, in denying many of defendant's requests for relief, Judge Council reiterated his directive that defendant was "to file a response to . . . plaintiff's motion to address only the relief sought by . . . plaintiff in his December . . . 2020 notice of motion." Therefore, to the extent she sought relief outside these parameters, the judge "decline[d] to address" those requests, including her request for "immediate parenting time." He also denied certain other requests based on defendant's lack of proofs. However, Judge Council granted defendant's request to permit the parties' daughter to have a mobile phone to facilitate communication with the child. The judge also compelled plaintiff to provide defendant with copies of certain records pertaining to the child.
Less than a month later, the judge addressed the parties' remaining applications. In an order dated May 7, 2021, the judge granted defendant weekly video calls with the child, as coordinated by the court's supervised visitation staff, "until in-person supervised visitation [could] be accommodated." Additionally, the judge awarded defendant telephone contact with the parties' daughter on days when defendant had no scheduled supervised video calls with the child. Further, the judge directed the parties to use Our Family Wizard to communicate about and coordinate contact with the child. Lastly, the judge denied without prejudice the parties' remaining claims for relief and directed all prior orders to remain in effect to the extent they were not modified by the May 7 order.
Our Family Wizard is an online tool designed to facilitate communications between divorced or separated parents.
On appeal, defendant raises the following overlapping arguments, which we recite verbatim:POINT I
For the convenience of the reader, we have corrected minor punctuation errors in defendant's point headings, where bracketed, and deleted references to defendant's appendices. To the extent we have not included point headings from defendant's reply brief, it is because we do not consider arguments newly raised in a reply brief. See Pannucci v. Edgewood Park Senior Hous. - Phase 1, LLC, 465 N.J.Super. 403, 409-10 (App. Div. 2020) (citation omitted) (noting the impropriety of raising new issues in a reply brief).
THE TRIAL COURT ERRED BY CONSIDERING AND ADDRESSING ONLY FEW POINTS OF THE APPELLANT[']S MOTIONS DATED 17 FEB[.] 2021 AND 25 MARCH 2021 ON PICK AND CHOOSE BASIS. (NOT RAISED BELOW)
POINT II
THE TRIAL COURT ERRONEOUSLY AVOIDED THE PROCEDURAL LAW AND RESTRICTED ITSELF AND THE APPELLANT TO DEAL ONLY WITH THE ISSUES RAISED BY THE PLAINTIFF/RESPONDENT AND ADDRESSED THE MOTION PARTIALLY. (NOT RAISED BELOW)
POINT III
THE TRIAL COURT NEVER CALLED THE PLAINTIFF/RESPONDENT TO SUBMIT EFFECTIVE PROOF OF SERVICE.
POINT IV
THE TRIAL COURT FAVORED PLAINTIFF/RESPONDENT AND PASSED ORDER DATED 02/28/2019 EX-PARTE ABOUT WHICH THE APPELLANT WAS NOT INFORMED TILL FEB[.] 2021[,] I.E., FOR ONE YEAR.
POINT V
THE TRIAL COURT ERRED IN PARTIALLY ALLOWING TO PROVIDE ONE SET OF DOCUMENTS OF THE CHILD TO THE APPELLANT AND FURTHER CONTRADICTED ITS OWN OBSERVATION.
POINT VI
THE COURT ERRED BY DISCRIMINATING AGAINST THE APPELLANT.
POINT VII
THE TRIAL COURT ERRED BY PASSING THE ORDER AGAINST THE APPELLANT TO PAY PLAINTIFF/RESPONDENT'S ATTORNEY'S FEES WHERE HE APPEARED PRO-SE AND PASSED AN ORDER TO ISSUE BENCH WARRANT IF THE SAME IS NOT COMPLIED WITH.
POINT VIII
THE TRIAL COURT SUPPORTED THE PLAINTIFF/RESPONDENT IN MISUSING THE ORDER OF PROTECTION AS THE COURT ITSELF FAILED TO UNDERSTAND THE NATURE OF ORDER OF PROTECTION AND MISINTERPRETED
THE LIMITED TEMPORARY ORDER OF PROTECTION.
POINT IX
THE COURT FAILED TO PROTECT THE APPELLANT'S RIGHTS AND REFUSED TO MAKE THE PLAINTIFF/RESPONDENT RESPONSIBLE FOR MISUSING TRO.
POINT X
THE TRIAL COURT WITHOUT ANY RHYME AND REASON DENIED THE APPELLANT'S REQUEST TO ALLOW HER TO PROVIDE ONE MOBILE PHONE TO THE CHILD WHICH IS UNFAIR IN SUCH HARSH TIMES OF PANDEMIC.
POINT XI
THE TRIAL COURT ERRED IN NOT CONSIDERING JOINT CUSTODY OF THE CHILD BY NOT RECONSIDERING ORDER DATED 01/30/2019 WHEREIN THE COURT BELIEVED THE PLAINTIFF/RESPONDENT'S ALLEGATION WITHOUT PUTTING HIM TO THE STRICT PROOF.
POINT XII
THE TRIAL COURT MISERABLY NEGLECTED THE PROVISION OF NEW JERSEY STATUTE 2A:12-7. (NOT RAISED BELOW)
POINT XIII
THE TRIAL COURT FAILED TO ABIDE BY THE PRINCIPLE OF NATURAL JUSTICE. (NOT RAISED BELOW)
POINT XIV
THE TRIAL COURT WHILE PASSING SUPERVISED VISITATION FAILED TO TAKE NOTE OF THE VIOLENT AND AGGRESSIVE ATTITUDE OF THE PLAINTIFF/RESPONDENT AND HENCE NEGLECTED THE LAW BY GRANTING HIM SOLE CUSTODY OF THE CHILD.
POINT XV
THE TRIAL COURT CONSIDERED MEDICAL BILLS SUBMITTED BY THE PLAINTIFF/RESPONDENT AS THE MEDICAL RECORD OF THE CHILD.
POINT XVI
THE TRIAL COURT MISERABLY FAILED TO TAKE ACTION AGAINST THE PLAINTIFF/RESPONDENT FOR HIDING CHILD'S MEDICAL REPORT.
POINT XVII
THE COURT PASSED AN ORDER OF CHILD SUPPORT WITHOUT CASE INFORMATION SHEET AND WRONGFULLY ORDERED THE APPELLANT TO PAY AN AMOUNT OF $93 PER WEEK WHEREAS THE PLAINTIFF/RESPONDENT REQUESTED FOR $83 PER WEEK.
POINT XVIII
THE TRIAL COURT FAILED TO CONSIDER THE BEST INTEREST OF THE CHILD.
POINT XIX
THE TRIAL COURT NEGLECTED THE APPELLANT'S REQUEST TO RE-OPEN THE TRIAL.
POINT XX
THE TRIAL COURT NEGLECTED THE APPELLANT'S REQUEST TO ENHANCE THE ALIMONY AMOUNT.
POINT XXI
THE TRIAL COURT FAILED TO ABIDE BY THE CUSTODY LAWS AS SET FORTH IN NJS 9:2-4. (NOT RAISED BELOW)
POINT XXII
THE TRIAL COURT NEGLECTED TO TAKE NOTE THAT THE PLAINTIFF/RESPONDENT HAS DISREGARDED IT[]S ORDER DATED 04/02/2019 AS TILL DATE HE DID NOT HAND[]OVER APPELLANT'S PERSONAL BELONGINGS.
POINT XXIII
THE TRIAL COURT IS BIASED TOWARDS THE PLAINTIFF/RESPONDENT AS THE COURT NEVER CALLED HIM TO SUBMIT ANY PROOF IN SUPPORT OF HIS ALLEGATIONS.
POINT XXIV
THE COURT FAILED TO TAKE NOTE OF THE FACT THAT THE COURT AND THE APPELLANT WAS MISGUIDED BY THE
PLAINTIFF/RESPONDENT AND THE APPELLANT'S ATTORNEY.
POINT XXV
THE TRIAL COURT MADE SEVERAL OBSERVATIONS AGAINST THE APPELLANT WITHOUT ANY STATEMENT OF REASON. (NOT RAISED BELOW)
POINT XXVI
THE TRIAL COURT FAILED TO PROVIDE PROPER DETAILED INSTRUCTION WITH REGARD TO COMMUNICATION BETWEEN THE APPELLANT AND THE CHILD. (NOT RAISED BELOW)
POINT XXVII
INFRINGEMENT OF APPELLANT'S RIGHT TO FAIR TRIAL. (NOT RAISED BELOW)
POINT XXVIII
THE TRIAL COURT'S NEGLECT TO PERFORM ITS DUTIES AMOUNTS TO OFFICIAL MISCONDUCT. (NOT RAISED BELOW)
These arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Accordingly, we affirm the April 16, 2021 and May 7, 2021 orders, substantially for the reasons outlined by Judge Council in his underlying opinions.
Appellate review is not limitless and "[t]he jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves." State v. Robinson, 200 N.J. 1, 19 (2009). Accordingly, we do not consider arguments which defendant failed to raise before the trial court. See Zaman v. Felton, 219 N.J. 199, 226-27 (2014). We add the following comments.
In general, because the Family Part has special expertise in family matters, we defer to factual determinations made by the trial court if they are "supported by adequate, substantial, and credible evidence in the record." Milne v. Goldenberg, 428 N.J.Super. 184, 197 (App. Div. 2012) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "Discretionary determinations, supported by the record, are examined to discern whether an abuse of reasoned discretion has occurred." Ricci v. Ricci, 448 N.J.Super. 546, 564 (App. Div. 2017) (citing Gac v. Gac, 186 N.J. 535, 547 (2006)). An abuse of discretion occurs when a trial court's decision "rested on an impermissible basis, considered irrelevant or inappropriate factors, failed to consider controlling legal principles or made findings inconsistent with or unsupported by competent evidence." Elrom v. Elrom, 439 N.J.Super. 424, 434 (App. Div. 2015) (internal quotation marks and citations omitted). However, we review the Family Part's interpretation of the law de novo. D.W. v. R.W., 212 N.J. 232, 245-46 (2012).
A decision concerning custody is up to the sound discretion of the Family Part judge. See Randazzo v. Randazzo, 184 N.J. 101, 113 (2005). In any custody or parenting time dispute, "it is well settled that the court's primary consideration is the best interests of the children." Hand v. Hand, 391 N.J.Super. 102, 105 (App. Div. 2007) (citing Kinsella v. Kinsella, 150 N.J. 276, 317 (1997)). Therefore, a parent seeking to modify a parenting time schedule "bear[s] the threshold burden of showing changed circumstances which would affect the welfare of the children." Todd v. Sheridan, 268 N.J.Super. 387, 398 (App. Div. 1993) (citation omitted); see also Lepis v. Lepis, 83 N.J. 139, 157 (1980). Stated differently, a party seeking to change a judgment involving a custodial arrangement bears the burden of proof to demonstrate the status quo is no longer in a child's best interest. See Bisbing v. Bisbing, 230 N.J. 309, 322 (2017).
Here, we are satisfied the judge correctly determined defendant's repeated requests to modify custody and parenting time were unsupported by evidence of a material change in circumstances affecting the child's best interest. Hand, 391 N.J.Super. at 105. Accordingly, we see no reason to disturb either the April 16, 2021 or May 7, 2021 orders.
Regarding defendant's challenge to the judge's calculation of her child support payments, it is well established a Family Part judge "has substantial discretion in making a child support award. If consistent with the law, such an award will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice." Jacoby v. Jacoby, 427 N.J.Super. 109, 116 (App. Div. 2012) (quoting Foust v. Glaser, 340 N.J.Super. 312, 315-16 (App. Div. 2001) (internal citations and quotations marks omitted)).
"[A] parent is obliged to contribute to the basic support needs of an unemancipated child to the extent of the parent's financial ability." Martinetti v. Hickman, 261 N.J.Super. 508, 513 (App. Div. 1993). "[I]t is also firmly established that child support is for the benefit of the child[]; therefore, the right to receive support belongs to the child[], not the custodial parent." Ricci, 448 N.J.Super. at 570 (citations and quotation marks omitted). Additionally, where a judge finds a parent is underemployed or unemployed, the judge may impute income to that party for the purpose of determining child support. Elrom, 439 N.J.Super. at 435 (citing Caplan v. Caplan, 182 N.J. 250, 268-70 (2005)).
Here, the record is devoid of any evidence, financial or otherwise, to demonstrate the judge abused his discretion in imputing a minimum wage income to defendant when fixing her child support obligation. Thus, we perceive no basis to disturb Judge Council's child support order.
Regarding defendant's argument that plaintiff was obliged to "hand over" personal property to her pursuant to an April 2, 2019 order, we initially note defendant failed to include this order in her submissions. More importantly, as we mentioned, the PSA incorporated into the JOD provided
7.8 Each party will retain all the personal property in their possession and waive any interest in the property in the other party's possession. This will include all items not already set forth herein, including any jewelry that [defendant] may own by way of gift or purchase.
7.9 Both parties claim that the other took the contents of the safe deposit box . . . . As the box is empty there is nothing to distribute.
[(emphasis added).]
Accordingly, we do not conclude, as defendant urges, that Judge Council erred by not compelling plaintiff to "hand over" to defendant any personal property items in his possession following the final hearing.
Next, we recognize an award of counsel fees is subject to appellate review under an abuse-of-discretion standard. Barr v. Barr, 418 N.J.Super. 18, 46 (App. Div. 2011). A trial court's decision to grant or deny attorney's fees in a family action will be disturbed "only on the 'rarest occasion,' and then only because of clear abuse of discretion." Strahan v. Strahan, 402 N.J.Super. 298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). An award of counsel fees may be appropriate when one party acts in bad faith, regardless of the parties' economic circumstances. See Yueh v. Yueh, 329 N.J.Super. 447, 461 (App. Div. 2000) (quoting Kelly v. Kelly, 262 N.J.Super. 303, 307 (Ch. Div. 1992)) ("'[W]here one party acts in bad faith, the relative economic position of the parties has little relevance' because the purpose of the award is to protect the innocent party from unnecessary costs and to punish the guilty party.").
As already noted, defendant contests the propriety of the October 29, 2019 counsel fee award. But we note the preamble of the October 29 order states the matter was "opened to the [c]ourt on July 18, 2019 by a . . . [m]otion and a duplicate filing [i]n September filed by" defendant. Further, in his October 29 statement of reasons, the judge found defendant acted in "bad faith" due to her "repeated filings," noting she "continuously filed the same motion asking for the same or similar relief, which includes her motions filed in April, June and September [2019]." Additionally, the judge credited plaintiff's assertion that he incurred counsel fees to address defendant's serial motions until he ultimately addressed the last round of her duplicative filings on his own. Under these circumstances, the judge did not abuse his discretion in awarding plaintiff a modest counsel fee of $2,450.
We also agree with Judge Council that defendant filed an untimely motion for reconsideration of the October 29, 2019 counsel fee award. Under Rule 4:49-2, courts may reconsider final judgments or orders within twenty days of entry. Accordingly, defendant's belated requests in 2021 for reconsideration of the 2019 counsel fee award were properly rejected by Judge Council. As we have made clear, a party's "status as a pro se litigant in no way relieves [the litigant] of [the] obligation to comply with . . . court rules." Venner v. Allstate, 306 N.J.Super. 106, 110 (App. Div. 1997).
To the extent Judge Council denied defendant's other requests for reconsideration in his April 16 and May 7 orders, we note that a trial court's decision to deny a motion for reconsideration will be upheld on appeal unless the decision was an abuse of discretion. Granata v. Broderick, 446 N.J.Super. 449, 468 (App. Div. 2016) (citing Fusco v. Bd. of Educ., 349 N.J.Super. 455, 462 (App. Div. 2002)). 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 Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigr. and Naturalization Servs., 779 F.2d 1260, 1265 (7th Cir. 1985)).
Reconsideration is appropriate only in those cases "in which either (1) the [judge] has expressed [his] decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the [judge] either did not consider, or failed to appreciate the significance of probative, competent evidence." Granata, 446 N.J.Super. at 468 (quoting Fusco, 349 N.J.Super. at 462, aff'd o.b., 231 N.J. 135, 136 (2017)). The proper object of such a motion is to correct a [judge's] error or oversight, and "not to re-argue [a] motion that has already been heard for the purpose of taking the proverbial second bite of the apple." State v. Fitzsimmons, 286 N.J.Super. 141, 147 (App. Div. 1995).
Reconsideration is not warranted where a litigant is merely unhappy with a decision or wants to reargue a motion. Palombi v. Palombi, 414 N.J.Super. 274, 288 (App. Div. 2010). Governed by these standards, we discern no reason to disturb the judge's denial of defendant's various requests for reconsideration in the challenged orders.
We also note that despite the parties' dispute over whether defendant was properly served with plaintiff's December 2020 motion, which ultimately led to Judge Council revisiting his January 21, 2021 order, the judge properly allowed reconsideration of that order without compelling defendant to adhere to the more stringent standard of reconsideration under Rule 4:49-2. As such, defendant was afforded due process prior to the entry of the April 16 and May 7, 2021 orders. See Klier v. Sordoni Skanska Constr. Co., 337 N.J.Super. 76, 84 (App. Div. 2001) (citing Doe v. Poritz, 142 N.J. 1, 106 (1995)) ("The minimum requirements of due process of law are notice and an opportunity to be heard[,] . . . mean[ing] an opportunity to be heard at a meaningful time and in a meaningful manner.").
Finally, contrary to defendant's arguments, we are not persuaded Judge Council was biased in favor of plaintiff or that the judge committed official misconduct. Indeed, these arguments are totally lacking in merit. R. 2:11-3(e)(1)(E). A judge will not be considered biased solely based on rulings that are unfavorable to the party seeking a judge's recusal. State v. Marshall, 148 N.J. 89, 186-87 (1997). Moreover, the record makes clear Judge Council was even-handed in his enforcement of the JOD, as well as his post-judgment orders, and he carefully assessed the parties' arguments throughout their serial filings.
Because the judge's factual findings are well supported by competent, credible evidence in the record, his legal conclusions are unassailable.
In sum, we conclude there is no basis to disturb the April 16, or May 7, 2021 orders. To the extent we have not addressed defendant's remaining arguments, they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.