Opinion
DOCKET NO. A-1290-14T3
05-06-2016
JAMES O'DONOHUE, Plaintiff-Respondent, v. SUSANNE O'DONOHUE, Defendant-Appellant.
Susanne O'Donohue, appellant pro se. Hill Wallack LLP, attorneys for respondent (James G. O'Donohue, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-145-09. Susanne O'Donohue, appellant pro se. Hill Wallack LLP, attorneys for respondent (James G. O'Donohue, of counsel and on the brief). PER CURIAM
In this post-judgment dissolution matter, defendant Susanne O'Donohue appeals from the Family Part's August 8, 2014 order denying her motion for reconsideration of the court's June 11, 2014 order granting plaintiff James O'Donohue's motion to enforce earlier orders, imposing sanctions, and requiring the distribution of the proceeds from the sale of the parties' former marital home. On appeal, defendant does not challenge the substance of the earlier order, but instead focuses on the court's denial of her informal request to "stay" the matter pending the outcome of her then-pending appeal from another order in the same case. She argues the court abused its discretion by not granting her request for an "adjournment/extension" of the due date for filing her opposition to plaintiff's motion and by ordering the proceeds' disbursement "without a responsive pleading from" her. In addition, she contends the court's denial of her subsequent motion for reconsideration was also an abuse of discretion because she produced "compelling medical reason[s] and probative evidence justifying the adjournment request and [there was no] finding by the court of either an intent to delay or resultant prejudice to the plaintiff."
Plaintiff disagrees and argues multiple reasons why defendant's appeal is without merit. He essentially argues that there was no abuse of discretion because defendant's claims of being physically unable to file timely opposition to the motion were untrue and "estopped" by virtue of an order issued by this court, defendant suffered no injury as a result of the court's order, her appeal from earlier orders that were enforced by the June 11, 2014 order were dismissed, and defendant failed to satisfy her burden to prove reconsideration was warranted.
We have considered the parties' contentions in light of our review of the record and applicable legal principles. We affirm.
After a twenty-six-year marriage, including four years of contentious litigation, the parties were divorced in 2012 pursuant to a judgment of divorce that incorporated their marital settlement agreement. Since their divorce, the parties have engaged in extensive motion practice regarding, among other issues, the sale of the former marital home and the distribution of the proceeds from that sale. The house sold in April 2014, resulting in net proceeds of approximately five hundred thousand dollars. Earlier orders required the proceeds to be held in escrow pending further order of the court.
Both parties are attorneys with extensive experience — plaintiff in divorce litigation and defendant in real estate matters. The present appeal is defendant's fifth filing. The earlier appeals were dismissed for failure to file a timely brief or were withdrawn by defendant. See O'Donohue v. O'Donohue, No. A-4038-12 (App. Div. Oct. 7, 2013), No. A-5446-12 (App. Div. Oct. 7, 2013), No. A-1443-13 (App. Div. Apr. 24, 2014), and No. A-2753-13 (App. Div. Aug. 19, 2014).
As a result of the sale, plaintiff filed a motion on April 8, 2014, returnable on May 2, 2014, seeking, among other relief, the distribution of the proceeds. Defendant wrote to the court on April 22, requesting the motion be adjourned to May 23, 2014, as she recently suffered an eye injury, causing her to experience "lightning flashes and floaters in [her] eyes, severe headaches, eye aches, dizziness, and concussion-like symptoms." She also advised she was under treatment for a "brain aneurysm." Defendant did not, however, supply the court with any medical documents verifying her conditions or their impact on her ability to submit opposing papers. In addition, she informed the court that she had "an appellate brief to prepare during the same time period." The court adjourned the motion to May 30, 2014, over plaintiff's objection.
A week after making this request, defendant filed a motion with the Appellate Division seeking a postponement of the due date for her brief.
On May 13, 2014, defendant again wrote to the court seeking another postponement. In this letter, she advised that she suffered a dog bite on May 11 that prevented her from using her right hand and arm, and requested the matter be adjourned for an additional two weeks. In support, she provided photographs of her injury and a note from a doctor that stated she could "return to work but [must] still avoid physical activity involving her right hand until released by the hand specialist." In response to defendant's request, the judge assigned to hear the motion wrote to defendant granting her a one-week adjournment to June 6, 2014. In her letter, the judge noted that the dog bite occurred near the time when defendant's "opposition should have been substantially completed . . . given the previous adjournment." Nevertheless, the judge granted the adjournment, requiring the opposition to be filed by May 22 and specifying, "No further adjournments will be granted." Despite the judge's letter, on May 22, defendant again wrote to the court requesting, "a stay while her appeal . . . was pending." In her letter, she stated that she needed the stay due to her "extraordinary pain" and her not wanting to use her hand until her "hand specialist cleared" her. Defendant did not supply any supporting medical verification.
Despite her injury, defendant was able on the same date to file another motion with the Appellate Division seeking another postponement in that matter as well. Defendant made additional submissions to the Appellate Division, on June 2, 3, and 5, despite her claimed disability. On July 14, 2014, we granted defendant's request for an extension to file her brief. In the order we noted:
This is defendant's third request for an extension. Although she states her medical issues preclude her from filing an appellate brief, her medical issues have not precluded her from filing three motions for extensions. No further extensions will be granted.
As defendant describes it in her brief to us, she "requested a stay of [the judge's] handling of the divorce during the pendency of Defendant's appeal . . . of [the judge's] denial of Defendant's [earlier] recusal motion."
Notably, this letter, unlike her earlier correspondence, was handwritten and not typed.
Defendant's appendix contains a May 27, 2014 note from a doctor stating only that she "may wear brace at work for 2 weeks." Based on the note's date, we assume it was not included in defendant's May 22, 2014 letter to the court.
The judge did not respond to the letter and, on June 11, 2014, entered an order granting plaintiff various relief, including the distribution of the sale's proceeds. Accompanying the order was the court's nine-page statement of reasons. In her statement, the judge recited the history of defendant's adjournment requests as to the pending motion, which the court found was "[c]onsistent with defendant's pattern of requesting repeated adjournments," and included a detailed chart and calculation of the amounts to be distributed to the parties from the sale's proceeds.
Defendant did not file an appeal from that order. Two days after the order's entry, defendant wrote to the judge requesting an adjustment to the court's calculation of the amounts owed to defendant. Pursuant to that informal request, the court entered an order on June 19, 2014, amending the earlier order to correct the calculation. The sale's proceeds were later distributed to the parties in accordance with the June 11 order as amended.
Defendant filed a motion for reconsideration in July 2014. By that time, the judge who signed the June 11 order had recused herself from the matter. As a result, defendant's motion for reconsideration was assigned to a different judge. In her supporting certification, defendant recounted the details of her physical maladies, without any supporting medical verification regarding her capabilities when communicating with the court, and the history of her applications for adjournments of the motion that led to the June 11 order. She stated she was "not fully recovered, but at this time can type for limited periods. As of May 22, 2014, it was extraordinarily difficult (if possible) to type and prepare a reply." Defendant took issue with what she viewed as the previous judge improperly determining that defendant should have been almost finished with her opposition when she requested an adjournment after being bitten by a dog, and that defendant "should have been recovered." Defendant accused the judge of "perceived judicial bias" and asked the judge to consider "all of the available evidence." In her reply to plaintiff's opposition, defendant stated:
Defendant attached a June 27, 2014 letter from her physical therapist that confirmed she was treated on June 25, 26, and 27 "to improve the functional limits of her right hand." There was no medical verification ever filed that she could not submit papers in any form to the court in opposition to the original motion. --------
[C]ontrary to [plaintiff's] argument, it is premature for me to address the sum and substance of the Court's June 11, 2014 order at this time. I am seeking reconsideration of the Court's denial of my request to grant me additional time to respond to the motion based on my medical emergencies.
On August 8, 2014, the court entered its order denying defendant's motion, without oral argument. In its order, the court stated its reasons for denying relief, citing the applicable court rule and case law governing reconsideration motions. Applying those principles, it concluded:
With the exception of stating that she disagrees with the order, however, [defendant] has failed to provide the basis for her motion, including either the extent to which she believes either that the court expressed its decision on a palpably incorrect or irrational basis or that the court failed to appreciate the significance of probative, competent evidence.
Defendant filed this appeal from the court's order.
We review the trial court's denial of a motion for reconsideration under an abuse of discretion standard. Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997). Reconsideration is "a matter within the sound discretion of the [c]ourt, to be exercised in the interest of justice." 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)).
Reconsideration is appropriate if "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." Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria, supra, 242 N.J. Super. at 401); see also Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002). Reconsideration is not appropriate as a vehicle to bring to the court's attention evidence that was available but not presented in connection with initial argument. Fusco, supra, 349 N.J. Super. at 463.
Applying these principles, we conclude defendant's argument regarding the denial of her reconsideration motion are without merit, and we affirm essentially for the reasons expressed by the motion judge. Like the motion judge, we do not discern any new, previously-unavailable evidence that defendant brought to the court's attention, or material previously supplied that the court overlooked. As to the original judge's failure to grant defendant a "stay," we simply note that defendant never pursued that relief in accordance with Rule 4:52-6 (providing for staying a proceeding when an appeal is not pending) or Rule 2:9-5(b) (regarding stays pending appeal).
To the extent defendant sought an adjournment rather than a stay, we conclude there was no abuse of the court's discretion. "Ordinarily, we do not interfere with a motion judge's denial of a request for an adjournment unless it appears that an injustice has been done." Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320, 343 (App. Div. 2000); see also State v. Hayes, 205 N.J. 522, 537 (2011) (observing in a criminal case that denial of a motion for adjournment is not subject to reversal "unless it appears from the record that the defendant suffered manifest wrong or injury"). In this case, it is undisputed that defendant never addressed the merits of plaintiff's motion in her requests for adjournments or in her reconsideration motion as part of an effort to show how the denial of her third adjournment request caused any "injustice." Also, her claims of being incapable of preparing opposition to plaintiff's motion were belied by her numerous submissions to both the Family Part and the Appellate Division, including her properly filed motions seeking extensions submitted while she claimed to be incapacitated, a claim that was unsupported by any competent medical evidence.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Defendant subsequently withdrew her appeal on August 12, 2014, because the original judge recused herself and that judge's alleged conflict was the basis for her appeal.