KELLY A. FERDINAND, N/K/A SPINO v. JOHN FERDINAND

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5182-04T25182-04T2

KELLY A. FERDINAND,

N/K/A SPINO,

Plaintiff-Appellant,

v.

JOHN FERDINAND,

Defendant-Respondent.

_______________________________________________________________

 

Submitted April 4, 2006 - Decided

Before Judges Hoens, R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FM-12-1564-01.

Kelly A. Ferdinand, n/k/a Spino, appellant pro se.

George G. Gussis, attorney for respondent.

PER CURIAM

This is the third appeal between these parties. The opinion deciding the first appeal was issued on December 4, 2003. The second was decided February 21, 2006. In this matter, plaintiff Kelly A. Ferdinand (now known as Spino) appeals from an order entered in the Chancery Division, dated May 13, 2005, denying without prejudice plaintiff's motion for reconsideration of certain portions of that court's March 23, 2005 order. The March 23, 2005 order addressed a variety of issues between plaintiff and defendant John Ferdinand.

The reasons given by the Chancery Judge for his refusal to consider, substantively, the motion filed by plaintiff are recited in the May 13, 2005 order filed by the court. The first two paragraphs of that order state:

1. Plaintiff's Notice of Motion for Reconsideration is denied without prejudice: Plaintiff failed to include a Notice to Litigants Page, as required by Rule 5:5-4(d); Plaintiff failed to certify that she made a good faith attempt to personally consult with the Defendant (or counsel), as set forth in Paragraph 13 of the Court Order dated March 23, 2005; Plaintiff failed to exchange child support guidelines within 15 days, as directed in Paragraph 12 of the Court Order dated March 23, 2005.

2. Defendant's Notice of Cross Motion is denied without prejudice: said motion is unrelated to the subject matter of the original motion, as required by Rule 1:6-3(b); Defendant also failed to certify that he made a good faith attempt to personally consult with the Plaintiff, as set forth in Paragraph 13 of the Court Order dated March 23, 2005; Defendant also failed to exchange child support guidelines within 15 days, as directed by Paragraph 12 of the Court Order dated March 23, 2005.

In her appellate brief, plaintiff asserts that the trial court failed, due to procedural technicalities, to reconsider the issues raised by her motion and that the court's application of the technicalities was not evenhanded. It will be noted that the court denied plaintiff's request for reconsideration because plaintiff had not adhered to the court's requirement that she certify that she had made a good faith attempt to personally consult with defendant or his counsel relative to the relief sought. Such a requirement is consistent with the authorization given by R. 1:6-2(b) to Family Part Judges to determine the mode and scheduling of the disposition of motions and R. 1:6-2(c) in respect of motions involving any aspect of discovery on the calendar.

Following the entry of the May 13, 2005 order denying the motions of both parties without prejudice, the motion judge placed on the record an explanation of his action. He stated, in pertinent part, the following:

[T]he parties have continuously come to court filing motion after motion with no end to this litigation in sight. And, in fact, within the past month I let them use my law clerk for approximately two hours to mediate their differences. Obviously, we can't do that in all cases, but I, again, gave them the service of my law clerk for some two hours to try and bring this matter to conclusion. And still, one or both parties are insistent in litigating this matter with no end in sight.

Finally, . . . in a prior order dated March 23rd, 2005, I put in the order that before any further applications are made by either side they had an obligation to personally consult and attempt to resolve their differences. There was no attempt by me in any way to close the courthouse door to either of them, but clearly after a point in time I think I have a right, consistent with Rule 1:6-2, certainly on discovery matters, to ask people to consult before they continue to burden the system and each other.

. . . .

Both [parties'] motions in this case were denied for the reasons set forth in my May 13th order and I listed all the reasons in there, all the defects. [Plaintiff] did not comply with Rule 5:5-4(d). She did not comply with my order on March 23rd, nor did she exchange child support guidelines as directed in my order. So she did not comply with the rules or my order in at least three respects.

The defendant's cross motion was similarly denied. It was unrelated to the original motion, contrary to Rule 1:6-3(b). He did not personally consult, consistent with my order. And he did not comply with my order to exchange child support guidelines. Therefore, I've denied the motions.

And as I've just indicated, these parties, besides if they have an inclination or event to continue this litigation to the expense of the other, then this Court will be here to hear it and so be it, but they don't have the right to ignore clear unambiguous court orders and expect relief to be granted.

Again, both sides are in violation of the rules, 5:5-4(d) on [plaintiff's] side, 1:6-3(b) on [defendant's] side. Both are in violation of my March 23, 2005 order in two respects, not consulting and not exchanging child support guidelines. Those are the reasons for my May 13th, 2005 order and that concludes this matter.

We are satisfied that the motion judge acted evenhandedly and in the sound exercise of discretion. The judge is charged with responsibility to entertain and resolve legitimate disputes between the parties, however, courts have inherent power to mandate that the parties engage in a good faith effort to resolve disputes before expending the resources of the court and of adversaries. See R. 1:6-2(c). See also State v. Abbati, 99 N.J. 418, 427-28 (1985) (recognizing the inherent powers of the court to fashion needed and appropriate remedies). Where, in the opinion of the court, the parties had failed to engage in such good faith consultation and to certify the nature of their efforts, especially where the issues raised appear to be repetitive or insubstantial, the court is well justified in denying the relief requested, without prejudice.

 
Because of the parties' non-compliance with the court's order and their failure to pursue with the trial court issues not otherwise resolved by the two earlier appeals, we affirm the order dated May 13, 2005, and we, therefore, see no reason to discuss plaintiff's challenges to the order dated March 23, 2005.

Affirmed.

(continued)

(continued)

5

A-5182-04T2

October 25, 2006