P.T. v. A.T.

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE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-3932-16T2

P.T.,

        Plaintiff-Respondent,

v.

A.T.,

     Defendant-Appellant.
___________________________

              Argued April 10, 2018 – Decided May 16, 2018

              Before Judges Gilson and Mayer.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Cumberland
              County, Docket No. FM-06-0217-09.

              A.T., appellant, argued the cause pro se.

              Rebecca J. Bertram argued the cause for
              respondent   (Bertram    Law   Office,   LLC,
              attorneys; Rebecca J. Bertram, on the brief).

PER CURIAM

        In this post-judgment divorce matter, defendant A.T., the

father, appeals from two orders entered on March 17, 2017.                         One

order denied his motion to reconsider prior orders denying his

request to sanction plaintiff and awarding plaintiff attorney's
fees.       The   second   order   temporarily     suspended    defendant's

parenting    time   and    directed   him   to   undergo   a   psychological

evaluation.       We affirm the order denying reconsideration and

awarding attorney's fees because we discern no abuse of discretion

in the entry of that order.        We dismiss the appeal from the order

temporarily suspending defendant's parenting time as an appeal

from an interlocutory order.

                                      I.

     The parties were divorced in 2009.            They have one child, a

daughter born in December 2006.1            Following their divorce, the

parties have filed numerous motions concerning parenting time and

parental issues.      Plaintiff P.T., the mother, is the parent of

primary residential custody.          The majority of the post-judgment

divorce disputes between the parties have centered on defendant's

parenting time.

     Since March 2011, the same Family Part judge has addressed

the parties' various motions.         Between March 2011 and March 2017,

that judge has held at least fourteen hearings or oral arguments

and has entered eighteen separate orders.          The judge has patiently


1
  Defendant also has a son from a relationship with another woman.
In his briefs and papers, defendant referenced rulings made by the
Pennsylvania court concerning his parenting time with his son. We
do not consider those references because they were not part of the
record in this matter. R. 2:5-4(a); Cipala v. Lincoln Tech. Inst.,

179 N.J. 45, 52 (2004).

                                       2                             A-3932-16T2
and repeatedly encouraged the parties to work out their parenting

differences and to focus on the best interests of their daughter.

The   judge    also   has   noted   that   the   parents   have   failed    to

effectively communicate, which has resulted in repeated reliance

on the court to work out what normally would be relatively simple

parenting differences.       In that regard, the Family judge observed

              [defendant] is very difficult to deal with
              because every time a concession is made to him
              "it is not enough for him" and he argues for
              more.   Likewise, the court senses there is
              some resistance by [plaintiff] to the court's
              orders, primarily because the orders require
              certain actions by her and [plaintiff] is
              afraid to do anything in excess of the
              specific words of the court's orders due to
              the previous observation as to [defendant].
              The problem is the court cannot clairvoyantly
              anticipate   each   and   every   nuance   and
              determination that is going to develop from
              the court's previous orders, and sadly each
              unanticipated nuance whereby the court does
              not specifically state exactly what each party
              has to do results in a motion such as here –
              both sides alleging the other side is
              violating the order because to follow the
              order each side has to agree to behave in a
              manner not specifically spelled out or
              otherwise stated in the last court order
              . . . . The parties are urged to cooperate
              without    court    involvement    with    the
              understanding by [defendant] that some small
              concession by [plaintiff] means that he can
              ask for more concessions and that [plaintiff]
              recognize that to make small concessions does
              not mean she has to make more and more
              concessions as historically have been demanded
              by [defendant] each time a concession is
              granted.


                                      3                              A-3932-16T2
     This appeal involves issues that developed in late 2016 and

early 2017.       In October 2016, defendant filed an application to

"restore"    or    make   up   parenting   time,   sanction   plaintiff   for

interfering with his parenting time, and other relief. With regard

to parenting time, defendant alleged that plaintiff was violating

prior court orders by scheduling the daughter for dance class

during his parenting time, not allowing his daily phone call with

the daughter, not informing him of the daughter's doctor visits,

and not allowing him make-up parenting time.

     The Family Part heard oral arguments on that application on

December 9, 2016, and, on the same day, entered an order denying

defendant's requests to restore or add additional parenting time

and sanction plaintiff.         The court also awarded plaintiff $985 in

attorney's fees.      The court explained the reasons for its rulings

on the record and in its order. With regard to defendant's request

for sanctions, the court found that plaintiff had not violated the

court's prior orders and had not withheld medical information

about the daughter.        Thus, the court found no basis to sanction

plaintiff.    The court again urged the parties to cooperate and

communicate about parenting issues.

     On January 3, 2017, the Family Part amended the December 9,

2016 order.       The court later explained that



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           the sole change from the December 9, 2016
           [o]rder to the January 3, 2017 [o]rder was the
           addition of a small point of clarification to
           a single sentence at the end of Paragraph 1.
           The original sentence read, "DAD can take the
           child to an event if scheduled during his
           weekday time."    The revised sentence read,
           "DAD can take the child to an event, if an
           activity the child is already involved in
           schedules an event during his weekday time."

     In   late   January    2017,   defendant   submitted   a    motion   for

reconsideration of the January 3, 2017 order.2            The Family Part

denied the motion in an order entered on March 17, 2017.                  The

order explained that the motion was untimely and lacked merit.

Thus, the court did not grant oral argument.         The court also "sua

sponte" awarded plaintiff $820 in attorney's fees incurred in

opposing the motion for reconsideration.

     In    February        2017,    while   defendant's         motion    for

reconsideration was pending, plaintiff filed an application to

suspend defendant's parenting time alleging that the daughter

reported she had seen defendant watching pornography during his

parenting time.    On February 21, 2017, the court granted an order

to show cause to address that allegation and temporarily suspended

defendant's parenting time pending the return date.              Thereafter,




2
  Defendant apparently mailed the motion on January 21, 2017. The
motion was initially returned to defendant because of a defect.
Defendant then properly filed the motion on February 17, 2017.

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on March 17, 2017, the court held a hearing on the application to

suspend defendant's parenting time.

      At the hearing, the court heard testimony from one witness:

an employee of the New Jersey Division of Child Protection and

Permanency     (Division).       The         Division   received   a     referral

concerning what the child had observed and opened an investigation.

The Division worker explained, however, that because defendant

lived   in    Pennsylvania,    and       because     the   court   had    already

temporarily suspended his parenting time, the Division had not yet

interviewed    defendant     concerning        the   allegation.    The    court,

therefore,    noted   that    the    record      reflected    consistent,       but

uncorroborated statements by the child that she saw defendant

watching pornography.        Given the lack of evidence corroborating

the daughter's statements, the court did not find that defendant

had watched pornography while the child was present. Nevertheless,

concerned with the best interests of the child, the court continued

the   "temporary   suspension"      of    defendant's      parenting     time   and

directed that defendant undergo a psychological evaluation.                     The

court expressly stated that once it received the psychological

report, the court would conduct an additional hearing and "revisit"

the suspension of defendant's parenting time.

      Accordingly, on March 17, 2017, the court entered an order

that continued the suspension of defendant's parenting time "until

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such time as [defendant] can complete a satisfactory psychological

evaluation that addresses the concerns raised on the record."     The

court also directed both defendant and plaintiff to cooperate with

the psychologist, and to authorize the psychologist to meet with

both plaintiff and the daughter if the psychologist felt that such

meetings were necessary.     Finally, the court allowed defendant to

have daily telephone communications with his daughter.

                                  II.

     Defendant appeals from both orders entered on March 17, 2017.

We will address each order separately.

  1. The Order Denying Reconsideration

     We review orders concerning reconsideration motions under an

abuse of discretion standard.    Palombi v. Palombi, 
414 N.J. Super.
 274, 288 (App. Div. 2010).    Similarly, we review orders concerning

sanctions for violations of custody and parenting time orders for

an abuse of discretion.    Milne v. Goldenberg, 
428 N.J. Super. 184,

198 (App. Div. 2012).

     The standard governing enforcement of custody and parenting

time orders is clear.     Upon "finding that a party has violated an

order respecting custody or parenting time," a Family Part judge

has discretion to order a remedy authorized by Rule 1:10-3 and any

of the remedies set forth in paragraph (a) of Rule 5:3-7.     See R.

5:3-7(a); see also Milne, 
428 N.J. Super. at 198.     Imposition of

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sanctions for a violation of a court order requires a showing that

non-compliance was inexcusable, which means that the party had the

ability to comply, but did not.        Milne, 
428 N.J. Super at 198-99;

Saltzman v. Saltzman, 
290 N.J. Super. 117, 125 (App. Div. 1996).

     The remedies available for violations of orders are intended

to achieve compliance, not to condemn or punish the offending

parent.   That principle is consistent with the concept that on

every   motion   involving   custody    or   parenting   time,   the   best

interests of the child is the primary consideration.              V.C. v.

M.J.B., 
163 N.J. 200, 227-28 (2000); Kinsella v. Kinsella, 
150 N.J. 276, 317 (1997).    The best interests standard focuses on the

"safety, happiness, physical, mental and moral welfare of the

child."   Fantony v. Fantony, 
21 N.J. 525, 536 (1956); see also


N.J.S.A. 9:2-4(c) (setting forth a non-exhaustive list of relevant

factors to be considered in evaluating the best interests of a

child).

     Here, the Family Part judge denied defendant's motion for

reconsideration on two grounds.        First, the court found that the

motion was filed out of time.      Second, the court found that the

motion lacked merit.

     Rule 4:49-2 requires a motion for reconsideration to be filed

not later than twenty days after service of the order sought to

be reconsidered.    The judge here noted that defendant was really

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seeking reconsideration of the substantive rulings in the December

9, 2016 order.    Consequently, the court found that the motion was

filed well beyond the twenty-day period.          The court also reasoned

that even if it considered the motion relative to the January 3,

2017 order, the motion was untimely since defendant's initial

motion was defective and was only properly filed on February 21,

2017. We discern no abuse of discretion in the Family Part judge's

reasoning.

     On the merits, the Family Part judge found that plaintiff had

not violated any of the custody or parenting time orders and,

thus, no sanction was warranted.           That finding is well-supported

by the record and we also discern no abuse of discretion.

     Defendant argues that plaintiff admitted to violating prior

court orders.      Defendant made that same contention before the

Family judge, but the judge expressly found that plaintiff made

no such admissions.       Indeed, the judge noted that plaintiff denied

any violations. We also find no abuse of discretion in the court's

substantive      ruling     in     denying    defendant's   motion     for

reconsideration.

     Having found that the motion for reconsideration was served

out of time and that it lacked merit, the court awarded plaintiff

$820 in attorney's fees.         The court evaluated the fee award under

the governing rules and found that the fees were reasonable.

                                       9                          A-3932-16T2
Indeed, the court found that defendant "may have filed his motion

[for reconsideration] with 'unclean hands'" because he had not

paid the prior attorney's fee award before filing the motion for

reconsideration.    We discern no abuse of discretion in the court's

award of attorney's fees.      See R. 5:3-5(c).

     Finally, defendant objects to the denial of his motion for

reconsideration     without    oral        argument.    A    party   is   not

automatically     entitled    to   oral      argument   on   a   motion   for

reconsideration. Here, the Family judge explained that it declined

to hear oral argument because defendant's motion was "entirely

without merit" and "[t]here [was] nothing more to argue."            We find

no error in the court's denial of defendant's motion without oral

argument.    See Raspantini v. Arocho, 
364 N.J. Super. 528, 531-32

(App. Div. 2003) (stating that a party's motion for reconsideration

may properly be decided without oral argument if the motion does

not meet the applicable test for relief, and the trial court

provides its reasons for denying oral argument).

  2. The Order Temporarily Suspending Defendant's Parenting Time

     Parties have a right to appeal from final orders or judgments.

R. 2:2-3.      In post-judgment divorce matters, it is sometimes

difficult to discern when an order is final for purposes of an

appeal.     If, however, the order contemplates further proceedings

or directs further actions, the order is not a final order with

                                      10                             A-3932-16T2
an automatic right to appeal. See Pressler & Verniero, Current

N.J. Court Rules, cmt. 2.2.2 on R. 2:2-3 (2018) ("A trial court

order which retains jurisdiction is by definition not final.").

In such circumstances, a party must seek leave to appeal such an

interlocutory order.     R. 2:2-4.

     Here, defendant did not seek leave to appeal.            Instead, he

filed a notice of appeal as if the March 17, 2017 order continuing

the temporary suspension of his parenting time was a final order.

As discussed, that order contemplated further proceedings in the

Family Part after defendant completed a psychological evaluation.

Because we have determined that the order was not a final order,

but rather an interlocutory order, we dismiss the appeal from the

March   17,   2017   order   that   temporarily   suspended   defendant's

parenting time.3

     At oral argument, we were informed that a psychological

evaluation has been completed.           Accordingly, we direct that the

Family Part hold a follow-up hearing concerning the temporary

suspension of defendant's parenting time within thirty days of the

date of this opinion.         We also direct that any future order


3
  At oral argument, we were informed that the court added
additional reasons for its ruling suspending defendant's parenting
time on the record on March 17, 2017. Those reasons were added
after counsel and the parties had been directed to leave the
courtroom. Neither party, however, provided us with a transcript
that included those additional reasons.

                                    11                            A-3932-16T2
concerning   defendant's     parenting     time   expressly   state    if    the

Family Part considers that order a final determination on the

issue addressed in the order.

    The order of March 17, 2017 denying defendant's motion for

reconsideration     and   awarding    plaintiff      attorney's       fees    is

affirmed.     The   appeal    from   the    March   17,   2017   order       that

temporarily suspended defendant's parenting time is dismissed.

Any stay entered in connection with the March 17, 2017 order is

vacated.

    Affirmed in part, dismissed in part, and remanded.             We do not

retain jurisdiction.




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