MOTIONS FOR RECONSIDERATION IN NEW JERSEY
WHAT CAN I DO WHEN THE JUDGE GETS IT WRONG?
When you disagree with a Court Order, you have five basic options: (1) request correction of a clerical error; (2) file a motion for reconsideration; (3) file an appeal; (4) file a motion to vacate; and (5) file a motion to modify based on “changed circumstances,” which applies only to custody and support orders.
CLERICAL ERRORS. Correction of a clerical error can occur at any time and does not necessarily require a motion. Clerical errors include, for example, simple mathematical mistakes. But be warned, there is often significant disagreement over whether an error was merely clerical or was actually a substantive mistake. You can read more about correcting clerical errors here: [Guide to Clerrical Errors.]
RECONSIDERATION. A motion for reconsideration must generally be filed within twenty days of receiving a final Court Order. However, when seeking reconsideration of a non-final Court Order (i.e., “interlocutory” or “pendente lite”), no time limit applies and the burden is much lower.
This section of the Divorce Guide discusses motions for reconsideration.
APPEAL. An appeal of a final Court Order must generally be filed within 45 days of the date on which the Order was entered. However, when appealing a non-final Court Order (i.e., “interlocutory” or “pendente lite”), you must generally file that appeal within 20 days of the date on which you received the Order. There are exceptions and circumstances in which these deadlines can be extended. You can read more about appeals here: [Guide to Appeals.]
MOTION TO VACATE. Even after those deadlines expire, you have another option: file a motion to vacate the Order. There are several reasons listed in the Rules of Court that might warrant vacating a Court Order. Depending on the reason for which you are asking to vacate the Court Order, you are required to file your motion within either one year of the Order’s entry, within a “reasonable time,” or at any time. You can read more about motions to vacate here: [Guide to Motions to Vacate.]
CUSTODY/SUPPORT ORDERS. The fourth option applies only to custody and support orders. Those kinds of orders are modifiable at any time on a showing of “changed circumstances.” You can learn more about how to modify custody and support orders here: [Guide to Modifying Custody/Support Orders.] Additionally, you can read more about the law governing custody here: [Guide to Custody.] You can read more about the law governing child support here: [Guide to Child Support.] You can read more about the law governing alimony (otherwise known as spousal support) here: [Guide to Alimony.]
All the requests above, except appeals and correction of clerical errors, are made by filing a motion. You can find out how to file a motion here: [Guide to Filing Motions.]
WHAT IS A MOTION FOR RECONSIDERATION?
If judges were perfect, we wouldn’t need a court of appeals. Unfortunately for many going through the divorce process, judges can and often do get issues wrong. Fortunately, however, there is a sliver of hope: the motion for reconsideration. While it can be difficult to get a judge to think again on a decision he or she made just a short while beforehand, it is often possible with the right combination of factual and legal knowledge.
To obtain reconsideration of an Order or Judgment, you need to file a motion with the Court. For more information on how to file a motion in a New Jersey divorce, please refer to [SDFL’s Guide to Filing Motions in New Jersey.] That section of the SDFL Divorce Guide describes the process of filing a motion, whether for reconsideration or for other relief. This section of the SDFL Divorce Guide refers to the legal standard that the Court will use to decide whether to grant your motion (after it has been properly filed).
In general, a motion for reconsideration is exactly what it sounds like; you file such a motion when you want the judge to take a second look at a decision you feel was incorrect. A motion for reconsideration will not, however, be granted simply because you disagree with the outcome. There are legal standards governing reconsideration of pendente lite (which is a Latin term meaning “during the proceeding”) orders and final orders. The standards are very different, so I will address one and then the other.
WHAT IS THE DIFFERENCE BETWEEN AN INTERLOCUTORY ORDER AND A FINAL ORDER?
“[A]ny order or form of decision which adjudicates fewer than all the claims as to all the parties shall not terminate the action as to any of the claims, and it shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice.” [R. 4:42-2.]
An interlocutory order by its very nature is temporary and often entered based on incomplete or conflicting evidence. After all, the Court generally has not taken testimony at trial, allowed cross-examination, heard expert opinions, or had the benefit of complete disclosure of the relevant facts obtained during the discovery phase of litigation.
A final order/judgment does resolve all issue as to all parties.
“It is firmly settled that ‘final judgment,’ as used in the rules, means final judgment or final disposition of the case not only as to all issues but as to all parties.” [Thatcher v. Jerry O’Mahony, Inc., 37 N.J. Super. 139, 142-143 (App. Div. 1955).]
To constitute a final judgment, the order generally must “dispose of all claims against all parties.” [S.N. Golden Estates, Inc. v. Cont’l Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998).]
Generally, in a divorce proceeding, every order is interlocutory until a final judgment of divorce is entered. When the order results from a post-judgment motion, however, it is generally final. But a post-judgment order may be interlocutory depending on the circumstances. For example, if further proceedings are scheduled by a post-judgment order (e.g., a plenary hearing), it is probably interlocutory.
The distinction between an interlocutory order and a final order can be quite tricky in the post-judgment context, and I strongly recommend consulting an experienced attorney.
RECONSIDERATION OF FINAL ORDERS
Notably, when sent via regular mail, an order is deemed to have been served on the date it was sent rather than the date it was received. [R. 1:5-4(b).] Presumably to compensate for the delay, “[w]hen service of a notice or paper is made by ordinary mail, and a rule or court order allows the party served a period of time after the service thereof within which to take some action, 3 days shall be added to the period.” [R. 1:3-3.]
The time limit on a motion for reconsideration of a final order cannot be relaxed by the Court. [R. 1:3-4(c).]
“Reconsideration is a matter within the sound discretion of the Court, to be exercised in the interest of justice.” [D’Atria v. D’Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990).]
“Reconsideration cannot be used to expand the record and reargue a motion. Reconsideration is only to point out ‘the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred.’ A motion for reconsideration is designed to seek review of an order based on the evidence before the court on the initial motion, not to serve as a vehicle to introduce new evidence in order to cure an inadequacy in the motion record.” [Capital Finance Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 2008).]
“Motions for reconsideration are applicable only when the court’s order is based on plainly incorrect reasoning, when the court failed to consider evidence, or there is good reason for it to consider new information on an issue decided.” [Cummings v. Bahr, 295 N.J. Super. 374, 384-385 (App. Div. 1996).]
Stated otherwise, “[r]econsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significant of probative, competent evidence.” [D’Atria v. D’Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990).]
The movant for reconsideration bears the burden of proof. [Michel v. Michel, 210 N.J. Super. 218, 224-25 (Ch. Div. 1985).]
A motion for reconsideration may be properly denied if based on unraised facts known to the movant prior to entry of Judgment. [Del Vecchio v. Hemberger, 388 N.J. Super. 179, 188-90 (App. Div. 2006).]
A litigant should not seek reconsideration merely because of dissatisfaction with a decision of the Court or a desire to reargue a motion. [Palombi v. Palombi, 414 N.J. Super. 274 (App. Div. 2010).]
“Motion practice must come to an end at some point, and if repetitive bites at the apple are allowed, the core will swiftly sour. Thus, the Court must be sensitive and scrupulous in its analysis of the issues in a motion for reconsideration.” [D’Atria v. D’Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990).]
MODIFICATION / RECONSIDERATION OF PENDENTE LITE ORDERS
Court Rule 4:42-2 states, in relevant part, the following: “[A]ny order or form of decision which adjudicates fewer than all the claims as to all the parties shall not terminate the action as to any of the claims, and it shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice.” [R. 4:42-2.]
Further, Court Rule 4:42-2 states that “[t]o the extent possible, application for reconsideration shall be made to the trial judge who entered the order.” [R. 4:42-2.] Nevertheless, while it would be preferable, the practical reality is that many Courts in the Family Part will not strictly require a motion for reconsideration to be heard by the judge who entered the earlier order. Cases are often reassigned, and judges move to other areas (e.g., the Civil Division or the Criminal Division).
The distinction between reconsideration of interlocutory and final orders, although often overlooked by judges, has been recognized and endorsed by the New Jersey Supreme Court. In fact, the New Jersey Court spoke at length on the difference in [Lombardi v. Masso, 207 N.J. 517 (2011).] The case is by far the most important recent Supreme Court decision on the issue, and it is certainly worth reading. The case states in part the following:
“It is well established that the trial court has the inherent power to be exercised in its sound discretion, to review, revise, reconsider and modify its interlocutory orders at any time prior to the entry of final judgment. That power, which is rooted in the common law is broadly codified in Rule 4:42-2, which provides expansively that ‘any order… which adjudicates fewer than all the claims as to all the parties shall not terminate the action as to any of the claims, and it shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice.’ That Rule, like the jurisprudence on which it is based, sets forth no restrictions on the exercise of the power to revise an interlocutory order.” [Lombardi v. Masso, 207 N.J. 517 (2011) (emphasis in original, citations omitted).]
“That special power afforded to judges over their interlocutory orders derives from the fact that cases continue to develop after orders have been entered and that judges likewise continue to think about them.” [Lombardi v. Masso, 207 N.J. 517 (2011).]
For example, the twenty-day time limit imposed under Court Rule 4:49-2 on motions for reconsideration of final orders is clearly inapplicable to reconsideration of interlocutory orders. [Lombardi v. Masso, 207 N.J. 517, 534 (2011).] In fact, interlocutory orders may be reviewed “at any time.” [R. 4:42-2.]
Another critical distinction is that the Court is not restricted to the original record when addressing motion for reconsideration of interlocutory orders. So, while a motion for reconsideration of a final order may be properly denied if the evidence upon which you are relying was not given to the Court the first time around, a motion for reconsideration of an interlocutory order can be based on new evidence.
The Supreme Court held as follows: “Plaintiff argues that the judge, in fact, confined himself to the original record; defendants say he did not. Although we are not sure whether the judge cabined off the original record, we need not resolve that conflict because there is nothing in our law that would require him to do so. … We presume that judges ordinarily will not be required to second guess themselves because most attorneys will advance the best case possible the first time around, thus obviating later theoretical or evidential surprises. But where that does not occur, for whatever reason, and the judge later sees or hears something that convinces him that a prior ruling is not consonant with the interests of justice, he is not required to sit idly by and permit injustice to prevail.” [Lombardi v. Masso, 207 N.J. 517, 536-37 (2011).]
While the Court’s power is expansive, it is not limitless. The discretion to reconsider an earlier order should be exercised “only for good cause shown and in the service of the ultimate goal of substantial justice[.]” [Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 263-64 (App. Div. 1987).]
Nevertheless, the Court “has complete power over its interlocutory orders and may revise them when it would be consonant with the interests of justice to do so.” [Ford v. Weisman, 188 N.J. Super. 614, 619 (App. Div. 1983).]
Andrew M. Shaw, Esq. is the author of this New Jersey Divorce Guide and the founder of Shaw Divorce & Family Law LLC in Somerville, New Jersey.
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