NOT FOR PUBLICATION WITHOUT THE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-0911-18T1
SHARI L. POLLAK,
Plaintiff-Respondent,
v.
DAVID KALEN,
Defendant-Appellant.
_____________________________
Submitted November 4, 2019 – Decided January 8, 2020
Before Judges Messano and Vernoia.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County,
Docket No. FM-18-0469-06.
David Kalen, appellant pro se.
Jill Lisa Gropper, attorney for respondent.
PER CURIAM
Defendant David Kalen and plaintiff Shari L. Pollak were married in 1991
and together had three children, who were born in 1993, 1996 and 2000.
Plaintiff filed a divorce complaint in 2005, and, following trial, the court entered
an amended final judgment of divorce on December 18, 2008. A December
2016 consent order modified the parties' obligations, specifically with respect to
defendant's child support and arrears, and the parties' respective percentage
obligations for the children's unreimbursed medical expenses. 1
Motion practice continued unabated, however, leading to Judge Kimarie
Rahill's February 2018 order that addressed plaintiff's motion to enforce
litigant's rights and defendant's cross-motion which sought, among other things,
to schedule a plenary hearing, to declare plaintiff wholly responsible for the
children's medical costs, and to compel reunification therapy. Plaintiff moved
for reconsideration, and defendant responded, incorporating, through counsel's
certification, essentially the same requests for relief sought in the earlier cross-
motion. Defendant did not file a cross-motion. After considering oral argument,
Judge Rahill entered an order on June 5, 2018. The judge granted in part and
denied in part plaintiff's request for reconsideration, stating her reasons in a
comprehensive written opinion.
On July 9, 2018, defendant filed a motion seeking reconsideration of both
the February and June orders. Defendant requested that the court vacate the
1
The actual order is not in the record.
A-0911-18T1
2
June order; require "financial disclosure to recalculate child support based upon
emancipation" of one of the children; schedule the matter for a plenary hearing;
and provide for a "conference relating to anticipated motion practice."
The court's August 10, 2018 order disposed of defendant's motion for
reconsideration. Judge Rahill denied defendant's requests for counsel fees, a
plenary hearing and a conference. However, she only denied in part defendant's
request for financial disclosure by plaintiff in order to recalculate child support
obligations based on the parties' son's emancipation. The judge ordered an
exchange of updated Case Information Statements within fourteen days "so that
[the] child support amount can be recalculated in view of . . . emancipation as
of January 1, 2018."
In her written statement of reasons, the judge appropriately set forth the
standard for reconsideration. She first noted that the June 2018 order was the
result of plaintiff's motion for reconsideration, and, while defendant opposed the
motion and his counsel orally argued in opposition, defendant never filed a
cross-motion seeking relief. To the extent defendant sought reconsideration of
the February order, it was, of course, time-barred. See R. 4:49-2 (requiring the
motion for reconsideration be served within twenty days).
A-0911-18T1
3
The judge concluded that defendant's motion for reconsideration "d[id]
not provide any new facts that were not previously known and . . . that were not
previously raised as a response to [p]laintiff's . . . [m]otion for
[r]econsideration." She then addressed each of defendant's asserted reasons
supporting reconsideration and explained in detail why the relief was
unwarranted.
Defendant filed this appeal on September 25, 2018, after we granted him
leave to file as within time. Our order limited the appeal only to consideration
of the August 10, 2018 order denying his motion for reconsideration.
Defendant argues the judge gave no more than a cursory review of his
arguments and failed to order a plenary hearing on allegations, first raised
months earlier, that plaintiff never consulted him about the children's medical
and other expenses.2 He further contends that contrary to N.J.S.A. 9:2-4,
plaintiff failed to properly consult him about child care expenses, despite the
parties sharing joint custody, and that she fraudulently misled defendant prior to
entering into the consent order.
2
Defendant also asserts the judge should not have decided the motion without
oral argument. However, his motion for reconsideration specifically "waived
[argument] unless scheduled by the [c]ourt." The judge explained why sh e did
not order oral argument.
A-0911-18T1
4
We have made it clear that
[r]econsideration itself is "a matter within the sound
discretion of the [c]ourt, to be exercised in the interest
of justice[.]" It is not appropriate merely because a
litigant is dissatisfied with a decision of the court or
wishes to reargue a motion, but
should be utilized only for those cases
which fall into that narrow corridor in
which either 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.
[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)).]
"[T]he magnitude of the error cited must be a game-changer for reconsideration
to be appropriate." Id. at 289.
We in turn review the denial of the motion for reconsideration and decide
whether the trial court abused its discretion. Cummings v. Bahr, 295 N.J. Super.
374, 389 (App. Div. 1996). 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 Cty. Prosecutor,
171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration &
Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
A-0911-18T1
5
We agree substantially with Judge Rahill's reasoning. Defendant failed to
demonstrate the court's earlier June 2018 order was "based upon a palpably
incorrect or irrational basis, or . . . [that Judge Rahill] either did not consider, or
failed to appreciate the significance of probative, competent evidence."
Palombi, 414 N.J. Super. at 288. Defendant's reconsideration motion was
nothing more than the proverbial second bite of the apple.
Affirmed.
A-0911-18T1
6