NEWTON G. MOODIE VS. CAROLYN RICHARDS MOODIE(FM-07-1032-09, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0558-15T1

NEWTON G. MOODIE,

Plaintiff-Respondent,

v.

CAROLYN RICHARDS MOODIE,

Defendant-Appellant.

________________________________________________________________

Submitted February 28, 2017 – Decided August 1, 2017

Before Judges Espinosa and Guadagno.

On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Essex
County, Docket No. FM-07-1032-09.

Kiernan & Campbell, attorneys for appellant
(Jean R. Campbell, on the brief).

Newton G. Moodie, respondent pro se.

PER CURIAM

Defendant appeals from orders that terminated plaintiff's

obligation to pay her alimony and maintain life insurance for her

benefit and denied her motion for reconsideration. We affirm.
 I.

On June 21, 2010, plaintiff and defendant were divorced and

entered into a matrimonial settlement agreement (MSA) that was

incorporated into their final judgment of divorce.

According to the MSA, plaintiff was earning $55,000 from his

employment as a teacher and defendant was earning $12,000 as a

substitute teacher. The parties agreed that, beginning on June

23, 2010, plaintiff would pay $965 per month in alimony to

defendant for the first twenty-four months, and $1,000 every month

after that until defendant died or remarried. Both parties were

required to exchange their end-of-year pay stubs, tax returns, and

all other proofs of income annually.

The MSA also required defendant to provide plaintiff proof

"of her efforts to find new employment and her job search" and

no later then [sic] every six months,
commencing November 1, 2010, proof of her good
faith effort to utilize her recently earned
M.B.A. Degree to obtain higher paying
employment. Said proof shall consist of a
listing of jobs applied for and persons
contacted. [Plaintiff] may move before the
Court to seek relief in the form of reduction
or termination of alimony, in the event
[defendant] fails to comply and/or make a good
faith effort to obtain higher paying
employment.

The MSA is silent on what "higher paying employment" means

or what would happen if she obtained such employment.

2 A-0558-15T1
 In 2011, plaintiff made application to decrease his alimony

obligations. The trial judge denied his request but required

defendant to provide plaintiff "with a list of job applications

as required under the parties' [M]SA" and "proof in writing of

interviews that she has every two weeks until she is employed full

time."

In August 2013, plaintiff filed an application to terminate

alimony, claiming defendant violated the MSA by "fail[ing] to seek

meaningful employment" and her "job search [was] inadequate and

restrictive with a focus on managerial and sales/marketing

positions, ignoring other potential areas." Plaintiff also

claimed his alimony obligation was "burdensome and cause[d]

significant financial, emotional and physical challenges."

Defendant opposed plaintiff's motion and cross-moved, asserting

she was compliant with the MSA.

By order dated October 4, 2013, the trial judge directed

defendant to provide plaintiff and the court "a list of job

searches, interviews and who [she] has spoken to about seeking

employment" within two weeks of the order. Both parties were

ordered to provide each other and the court their tax returns for

each year since the divorce.

On November 1, 2013, the trial judge held a conference with

the parties, with defendant appearing by telephone. The judge

3 A-0558-15T1
observed that defendant's response to his prior order reflected

that "every two weeks or so, there is some kind of job contact"

and stated, "that's not the kind of diligence that the Court

expects to see." The judge advised he would "need to impute income

to [defendant] based on what [he] think[s] [her] earning power

is." Plaintiff asked the court to give defendant a year in which

to make the effort required by the court. The judge welcomed the

suggestion and emphasized to defendant,

[I]t's very important that you understand the
following. You need to, at least in my eyes
and I think in [plaintiff's] eyes as well,
step up your efforts to find a job. . . .
Second of all . . . you need to look in places
like the school districts since you've been
working as a substitute teacher.

The trial judge said he would enter an order that required

defendant to make an average of five job searches a week, amounting

to 260 job searches over the course of the year, representing

"real diligence." The judge also advised defendant that to show

she is "looking in good faith," she had to expand her search to

include jobs that "may be somewhat below [her] qualifications."

The order stated,

Defendant shall perform at least 5 job
searches per week. Once per month, Defendant
shall provide Plaintiff with a list of the
name of the employer with whom she has spoken,
the job for which she applied, the date of the
application and the contacts with whom she has
corresponded while seeking employment. . . .

4 A-0558-15T1
 Defendant shall expand her job search to
employment which is below her qualifications
as well as jobs for which she is qualified.

In October 2014, plaintiff filed an application to terminate

his alimony and life insurance obligations to defendant, claiming

defendant failed to find a higher-paying job within the one-year

period prescribed by the November 2013 order and that her failure

"to meaningfully seek adequate employment" violated the MSA.

On December 2, 2014, the trial judge conducted a conference

with the parties. Defendant still had not secured full-time

employment. The trial judge advised defendant that the job search

lists she submitted were missing information required by the

November 2013 order. He scheduled a plenary hearing "to address

whether to impute income to the Defendant, whether the Defendant

looked for a job in good faith and the possible modification of

alimony and life insurance." The order directed defendant to

"continue to diligently look for a job and provide the Plaintiff

with proof of 5 job searches per week" and "provide documentation

to the [Plaintiff] and the Court regarding how [she] is paying

living expenses." Both parties were ordered to provide each other

and the court their last tax return and last three paystubs.

The plenary hearing was conducted by a different judge in

June 2015.

Plaintiff testified he received defendant's job search list

5 A-0558-15T1
every month, but because the list did not contain the positions

she applied for, he was unable to verify her application efforts.

Plaintiff and defendant co-owned a pharmacy in Jamaica, where

defendant had previously worked as a licensed pharmacist.

Plaintiff testified that pharmacists in Jamaica earn approximately

$50,000 to $60,000 and suggested plaintiff could split her time

between living in Florida and working part-time as a pharmacist

in Jamaica.

Defendant testified her license as a pharmacist in Jamaica

expired after she left in 2002. She stated she does not have a

pharmacy license in the United States and had applied for

pharmaceutical sales jobs without success.

Defendant received an M.B.A. from Nova Southeastern

University (Nova) in 2006, but remained unemployed until she began

substitute teaching in January 2009, shortly after she obtained a

green card and a Florida substitute teaching license. As a

substitute teacher, she recalled making approximately $11,000 in

2009, $13,188 in 2013, and $17,447 in 2014, and estimated that she

made "between $11,000 and $14,000" from 2009 through 2013.

However, she only submitted evidence of her income for 2013, 2014,

and 2015. Based on her pay stubs from March and April 2015, she

was making $11.27 per hour.

Defendant testified she searched for substitute teaching jobs

6 A-0558-15T1
for approximately three hours every day, and was usually placed

in short-term positions because long-term positions were hard to

get. She did obtain a long-term substitute teaching job once,

which she testified "pays the teacher's salary" of "[t]wenty

something dollars" but without benefits. Defendant also testified

she never applied for substitute teaching jobs outside of her

county because the commuting costs were high and the job market

was weak.

Defendant testified she obtained two "statement[s] of

eligibility" from Florida in 2011 that permitted her to teach math

to grades five through twelve before they expired in 2014. While

eligible, she applied for "numerous" full-time teaching positions,

received two callbacks, but was not hired because the employers

told her they preferred certified teachers, which required

additional schooling. She explained that she could not afford to

renew her statements of eligibility and was discouraged because

she "saw certified teachers having a hard time getting jobs."

Outside of applying for teaching jobs, defendant testified

she went to three job fairs and applied for jobs at Nova and jobs

advertised by Nova, but had no success. In addition, she used the

website Career Builder to apply to jobs, as well as Monster.com,

employers' websites, and newspapers ads. She also met with

employment agencies, but never received a response from them. When

7 A-0558-15T1
she attempted to apply in-person, employers either did not have

any openings or directed her to apply online. She testified she

searched for non-teaching jobs "anytime" and on the weekends, but

did not say how much time she expended.

Defendant testified that, between March 2010 and November

2013, she had a few telephone interviews for mostly "sales,

commission-type work." She recalled applying for a job that sent

her to Lowe's on her second interview where she had to sell DirecTV

subscriptions. She was able to attract one customer and was

offered the job with a commission-only salary, but did not take

it. She testified she had a few other interviews for similar

sales jobs and "insurance type jobs," as well as an interview to

be a resident supervisor for a homeless shelter for addicts.

However, aside from sales jobs and commission-based jobs, she

received no offers.

Following the November 2013 order, she testified she expanded

her search to include "jobs that just needed . . . a high school

diploma or GED," such as cashier and receptionist positions.

However, between November 2013 and April 2015, defendant only

received offers for commission-based jobs. She explained she did

not accept these offers because she would have to commit full-time

and give up her substitute teaching jobs, a move she considered

"risky" because she did not believe she was very good at the sales

8 A-0558-15T1
jobs and would earn less money. Furthermore, defendant testified

that medical issues caused by a serious car accident in 19921

prevented her from working in jobs that required lifting or

standing for long periods of time, such as nursing aide, childcare,

and pharmacy technician jobs.

When asked about expanding her job search geographically,

defendant testified she searched for jobs "all over Florida" in

the last year. She said she also applied for jobs outside Florida,

but could not give specifics other than she "applied in North

Carolina, not recently." She did state she would relocate from

Florida if she could secure a job before moving.

Defendant testified that, between March 2011 and November

2013, she provided evidence of her job search efforts to plaintiff

in the form of one list that stated the job title and company and,

after the November 2013 order, she provided an additional list

that identified who she spoke with.

The trial judge granted plaintiff's motion to terminate his

obligation to pay alimony and maintain life insurance, effective

June 30, 2016, and set forth her reasons in a fourteen-page written

decision.

1
Other than her own testimony, defendant did not provide any
evidence regarding her health issues and their impact on her
ability to work.

9 A-0558-15T1
 The trial judge found both parties were "highly educated"

and, represented by counsel, had agreed to the terms of the MSA,

which memorialized their "understanding that Defendant would

actively seek a higher-paying job to eventually put the parties'

financials on equal footing." She concluded the MSA was a valid

and enforceable contract between the parties in which "Plaintiff

was to provide alimony to Defendant, while Defendant was to

actively seek a better job." The judge found

Defendant did not uphold her end of the
parties' bargained-for-exchange. As shown by
the evidence and testimony presented during
the Plenary Hearing, over the course of five
(5) years since the parties voluntarily
entered into their Agreement, Plaintiff's
$12,000.00 salary has only increased by
approximately $5,000.00.

In her statement of reasons, the trial judge found defendant's

testimony regarding her employment search "disingenuous" and

"lack[ed] credibility," recounting that defendant "could not

remember" from which employers she received callbacks, she was

"vague and . . . stumbled over her own answers" when asked about

her efforts to look for employment outside of her county of

residence, and she was "unclear regarding the details of her

increased job search."

The trial judge reviewed defendant's job search efforts in

the years before the November 2013 order as well as her efforts

10 A-0558-15T1
following that order. She stated the "only list" defendant

"provided with specific details of job applications" were all

dated June 6, 2015,2 just five days before the plenary hearing.

Aside from that list, the trial judge found the job search lists

defendant submitted were noncompliant with the MSA and court

orders, as they were "incomplete," "vague and unspecific," and

"precluded Plaintiff from verifying any of her job applications."

Defendant did not provide any other evidence of her application

submissions from the employers she applied to. The trial judge

also found it "suspect" that defendant did not provide her tax

returns from 2010 through 2013.3

The trial judge concluded defendant "did not make a good

faith effort to obtain higher paying employment in violation of

the [MSA]," that she "was not looking for a job with any sincere

or honest effort," and her job search efforts were merely "a veiled

attempt to make this Court and Plaintiff believe she was looking

for a job to keep receiving alimony." The judge found defendant's

need for alimony "was a self-imposed need created by her passive

2
As defendant noted in her motion for reconsideration, the list
actually spanned a time frame of February to June 2015.
3
Defendant challenges this finding by the judge, stating she
provided other evidence of her income. That argument does not
refute the trial judge's observation that income tax returns were
not provided.

11 A-0558-15T1
job search of the past five (5) years" and she "purposefully under-

informed Plaintiff."

The trial judge then considered whether plaintiff's alimony

obligations should be modified or terminated. She found defendant

to be "voluntarily underemployed" and imputed an income to her of

$55,286.40, which defendant testified was "the salary of a full-

time teacher in her area." Noting that the imputed income

reflected an ability to earn a salary similar to plaintiff's, the

trial judge terminated plaintiff's obligations to pay alimony and

maintain life insurance for defendant's benefit, effective June

30, 2016.

On July 17, 2015, defendant moved for reconsideration of the

June 29th order. She argued the trial judge incorrectly

characterized her 2015 job search list by failing to acknowledge

that the list spanned February to June 2015. She also contended

the judge erred in imputing a full-time teacher's income because

she was only a substitute teacher and not certified to teach full-

time.

Following oral argument, the trial judge denied defendant's

motion for reconsideration and set forth her reasons in a written

opinion. The trial judge readily acknowledged and corrected the

error she made regarding the dates contained in defendant's 2015

job search list. However, because the list spanned only five

12 A-0558-15T1
months and was the "the only job search list" produced by defendant

that complied with the information requirements of the MSA and

court orders, the job search was insufficient to constitute a good

faith effort by defendant in her overall employment search efforts.

The trial judge also noted that, because the plenary hearing was

originally scheduled for January 2015 to assess defendant's

efforts in the year following the November 2013 order, defendant's

post-January 2015 search efforts should not be considered. The

trial judge also explained that the length of time of defendant's

search was only one factor she considered; she also based her

decision on other factors, such as her findings that defendant's

testimony was not credible and her job search lists "created

confusion specifically to avoid accountability." Further, the

trial judge reaffirmed her finding that defendant was

underemployed and that the income of a full-time teacher was

properly imputed to her, noting defendant's testimony that she had

worked an interim job at a full-time teacher's salary proved that

she had the potential and capacity to earn a full-time teacher's

income.

In her appeal, defendant argues the trial judge: abused her

discretion in finding defendant acted in bad faith regarding her

efforts to obtain higher-paying employment and ignored the

directions included in prior court orders (Point II); admitted her

13 A-0558-15T1
error in characterizing defendant's employment search (Point III);

erred in imputing the salary of a full-time certified teacher to

defendant (Point IV); erred in allowing respondent to make the

unsubstantiated allegation he could not verify defendant's job

search (Point V); made several errors regarding details of

defendant's job search (Point VI), erred in allowing plaintiff to

make the unsubstantiated allegation that defendant could earn

$50,000 to $60,000 as a pharmacist in Jamaica (Point VII); erred

in considering defendant's lack of job offers as evidence of her

failure to comply with the prior order (Point VIII); erred in

finding defendant lacked credibility (Point IX); and erred in

finding defendant failed to provide tax returns for the period

from 2010 to 2013 (Point X).

We are not persuaded by any of defendant's arguments. The

argument raised in Point III lacks sufficient merit to warrant

discussion and the arguments presented in Points V, VI, VII, VIII,

IX and X require only limited discussion. R. 2:11-3(e)(1)(E).

II.

Appellate review of a trial court's decision to modify an

alimony obligation "must give due recognition to the wide

discretion which our law rightly affords to the trial judges who

deal with these matters." Reese v. Weis, 430 N.J. Super. 552,

571-72 (App. Div. 2013) (quoting Donnelly v. Donnelly, 405 N.J.

14 A-0558-15T1
Super. 117, 127 (App. Div. 2009)). Discretion is particularly

important in the adjudication of matrimonial matters "because the

trial judge has 'a feel of the case' and is in the best position

to 'make first-hand credibility judgments about the witnesses who

appear on the stand.'" Elrom v. Elrom, 439 N.J. Super. 424, 433

(App. Div. 2015) (quoting N.J. Div. of Youth & Family Servs. v.

E.P., 196 N.J. 88, 104 (2008)).

Our "review of a trial court's findings of fact is limited."

Reese, supra, 430 N.J. Super. at 567 (quoting Cesare v. Cesare,

154 N.J. 394, 413 (1998)). "The general rule is that findings by

the trial court are binding on appeal when supported by adequate,

substantial, credible evidence." Ibid. (quoting Cesare, supra,

154 N.J. at 411-12). Reversal is appropriate only when the factual

findings prove to be "so manifestly unsupported by or inconsistent

with the competent, relevant and reasonably credible evidence as

to offend the interests of justice." Elrom, supra, 439 N.J. Super.

at 433 (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am.,

65 N.J. 474, 484 (1974)).

We are also "obliged to accord deference to the trial judge's

credibility determinations." Reese, supra, 430 N.J. Super. at 567

(citing Cesare, supra, 154 N.J. at 412). When credibility is

important, "the trial court's conclusions must be given great

weight and must be accepted by the appellate court unless clearly

15 A-0558-15T1
lacking in reasonable support." Id. at 568 (quoting N.J. Div. of

Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div.

2005)).

We also "grant substantial deference to the trial judge's

discretion on evidentiary rulings," Bd. of Educ. v. Zoning Bd. of

Adjustment, 409 N.J. Super. 389, 430 (App. Div. 2009), and will

not disturb a ruling "unless there is a clear abuse of discretion,"

Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div.

1991).

However, "the trial judge's legal conclusions, and the

application of those conclusions to the facts, are subject to our

plenary review." Reese, supra, 430 N.J. Super. at 568 (citing

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,

378 (1995)). As always, questions of law are reviewed de novo.

Ibid. (citing Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597,

601 (App. Div. 2007)).

Applying these principles to defendant's arguments, we

conclude the arguments presented in Points V and VII challenge

evidentiary rulings that did not constitute an abuse of discretion;

the challenges to the trial judge's fact finding in Points VI,

VIII and X fail because the judge's findings as a whole are

supported by adequate, substantial, and credible evidence in the

record; and the argument in Point IX challenging the judge's

16 A-0558-15T1
credibility finding lacks merit because the judge's assessment is

not clearly lacking in reasonable support. As a result, these

arguments merit no further discussion.

III.

We turn to defendant's argument that the trial judge erred

in finding she failed to make a good faith effort to find a higher-

paying job in the years since the 2010 divorce.

Although defendant argues that plaintiff "presented no

competent or compelling evidence to assert that [her] job search

was lacking and amounted to bad faith," the trial judge's finding

did not require "compelling evidence" for support, but only

adequate, substantial and credible evidence to be accorded our

deference.

The proofs defendant submitted to show her good faith efforts

between November 2013 and January 2015 were not compliant with the

MSA and the November 2013 order. The job search lists spanning

from November 2013 to January 2015 contain significantly more

entries than the job contacts lists of the same date range and

only a few of the job search list entries can be found in the job

contacts list. For example, according to the job search list,

defendant applied to sixty jobs in November 2013, but only lists

the information for seven job contacts that month on the job

contacts list. Moreover, only one of the entries on the jobs

17 A-0558-15T1
contacts list, "Karma Innovations Inc," appears on the job search

list. Thus, the job search lists from November 2013 to January

2015 are deficient because they do not include the application

date or employer contact information. Likewise, the job contacts

lists from November 2013 to January 2015 are deficient because

they do not contain five searches per week and do not include the

positions she applied for.

There was, then, adequate support in the record for the

finding that defendant failed to comply with the requirements for

searching for a higher-paying job and documenting her efforts.

Nonetheless, defendant challenges the trial judge's finding,

presenting the following arguments: She contends the judge erred

in accepting plaintiff's assertion that defendant's job search

proofs were unverifiable. She also argues the judge

mischaracterized defendant's job search efforts by (1) stating

defendant prioritized obtaining substitute teaching jobs; (2)

making contradictory statements regarding defendant's testimony

about her job search efforts outside of the county she resided in;

and (3) stating defendant only searched for "teaching and customer

services" jobs.

These criticisms of the trial judge's factfinding are

unpersuasive. To the extent that the judge's statement of reasons

failed to acknowledge details of defendant's job searches, these

18 A-0558-15T1
oversights are inconsequential and do not undermine either the

findings or the support that resulted in the conclusion that

defendant failed to comply with the requirements established for

her good faith job search.

IV.

In Point IV, defendant challenges the trial judge's decision

to impute income to her that is the equivalent of a salary earned

by a full-time certified teacher.

In determining a proper alimony award, imputation of income

is warranted where a spouse "is, without just cause, voluntarily

underemployed or unemployed." Schochet v. Schochet, 435 N.J.

Super. 542, 549 (App. Div. 2014) (quoting Child Support Guidelines,

Pressler & Verniero, Current N.J. Court Rules, comment 12 on

Appendix IX-A to R. 5:6A at 2589 (2014)). A finding of

"underemployment" means the spouse "is intentionally failing to

earn that which he or she is capable of earning." Dorfman v.

Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998).

The trial judge made the threshold finding that defendant was

"voluntarily underemployed" as the basis for imputing income.

Defendant argues that the decision to impute the level of income

a full-time certified teacher earns is unsupported by competent

evidence because she is not a certified teacher and cannot afford

certification. She argues the temporary position she held as a

19 A-0558-15T1
"long-term substitute" making $26.58 per hour was not her "usual"

or "former" income level, as evidenced by her pay stubs which

showed she typically earned $11.27 per hour as a substitute teacher

and testimony that higher-paid teaching jobs were difficult to

obtain. In further support of her argument, defendant cited her

testimony about the difficulty of getting a teaching job in

Florida, her lack of contacts to obtain a tutoring job, and her

inability to work at a preschool or daycare facilities and fast

food restaurants due to her health issues.

Imputing the income of a spouse "is a discretionary matter

not capable of precise or exact determination[,] but rather

require[s] a trial judge to realistically appraise capacity to

earn and job availability." Elrom, supra, 439 N.J. Super. at 434

(alterations in original) (quoting Gnall v. Gnall, 432 N.J. Super.

129, 158 (App. Div. 2013), rev'd on other grounds, 22 N.J. 414

(2015)). This court "will not reverse the decision absent a

finding the judge's decision rested on an impermissible basis,

considered irrelevant or inappropriate factors, failed to consider

controlling legal principles or made findings inconsistent with

or unsupported by competent evidence." Ibid. (citations and

internal quotation marks omitted).

Trial judges have "'every right to appraise realistically [a

spouse's] potential earning power' and examine 'potential earning

20 A-0558-15T1
capacity' rather than actual income" when imputing income. Id.

at 435 (citations omitted). If "a spouse is not earning to his

or her true potential and capacity then an imputation of income

based upon that potential is appropriate." Stiffler v. Stiffler,

304 N.J. Super. 96, 101 (Ch. Div. 1997).

Defendant has a master's degree in business administration,

was a licensed pharmacist in Jamaica and has been able to obtain

two "statement[s] of eligibility" from Florida that made her

eligible to teach math to grades five through twelve full-time.

Her employment history includes an interim teaching job that paid

a "teacher's salary." This undisputed evidence, stripped to its

essentials, supports the conclusion that she has the potential and

capacity to earn substantially more than she has. Defendant's

claim that she cannot afford to become certified or renew her

statement of eligibility does not undercut that conclusion. See

Elrom, supra, 439 N.J. Super. at 435 ("courts have always looked

beyond . . . claims of limited resources and economic opportunity"

in examining potential earning capacity.).

Although the trial judge's decision properly considered

defendant's "work history, occupational qualifications, [and]

educational background" in her income imputation, it made no

mention of the "prevailing job opportunities in the region." Child

Support Guidelines, Pressler & Verniero, Current N.J. Court Rules,

21 A-0558-15T1
comment 12 on Appendix IX-A to R. 5:6A at www.gannlaw.com (2017).

Defendant consistently testified she had a hard time obtaining

full-time teaching jobs because employers preferred certified

teachers and she "saw certified teachers having a hard time getting

jobs." At the same time, however, she testified she never applied

for teaching jobs outside of her county due to the high commuting

costs and weak job market. In light of defendant's admission that

she limited the scope of her search and the judge's appraisal of

defendant's credibility, it was within the trial judge's

discretion to disregard defendant's testimony regarding the job

market for teachers in Florida.

Because the trial judge's decision to impute a full-time

teacher's income to defendant is consistent with controlling legal

principles and is adequately supported by competent evidence, it

shall remain undisturbed.

V.

Defendant amended her notice of appeal to include an appeal

from the denial of her motion for reconsideration. However,

contrary to the requirements of Rule 2:6-2(a)(6), her appellate

brief does not contain a separate point heading and argument

regarding the denial of her motion for reconsideration. The

failure to brief an argument may be deemed a waiver of the

argument. Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014).

22 A-0558-15T1
Further, we "may refrain from considering cursory arguments . . .

that are not properly submitted under proper point headings."

Pressler & Verniero, Current N.J. Court Rules, comment 2 on R.

2:6-2 (2017) (citing Solar Energy Indus. v. Christie, 418 N.J.

Super. 499, 508 (App. Div.), certif. denied, 207 N.J. 190 (2011).

The only argument we have gleaned from defendant's brief

regarding the motion for reconsideration is included in Point III,

in which she challenges the trial judge's factfinding and reviews

exhibits that were submitted in support of the motion for

reconsideration. These documents were not part of the record from

the plenary hearing.

Pursuant to Rule 4:49-2, the purpose of a motion for

reconsideration is to allow parties to bring to the trial court's

attention "matters or controlling decisions which counsel believes

the court has overlooked or as to which it has erred." It is not

an opportunity to relitigate the matter by presenting the court

with evidence that was not part of the record on which a decision

has been made. Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi,

398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521

(2008). Thus, denial is appropriate if the motion is based on

unraised facts known to the movant prior to entry of judgment.

Del Vecchio v. Hemberger, 388 N.J. Super. 179, 188-189 (App. Div.

2006).

23 A-0558-15T1
 Reconsideration is appropriate only in cases "that fall

within 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." Asterbadi, supra, 398 N.J. Super.

at 310 (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch.

Div. 1990)). Moreover, "a litigant must initially demonstrate

that the Court acted in an arbitrary, capricious, or unreasonable

manner, before the Court should engage in the actual

reconsideration process." D'Atria, supra, 242 N.J. Super. at 401.

To the extent that defendant has argued the court erred in

denying her motion for reconsideration, her argument lacks merit.

Defendant failed to make the requisite showing that the trial

judge acted in an arbitrary, capricious or unreasonable manner.

And, the documents submitted in support of the motion could not

be relied upon to support a motion for reconsideration.

Affirmed.

24 A-0558-15T1