You see it all of the time. Someone file a motion with the court regarding discovery and/or asking for various pendente lite relief, like temporary support, temporary parenting time and other things that come up during the pendency of a case. Judges are human and sometimes they just get it wrong, either because they get the law wrong, misunderstand the facts, miss certain things that are in the paper or for any other reason. When that occurs, it is common for one or both sides to file a “motion for reconsideration” to correct the mistake. Some people just file motions for reconsideration because they don’t like the result and want a “second bit of the apple” as is referenced in the case law. That said, often there is a legitimate mistake that one side will take advantage off, often to prolong a case and/or negotiate in bad faith, because they have the so called “bird in the hand.”
Judges seem to hate motions for reconsideration, either because they are overworked and don’t want to have to deal with the motion again, or because they don’t want to have to admit that they may have made a mistake, or for any other reason that a human being may not like to be accused of being wrong. In these cases, even when the error is clear, motions are often denied and the defendant party is awarded counsel fees – even though there is no bad faith in the simple filing of a motion for reconsideration.
That said, an interesting reported (precedential) decision was released by the Appellate Division today that suggests that maybe, just maybe, many, if not most trial court judges were getting the standard for reconsideration wrong all along. Specifically, the case of Alfred Lawson v. Officer Jeff Dewar, Et. Al., Judge Fisher starts the opinion, as follows, “In summarily deciding this interlocutory appeal and vacating the order under review, we write chiefly to point out commonly misunderstood distinctions between motions seeking reconsideration of final orders and motions seeking reconsideration of interlocutory orders.” Later in the decision, when addressing the order before the court on appeal, Judge Fisher noted:
The problem with the judge’s disposition lies with his application of principles relevant only when a judge is asked to reconsider a final order; these standards are incompatible with a request that an interlocutory order be reconsidered. The approach to those requests is significantly different .
While this isn’t a family law case, as the same Rules of Court are implicated, it applies equally to family law cases.
Now typically, when a motion to reconsider a pendente lite Order is filed more than 20 days after the entry of an Order, often the defending party opposes it as being filed out of time even though the Rules and case law are pretty clear. I have even seen judges agree with this and refuse to even hear the motion. Judge Fisher definitively rejected this approach and held:
We start with a frequent misconception about the time within which a motion for reconsideration of an interlocutory order can be filed. Defendants have argued that plaintiff was obligated to move for reconsideration within twenty days of the May 14, 2020 order. That is plainly wrong. Rule 4:49-2 sets a twenty-day time bar for filing motions to alter or amend “a judgment or order,” a phrase that encompasses only final orders, as Judge Pressler long ago observed in Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 258-59 (App. Div. 1987). No one has or could possibly argue the May 14, 2020 order is a final
order. Rule 4:49-2 has no application here.
Now often – if not all of the time – court’s apply the standard set forth in Cummings v. Bahr to pendente lite reconsideration motions. That standard requires a showing that the challenged order was the result of a “palpably incorrect or irrational” analysis or of the judge’s failure to “consider” or “appreciate” competent and probative evidence. Judge Fisher made clear that that is not the proper standard to evaluate motions for reconsideration of non-final, pendente lite Orders and held:
Because Rule 4:49-2 applies only to motions to alter or amend final judgments and final orders, and doesn’t apply when an interlocutory order is challenged, so too the standard described in Cummings v. Bahr … did not apply to the motion before the trial judge. Instead, in ruling on the motion at hand, the judge should have been guided only by Rule 4:42-2 and its far more liberal approach to reconsideration, not the methodology employed when a motion is based on Rule 4:49-2.
Rather, Judge Fisher noted that the proper standard was as follows:
Rule 4:42-2 declares that interlocutory orders “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.” A motion for reconsideration does not require a showing that the challenged order was “palpably incorrect,” “irrational,” or based on a misapprehension or overlooking of significant material presented on the earlier application. Until entry of final judgment, only “sound discretion” and the “interest of justice” guides the trial court, as Rule 4:42-2 expressly states. Nearly forty years ago, Judge Michels said for this court in Ford v. Weisman,
188 N.J. Super. 614, 619 (App. Div. 1983) that, until the suit ends, a trial 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.” (internal citations omitted). By invoking Cummings, the trial judge applied the wrong standard in denying plaintiff’s motion.
But Judge Fisher went even further and stated:
We observe as well there is nothing in our jurisprudence to suggest reconsideration of an interlocutory order is prohibited unless the movant can provide something “new” or unless the prior judge acted in an “arbitrary, capricious or unreasonable” manner.” …
In the final analysis, we urge judges not to view reconsideration motions as hostile gestures. To be sure, some are frivolous, vexatious or merely repetitious, and some constitute an unwarranted attempt to reverse matters previously decided solely because the prior judge is no longer available. But some reconsideration motions – those that argue in good faith a prior mistake, a change in circumstances, or the court’s misappreciation of what was previously argued – present the court with an opportunity to either reinforce and better explain why the prior order was appropriate or correct a prior erroneous order. Judges should view well-reasoned motions based on Rule 4:42-2 as an invitation to apply Cromwell’s rule: “I beseech you . . . think it possible you may be mistaken.” The fair and efficient administration of justice is better served when reconsideration motions are viewed in that spirit and not as nuisances to be swatted aside. (Emphasis added)
Moreover, it is not uncommon for more than one judge to be assigned to a case prior to trial, especially, the longer a case goes on. In fact, every year, a new General Assignment Order is entered by the Chief Justice, and it is not uncommon for judges to move between divisions. Sometimes, judges move within a division and no longer have the same docket. Other times, judges retire or some conflict requires the judge handling the case to change. When this happens, what usually occurs is that the new judge gives absolute deference to the prior judge’s rulings – even when the first judge is no longer assigned and cannot hear the reconsideration motion. Often times, I have heard judges say “I am not Judge X’s Appellate Division.” Put another way, deference would preclude getting an order right. Turns out, that approach and attitude is not correct either.
In Alfred Lawson, Judge Fisher stated:
The judge further erred by giving undue deference to the interlocutory rulings of the Somerset judge. If a prior judge has erred or entered an order that has ceased to promote a fair and efficient processing of a particular case, the new judge owes respect but not deference and should correct the error. See McBride v. Minstar, Inc., 283 N.J. Super. 471, 481 (Law Div. 1994), aff’d o.b., McBride v. Raichle Molitor, USA, 283 N.J. Super. 422 (App. Div. 1995). The polestar is always what is best for the pending suit; it is better to risk giving offense to a colleague than to allow a case to veer off course.
Similarly, the law of the case doctrine has no bearing when a party seeks reconsideration of interlocutory discovery orders. In writing for the Supreme Court, Justice Long recognized the law of the case doctrine “is only triggered when one court is faced with a ruling on the merits by a different and co-equal court on an identical issue.” Lombardi, 207 N.J. at 539 (emphasis added). In support, Lombardi cited Gonzalez v. Ideal Tile Importing Co., Inc., 371 N.J. Super. 349, 356 (App. Div. 2004), aff’d o.b., 184 N.J. 415 (2005), where we held in similar circumstances that the law of the case doctrine does not obligate a court to “slavishly follow an erroneous or uncertain interlocutory ruling.”Interlocutory rulings are “not considered ‘law of the case'” and are “always subject to reconsideration up until final judgment is entered.” Lombardi, 207 N.J. at 539 (citing Johnson, 220 N.J. Super. at 257). (Emphasis added).
While this ruling may lead to a rash of new reconsideration motions – and maybe rightly so – perhaps more importantly, trial judges will heed Judge Fisher’s words and correct mistaken Orders as opposed to swatting aside reconsideration motions on principle.
Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or firstname.lastname@example.org.