MARIE C. MOISE v. CEDIEU MOISE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1908-04T51908-04T5

MARIE C. MOISE,

Plaintiff-Respondent,

v.

CEDIEU MOISE,

Defendant-Appellant.

____________________________________________________

 

Submitted - September 13, 2005 - Decided

Before Judges R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Essex County, Chancery Division, Family Part, Docket No. FM-07-2824-03N.

Essex-Newark Legal Services, attorneys for appellant (William F. Finnegan, of counsel and on the brief).

Respondent's brief was suppressed.

PER CURIAM

Defendant Cedieu Moise appeals from a November 12, 2004 order denying his motion to amend findings of fact and conclusions of law. In this appeal, defendant requests that we exercise original jurisdiction to make the new findings and that we invalidate three of the trial court's findings. He also requests that we determine that the trial court erred by failing to take judicial notice of its earlier credibility assessment of plaintiff in a September 11, 2003 proceeding. We decline to grant the relief requested by defendant and instead we summarily dismiss this appeal.

Soon after plaintiff Marie Moise commenced an action for divorce, she filed a domestic violence complaint in which she made accusations against defendant which, under scrutiny by the court, were found to be false. In the course of dismissing the domestic violence complaint, the judge remarked that plaintiff was "one of the biggest liars the court has ever met."

Following the trial in the action for the divorce, the judge issued a letter opinion dated July 26, 2004 setting forth findings of fact and conclusions of law. Thereafter, he issued a dual judgment of divorce, dated September 24, 2004, which, among other things, ordered joint legal custody and determined that defendant would have physical custody of the two children of the marriage. Plaintiff was allowed parenting time with the children as set forth in the order.

Even though defendant does not contest the award of joint legal custody and physical custody awarded to him, he filed a motion seeking to alter the court's findings of fact and conclusions of law. He argues that the court's findings were inconsistent with the proofs, inadequate and more favorable to plaintiff than is warranted by the record. He expresses concern on this appeal that the trial judge's findings establish a bench mark for future applications based on changed circumstances and worries that in such applications "there is no reason to expect that the trial judge, or a successor judge, faced with a motion to modify the custody award, will go beyond the Letter Opinion to the trial transcript and other evidence to determine whether the finding in question was plausible."

First, we do not share defendant's lack of faith in the thoroughness with which judges of the Family Part treat applications predicated upon changed circumstances. Second, his position is thoroughly speculative and premature as a basis for appellate relief. Just as defendant has marshaled the record to present his arguments at this time, when no adverse decision has been rendered against him, he can direct the court's attention to the pertinent evidence and testimony to allow the court to evaluate the circumstances in their true context. The imagined or anticipated impact of the record at this juncture upon some future application that may be filed by plaintiff does not present an appropriate occasion for appellate intervention.

It is well settled that "[a]n appeal as of right may be taken only from a final order or judgment. It may not be taken from an opinion." Saltzman v. Saltzman, 290 N.J. Super. 117, 123 (App. Div. 1996) (citations omitted). "The written conclusions or opinion of a court do not have the effect of a judgment. From them no appeal will lie. 'It is only what a court adjudicates, not what it says in an opinion, that has any direct legal effect.'" MacFadden v. MacFadden, 49 N.J. Super. 356, 359 (App. Div. 1958) (quoting Suburban Dep't Stores v. City of East Orange, 47 N.J. Super. 472, 479 (App. Div. 1957)). "Generally, only a party aggrieved by a judgment may appeal from it." Ellison v. Evergreen Cemetery, 266 N.J. Super. 74, 78 (App. Div. 1993), certif. denied, Ellison v. Schenck, Price, Smith & King, 142 N.J. 516 (1995).

The court's order awarding physical custody was favorable to defendant. Beyond that, whatever comments and indeed, whatever errors, if any, the court may have made are harmless. The fact that an application for modification may be sought by plaintiff at some point in the future does not mean that defendant will be prevented from relying on evidence and testimony regarding the parties' prior status. Nor does it mean that a court considering such an application in the future will refuse to take due cognizance of relevant and admissible testimony contained in existing transcripts.

Since the defendant is not now an aggrieved party and is not appealing from any adverse provision of an order or judgment, we hereby summarily dismiss the appeal. We find it unnecessary to address the issue of judicial notice.

 

Plaintiff's brief on this appeal was suppressed.

(continued)

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5

A-1908-04T5

October 4, 2005