SHAUNPEN ZHOU v. SHUFEN HE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1366-05T11366-05T1

SHAUNPEN ZHOU,

Plaintiff-Appellant,

v.

SHUFEN HE,

Defendant-Respondent.

_______________________________________

 

Submitted May 9, 2006 - Decided May 31, 2006

Before Judges Skillman and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1316-04E.

Shaunpen Zhou, appellant pro se.

Shufen He, respondent pro se.

PER CURIAM

Plaintiff Shaupen Zhou, who is self-represented, appeals from orders entered by the Family Part on November 4, 2005 in his matrimonial litigation against respondent, Shufen He, who is likewise self-represented. The November 4, 2005 orders fail to dispose of all issues in the parties' divorce action. We thus dismiss the appeal as interlocutory, there being no order of this court pursuant to R. 2:2-4 granting leave to appeal the orders from which review is sought.

Briefly, the factual and procedural backdrop is as follows. Plaintiff, the husband, and defendant, his wife, were married on May 11, 1988. The parties are of Chinese descent, with a son born in January 1997. The husband filed a pro se divorce action in the Middlesex County Family Part in 2004. Both litigants are only partially proficient in English, and a Mandarin interpreter has been utilized at times in the Family Part proceedings.

At a pendente lite hearing in March 2004, the Family Part awarded the wife primary residential custody of the son. Subsequently, the husband moved to modify custody. The trial court then appointed a lawyer as guardian ad litem for the child. The guardian recommended that the son continue to live with his mother, with no overnights with his father because the father's living quarters were perceived to be inadequate. Nevertheless, in January 2005, the trial court awarded weekly overnights with the father on Saturdays.

Regarding financial issues, the wife's pleadings were suppressed in March 2004 for failure to provide discovery. Evidently she may own real property occupied by her parents in China, and the parties dispute whether that property is a marital asset and, if so, its appropriate valuation and equitable division.

The parties both appeared at a default hearing on May 20, 2005, before the Family Part judge who had been managing the case up through that point. At that hearing, the judge found the husband's pro se notice of equitable distribution deficient under R. 5:5-2(e)(requiring, among others things, "a statement of the value of each asset" and "a proposal for distribution"), because it was imprecise on the terms of equitable distribution. In particular, the plaintiff's notice proposed "an approximate" 50/50 division of marital assets, and also lacked any appraised values of the parties' realty. Notwithstanding these defects and the unresolved equitable distribution issues, the judge directed the husband to submit a proposed form of a final judgment of divorce.

The husband drafted a judgment which, among other things, transferred primary residential custody of his son to him. The husband failed to serve the proposed form of judgment simultaneously on the wife, even though in his May 20, 2005 bench ruling the judge specifically had directed the husband to do so.

The judge incorrectly assumed that the husband's proposed form of judgment had been served on the wife and that she had not timely objected to its terms, and also overlooked the document's material change in custody, which had not been the subject of any rulings at the May 20, 2005 hearing. The judge signed the judgment on June 28, 2005, in the form submitted, and the husband thereafter served the judgment on the wife.

This prompted the wife, who was by that point represented by counsel, to file an Order to Show Cause seeking to vacate the judgment. After considering that application, a successor Family Part judge in the case entered an order on November 4, 2005 with the following operative provisions:

IT IS FURTHER ORDERED that the Court finds that there is inadequate notice to Defendant with regard to the division of the marital assets because it proposes division on "approximately 50/50 basis" and Defendant would not be able to determine exactly what "approximately 50/50" is; and

IT IS FURTHER ORDERED that with regard to the marital properties, an order cannot be entered as no appraisal or valuation for those properties has been provided; and

IT IS FURTHER ORDERED that with regard to the vehicles, an order cannot be entered as no proof was shown as to what the value of those vehicles is. . . .

Another order also entered by that same judge on November 4, 2005 states:

2. The entry of default against Defendant is hereby vacated.

3. The case is reopened only as to the issue of equitable distribution of marital property which is not specifically addressed in the Amended Judgment of Divorce.

4. The parties shall complete discovery of said matters within 45 days.

These orders, from which the husband now seeks review, are plainly interlocutory in nature, as all issues in the divorce action have yet to be disposed of with finality. Any doubt from the face of these orders that this case has not been finally adjudicated and that the trial court contemplates further proceedings relating to equitable distribution is dispelled by the trial judge's November 4, 2005 oral opinion, which states in part:

And as to equitable distribution, I'm going to reopen the equitable distribution as there are still unresolved issues. I will give the parties 30 days to complete discovery. And the parties are ordered to attend an early settlement panel on January 23rd, 2006.

And, as I said, as to the issues of custody and support, they remain as they are pendente lite. And the plaintiff is free to file any appropriate motions to alter or change custody or support that he feels are appropriate.

This part of the judge's oral opinion also indicates that the husband may still challenge the court's "pendente lite" determinations regarding child custody and support.

In order to be eligible for appeal as a final judgment, the order must be final as to all parties and as to all issues. Mango v. Pierce-Coombs, 370 N.J. Super. 239, 245 n.1 (App. Div. 2004); Yuhas v. Mudge, 129 N.J. Super. 207, 209 (App. Div. 1974); see also R. 2:2-3(a)(1)(granting right to appeal only from final judgments of the Superior Court trial divisions). These authorities sensibly disfavor the piecemeal review of trial court orders in ongoing litigation. Although the document executed by the Family Part on June 28, 2005 was denominated a "final judgment," that item has since been set aside, pending the parties' continued discovery and proceedings on equitable distribution and other unresolved matters, which may or may not include custody.

 
Although we appreciate that the litigants before us are self-represented and may not have a full mastery of technical legal terms in the English language, we decline to treat the husband's appeal, nunc pro tunc, as a motion for leave to appeal and decline to address the merits of the parties' disputes on the incomplete record before us. Any further review shall await the entry of a final judgment disposing of all issues, and the timely filing of a proper notice of appeal from that final order.

Appeal dismissed.

(continued)

(continued)

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A-1366-05T1

May 31, 2006