RUPERT E. BAPTISTE v. FATOU A. BAPTISTE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5655-08T3

RUPERT E. BAPTISTE,

Plaintiff-Appellant,

v.

FATOU A. BAPTISTE, n/k/a FATOU A. JALLOW,

Defendant-Respondent.

________________________________________________________

October 29, 2010

Argued August 31, 2010 - Decided

Before Judges Payne and Messano.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2760-06.

Rupert E. Baptiste, appellant, argued the cause pro se.

Respondent Fatou A. Baptiste, n/k/a Fatou A. Jallow has not filed a brief.

PER CURIAM

Plaintiff Rupert E. Baptiste filed this appeal pro se. On April 15, 2010, because defendant Fatou A. Baptiste, now known as Fatou A. Jallow, had not complied with our scheduling order, we ordered that any brief on her behalf of would not be accepted for filing. In the interest of justice, we have exercised our liberal discretion in an attempt to discern the exact nature of plaintiff's appeal and the legal arguments he has raised. In this regard, we have been assisted by a member of the bar, Geoffrey T. Mott, who appeared with plaintiff at oral argument, and who subsequently supplied us with a series of transcripts from various court proceedings between the parties during the years 2006 through 2008. Plaintiff had not filed any transcripts with his appeal. We thank Mr. Mott for his assistance in this regard.

Nevertheless, for the reasons stated below, plaintiff's appeal must be dismissed. Simply put, based upon the record before us, we must conclude that any appeal from orders concerning some of the issues plaintiff has raised is time-barred, and that other issues raised are not cognizable in the context of this appeal.

What we can glean from the record is that the parties were divorced during proceedings that took place in open court on March 22, 2007. Each was represented by counsel at the time. During those proceedings, an oral property settlement was placed on the record; a written agreement was anticipated to be subsequently executed.

We further glean that twin children were born of the marriage in 1995, that they were in the custody of defendant pendente lite, and that pendente lite orders required plaintiff to pay child support. In his brief, plaintiff notes that he consented to defendant's move to Maryland with the children in 2007, though he now claims that decision was made under "duress."

Transcripts of proceedings that occurred after the March 22, 2007 court appearance reveal that the parties continued to dispute the exact terms of the property settlement. As late as March 18, 2008, the judge noted that no written agreement had been executed. At issue was whether plaintiff was entitled to credits for repairs on the marital home that was to be sold and which defendant claimed he had paid. In May 2008, the judge conducted a plenary hearing at which a contractor appeared on plaintiff's behalf regarding some of these claimed expenditures.

Another issue that arose during the proceedings was the need for a court-ordered risk assessment to be completed. There were allegations made regarding plaintiff's violent conduct, though the judge never determined the validity of the claims; at least we can see no determination from the record presented. In January 2008, the judge entered an order requiring probation to "release within 10 days . . . a copy of the risk assessment that was performed on or about May 2007, regarding the issue of supervised or unsupervised visitation." However, during the March 18, 2008 proceedings, it became clear that the assessment was never completed. The judge indeed noted that "the process should [have] served [plaintiff] better." The judge apparently entered another order requiring the assessment to be completed, though that order is not in the record. In any event, the evaluation apparently has never been completed, and plaintiff claims in his brief that he is unable to afford the costs of the assessment.

Plaintiff's brief further claims that defendant has denied him access to his children, that he has not seen them in four years, and that defendant has thwarted his attempts to contact them. However, there is a letter in the record from then-defense counsel, dated December 15, 2008, contesting these claims.

Plaintiff, represented by counsel, apparently filed a prior appeal in 2007. However, in the transcript from the March 2008 proceeding, plaintiff's counsel represented that the appeal was withdrawn. It would appear that another appeal was filed thereafter. A consent order entered on September 15, 2008, and executed by both parties and their attorneys, resolved the issues regarding credits plaintiff was to receive upon the sale of the marital home. That order also provided the actual amounts to be distributed to each party and further required plaintiff "immediately withdraw with prejudice his presently pending appeal."

Plaintiff filed this appeal pro se on April 19, 2009. His notice of appeal indicated that he sought review of orders entered on "10/26/07 & 09/2008," as well as review of "all of the case." The Case Information Statement that accompanied plaintiff's notice of appeal indicated he was appealing from orders of March 22, 2009, September 15, 2008, November 3, 2006, and "every decision" except his actual divorce from defendant.

On May 5, 2009, the judge entered an amended final judgment of divorce. The exact circumstances of the entry of this final judgment are not fully explained, but the document appears to have been drafted by defense counsel. Noting the March 23, 2007 appearance by the parties and counsel before the judge, the final judgment of divorce simply declared that the divorce was entered and that defendant could resume the use of her maiden name.1 It did not incorporate the terms of the property settlement agreement, nor did it address any issues regarding custody, visitation or child support.

On September 19, 2009, plaintiff filed a pro se amended notice of appeal. It again sought review of the September 15, 2008 order, and "all orders entered in the [m]atter post-judgment." On October 5, 2009, plaintiff filed another pro se amended notice of appeal listing five separate orders, the latest being the September 15, 2008 order, as those for which he sought review.

On October 30, 2009, another panel of this court entered an order on plaintiff's motions for leave to appeal the September 2008 order, and to file the notice of appeal as within time. That order specifically provided: "The notice of appeal, insofar as it seeks review of the amended judgment of divorce of May 5, 2009, is deemed timely filed. All other relief sought is denied without prejudice. We do not at this time express any view as to the appealability of any other order." Plaintiff's motion for reconsideration was denied by that panel on December 1, 2009.

In large part, plaintiff's brief and appendix actually address issues that have occurred since his last amended notice of appeal was filed. On October 15, 2009, he filed a motion seeking a reduction in child support and to enforce litigant's rights, specifically, "to see [his] kids." He claimed he had never been "violent towards [his] wife," and that he had "no money" to "see a shrink" as the judge had ordered. We glean from the submissions that plaintiff also claimed a reduction in his income.

The motion was denied on December 15, 2009. Although no statement of reasons for the denial is set forth in the order, and plaintiff claims his request for oral argument was denied, we discern a possible explanation for the decision. The appellate record contains plaintiff's Case Information Statement, a required submission for any motion brought in the Family Part seeking modification of previously-ordered child support. See R. 5:5-4(a). The Statement is dated January 28, 2010, more than two months after the motion was filed, and well after the order denying the motion was entered.

This extended discussion of the procedural history of the matter amply discloses the reasons why this appeal must be dismissed. Appeals from the various orders entered in 2006, 2007, and 2008 are all time-barred. See R. 2:4-1. During these time periods, plaintiff actually filed two separate appeals, both of which were withdrawn. Additionally, the September 15, 2008 order repeatedly referenced in plaintiff's notice of appeal and amended notices of appeal as one for which he seeks our review was a consent order that plaintiff executed with his attorney. The March 22, 2009 order referenced in plaintiff's appellate Case Information Statement is not in the record at all.

The only order for which timely review has been sought is the May 5, 2009, amended final judgment of divorce. Plaintiff does not appeal from the actual entry of the divorce, and he has not advanced any argument regarding defendant's resumption of the use of her maiden name. Those are the only two provisions contained in that judgment.

Lastly, any attempt to appeal the December 2009 denial of plaintiff's motion for modification of his child support and other relief is improper. Plaintiff never sought to amend his notice of appeal in this regard, and the propriety of the December 2009 order is simply not before us. See Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-466 (App.Div.), aff'd o.b. 138 N.J. 41 (1994).

T

1 The discrepancy of one day between the actual proceedings, March 22, 2007, and the date contained in the final judgment of divorce, March 23, 2007, was explained by the parties on the date of the hearing. The reasons for the discrepancy are irrelevant to the issues presented on appeal.