ANDREA MAGALHAES v. THOMAS RUSSO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4329-09T1

ANDREA MAGALHAES,

Plaintiff-Appellant,

v.

THOMAS RUSSO,

Defendant-Respondent.

__________________________________________

May 17, 2011

Submitted March 30, 2011 - Decided

Before Judges Fuentes, Nugent and Newman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FD-13-0439-06.

Law Offices of August J. Landi, attorneys for appellant (August J. Landi, of counsel and on the brief).

Jacobowitz, Defino, Latimer & O'Toole, attorneysfor respondent (Benjamin M. Hoffman, on the brief).

PER CURIAM
 

In this companion appeal to Docket No. A-0752-09, plaintiff appeals from a handwritten order entered on March 22, 2010, which was typed and entered on April 29, 2010. We affirm.

To place this appeal in context, we need not repeat the facts describing the party's relationship and their twochildren. The background to the entry of the order under appeal may be summarized as follows. The companion appeal is from an order entered on September 18, 2009, based on the trial court's decision of September 4, 2009. That order reads as follows in pertinent part:

1. The Court shall reconsider its Order dated July 6, 2009, specifically paragraph 5, which set the defendant's weekly child support amount at $198.00.

2. The defendant's child support obligation is hereby decreased from $198.00 per week to $191.00 per week effective September 4, 2009. A copy of the child support guidelines are attached hereto.

3. The plaintiff shall hereby reimburse the defendant in the amount of [$6800.00] pursuant to paragraph 3 of the parties' Consent Order dated March 23, 2007, representing the credits due for the funds advanced by the defendant to the plaintiff but not utilized for purposes of education on behalf of Marcello Magalhaes. The plaintiff shall hereby reimburse the defendant in the amount of [$6800.00] within forty-five (45) days of the date of this order.

4. The plaintiff shall hereby reimburse the defendant in the amount of [$1128.00] pursuant to paragraph 2 of the Consent Order dated March 23, 2007[,] which obligated the plaintiff to pay the defendant "the amount he would have saved by having one exemption in 2007 and so on, if he yields the exemption to plaintiff for the purpose of maximizing the financial aid." The plaintiff shall hereby reimburse the defendant in the amount of [$1128.00] within forty-five (45) days of the date of this Order.

5. Plaintiff, Andrea Magalhaes, shall pay counsel fees to Defendant's attorney in the amount of [$1000.00] for the necessity of this application within forty-five (45) days of this Order.

Plaintiff, pro se, filed a motion for reconsideration of the order, but did not include a copy of the order itself, which had not been filed when the motion was submitted. Consequently, the trial court dismissed the motion without prejudice. Plaintiff then filed a single page with the court indicating that copies of the order to be reconsidered and the proposed order were attached. On October 13, 2009, defendant filed his notice of appeal, which placed jurisdiction with this court. Thereafter, plaintiff, now represented by counsel, filed a notice of cross-appeal on October 26, 2009. Plaintiff failed to comply with the terms of the order even though no stay of the order of September 18, 2009 was in effect.

On January 4, 2010, defendant filed a motion, seeking enforcement of the terms of the September 18, 2009 order relating to plaintiff's reimbursement obligation. Plaintiff cross-moved on January 27, 2010 raising the issue that the equities should bar any reimbursement to plaintiff, notwithstanding the terms of the consent order of March 23, 2007. The trial court conferenced the matter on March 22, 2010 with both parties and then entered an order on the same day staying defendant's child support obligation. That order, which is the subject of this appeal, provided, in relevant part, as follows:

1. The defendant's child support obligation of $191 per week as set forth in the September 18, 2009 Order is stayed pending the current appeal. The Probation Department shall hereby remove the wage garnishment on the defendant's wages and there shall be no enforcement of the child support obligation until the issues in the appeal are resolved. The defendant shall have no obligation to pay child support until [the] issues in the appeal are resolved in full. Should there be arrears owed after the conclusion of the appeal, this issue will be reserved and resolved after the appeal by the [c]ourt and parties. Any arrears will be deducted from [monies] owed under paragraphs 3, 4, and 5 of the September 18, 2010 Order.

2. Enforcement of paragraphs 3, 4 and 5 of the September 18, 2009 Order shall be stayed pending the result of the current pending appeal.

3. The plaintiff Andrea Magalhaes'[s] Cross-Motion dated January 27, 2010 is hereby denied without prejudice.

4. The defendant Thomas Russo's Cross-Motion dated January 4, 2010 is stayed pending the resolution of the appeal.

On April 28, 2010, plaintiff filed a notice of motion underDocket No. A-0752-09 to enlarge the record, to deem that appeal to be interlocutory, and to dismiss the appeal. That motion was denied on May 26, 2010 in all respects.

On this appeal, plaintiff raises the following issues for our consideration.

POINT ONE

THE TRIAL COURT FAILED TO MAKE ANY FINDINGS OF FACTS OR CONCLUSIONS OF LAW RENDERING REVIEW BY THE APPELLATE DIVISION IMPOSSIBLE.

POINT TWO

THE TRIAL COURT FAILED TO WEIGH THE EQUITIES IN SUMMARILY DENYING ALL RELIEF REQUESTED BY PLAINTIFF.

Plaintiff contends that the trial court did not make adequate findings of fact and conclusions of law when it granted the stay and denied plaintiff's cross-motion, without prejudice, pending the resolution of the companion appeal. While there areno express findings set forth by the trial court, it is perfectly obvious in granting the stay that the trial court recognized it was without jurisdiction to entertain the application while the appeal in the companion case was pending and would await the resolution of that appeal. Thus, there is no merit whatsoever to this contention.

With regard to plaintiff's second point, plaintiff urges that the court did not weigh the equities, involving defendant's lack of support for the two children for fifteen years and weighing that against plaintiff's reimbursement to defendant of the balance of monies not utilized for Marcello's education. This issue was raised and rejected in the companion appeal. We need not reiterate how this issue was resolved against plaintiff's position other than to note the monies required to be reimbursed to defendant were the result of breaches of a consent order of March 23, 2007 when both plaintiff and defendant were represented by counsel.

We also ruled in the companion appeal that plaintiff's effort to receive retroactive child support was previously addressed on February 2, 2006, when the child support obligation was made retroactively effective as of September 21, 2005, the date plaintiff filed her initial motion for child support. The trial court declined to compel defendant to pay any retroactive child support beyond that date. Plaintiff did not move for reconsideration, nor did she file an appeal from that order. Therefore, as noted in the companion appeal, this issue has already been litigated and is not subject to relitigation.

Plaintiff attempts to avoid the impact of this ruling by arguing that the right of child support belongs to the children and their mother's failure to present their case on their behalf should not result in a financial detriment to them. Plaintiff relies on the decision in L.V. v. R.S., 347 N.J. Super. 33 (App. Div. 2002). There, the parties had a daughter who had been given the mother's last name, but plaintiff, mother, chose toraise her daughter without the assistance of the father in any manner. Id. at 36. However, the daughter, on her own, searched for her father when she was sixteen years of age. Id. at 37. Through the Internet, she located her father, and they communicated for a few months when the mother filed an application for child support on her behalf. Id. at 37-38.

The trial court denied relief on the grounds of laches. Id. at39.

We reversed and remanded the matter to the trial court holding that the "actions" and "non-actions" of the custodial mother were "sufficient to justify the bar of laches to deny her any claim for reimbursement" of child support from the father,

but did not preclude the child's right of on-going support from the father. Id. at 39-40. We remanded the matter "for a plenary hearing to determine an appropriate amount of child support consistent with defendant's income and other financial obligations made retroactive to the filing of the complaint." Id. at 44. The scenario here bears some resemblance to that in L.V. v. R.S. Defendant had virtually no contact with his children until plaintiff sought child support in 2005. Nonetheless, plaintiff was awarded child support retroactive to the effective date of the filing of her application.

Plaintiff's application to revisit this issue as set forth in her cross-motion of January 27, 2010, and as identified in the order of March 22, 2010 is not only untimely, but has already been decided in the companion appeal.