JOANN K. WEROSTA v. KARL R. WEROSTA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JOANN K. WEROSTA, n/k/a

JOANN K. KARNAVAS,

Plaintiff-Appellant,

v.

KARL R. WEROSTA,

Defendant-Respondent.

_____________________________________

November 19, 2013

 

Submitted September 23, 2013 Decided

 

Before Judges Yannotti and Leone.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-445-06.

 

Hartman Group, L.L.C., attorneys for appellant (Frances A. Hartman, on the brief).

 

Archer & Greiner, P.C., attorneys for respondent (Jennie A. Owens, on the brief).

 

PER CURIAM

Plaintiff Joann K. Karnavas (formerly Werosta) attempts to appeal from a number of orders entered in litigation with defendant Karl R. Werosta following their judgment of divorce. We dismiss her appeal of most of those orders as untimely, and we affirm the order she has timely appealed.

I.

This is the second time these parties have been before us. Our opinion in the first appeal relates the prior procedural history. Werosta v. Werosta, No. A-0545-10 (App. Div. August 18, 2011) (slip op. at 2-6). On April 26, 2010, defendant brought a motion to reduce child support. This resulted in orders dated June 4 and 14, 2010, reducing defendant's child support payments from $605 to $281 per week effective April 26, 2010. Plaintiff filed a motion for reconsideration that was denied by an August 16, 2010 order, which she appealed. Because the merits of her reconsideration motion were closely intertwined with the merits of the June orders, we reviewed the June 2010 orders as well. Id. at 7 (citing Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 461 (App. Div.), certif. denied, 174 N.J. 544 (2002)). We reversed because the reduced child support had been calculated based on an income figure for defendant that was below his actual 2009 income of at least $182,741, and because the judge lacked proper financial information from plaintiff. We remanded to recalculate child support, and to reconsider the $2,000 in attorney's fees awarded to defendant. On remand, each party submitted an updated Case Information Statement (CIS) and certifications concerning child support issues.

On December 2, 2011, after hearing argument, the judge entered the first order challenged in this appeal. The order calculated defendant's child support obligation separately for two time periods ("stages"). The judge calculated child support for "stage one" - from April 26, 2010, through June 30, 2011, when defendant's alimony obligation ended to be $430 per week, based on defendant's 2009 gross income of $198,302 and plaintiff's imputed income of about $27,000. The judge next calculated child support for "stage two" - from July 1, 2011, through December 2, 2011 - to be $799 per week, based on defendant's 2010 gross income of $191,212, plaintiff's imputed income of about $27,000, and imputed child care costs that would be incurred to earn the imputed income. The judge ordered defendant to pay plaintiff arrears of $9,089 for stage one and $13,468 arrears for stage two, and reduced the attorney's fees award to $1,000.

By letter, defendant's counsel pointed out that the imputed child care costs had not been properly inputted into the child support guidelines for stage two. The judge agreed and issued an amended order dated December 12, 2011, recalculating the child support for stage two at $521 per week, and the arrears for stage two at $6,240. On December 28, 2011, plaintiff filed a motion for reconsideration of the December orders. Defendant filed a cross-motion.

On February 17, 2012, the judge heard argument on the reconsideration motions, and entered an order granting plaintiff's request to consider the imputed child care costs in calculating child support for stage one as well as stage two. The judge denied the remainder of her motion to reconsider. The judge granted defendant's cross-motion and allowed him an "other dependent deduction" for his child by his new wife. The judge ordered both parties to submit revised child support calculations.

On March 16, 2012, the judge issued an amended order recalculating stage one child support at $377 per week, and stage one arrears at $5,169.30. The judge also recalculated stage two child support at $503 per week, and stage two arrears at $5,772. The judge added a $1,847 undercharge to those arrears, and subtracted the $10,000 in arrears defendant had already paid, the $1,000 in attorney's fees, and a $2,400 credit. The judge thus ordered plaintiff to repay defendant $611.70. On April 9, 2012, plaintiff served a motion to reconsider the March 16, 2012 order. Defendant filed a cross-motion.

On June 1, 2012, the judge granted both motions in part. The judge determined that the undercharge was $2,069.45, recalculated the arrears, and ordered defendant to pay plaintiff $297.53 in arrears due.

II.

On July 16, 2012, plaintiff filed a notice of appeal stating that she was appealing orders entered December 2, 2011, December 12, 2011, February 17, 2012, March 16, 2012, and June 1, 2012. Before we may address her challenges to those orders, we must first consider whether she has timely appealed them.

"[T]he timely filing of a notice of appeal is mandatory and jurisdictional." State v. Molina, 187 N.J. 531, 540-41 (2006). "Appeals from final judgments of courts . . . shall be taken within 45 days of their entry." R. 2:4-1. Here, plaintiff filed her notice of appeal forty-five days after the June 1, 2012 order, so her appeal is timely as to that order.

Plaintiff filed her notice of appeal more than forty-five days after every other order she seeks to appeal, however. The notice was filed 227 days after the December 2, 2011 order, 217 days after the December 12, 2011 order, 150 days after the February 17, 2012 order, and 122 days after the March 16, 2012 order.

Some of these days may not count if an order was the subject of a timely motion for reconsideration. The relevant portion of Rule 2:4-3 provides:

The running of the time for taking an appeal . . . shall be tolled:

 

(e) In civil actions on an appeal to the Appellate Division by the timely filing and service of a motion to the trial court . . . for rehearing or reconsideration seeking to alter or amend the judgment or order pursuant to R. 4:49-2. The remaining time shall again begin to run from the date of the entry of the order disposing of such a motion.

 

A motion for reconsideration is timely if it is "served not later than 20 days after service of the judgment or order." R. 4:49-2. "Neither the parties nor the court may, however, enlarge the time specified by R. 4:49-2." R. 1:3-4(c).

Here, plaintiff filed her first motion for reconsideration on December 28, 2011, which was decided on February 17, 2012, a period of fifty-one days. However, even assuming that the motion was timely as to the December 2, 2011 order as well as the December 12, 2011 amended order, and applying the tolling period, plaintiff's notice of appeal was filed over 100 days too late to appeal those orders.

On April 9, 2012, plaintiff served her second motion for reconsideration, which was decided on June 1, 2012, a period of fifty-three days. That motion was untimely, however, because twenty days after the March 16, 2012 order was Thursday, April 5, 2012. Due to the Good Friday holiday and weekend, the motion was served one court day late. Rule 1:3-4(c)'s prohibition cannot be relaxed, and Rule 4:49-2's period cannot be enlarged, "regardless of extenuating circumstances." See Baumann v. Marinaro, 95 N.J. 380, 389 (1984). "[A]n untimely motion to reconsider does not" toll the time for appeal. Eastampton Ctr., LLC v. Planning Bd. of Eastampton, 354 N.J. Super. 171, 187 (App. Div. 2002).1 "Therefore, only plaintiff's appeal from the [June 1, 2012] denial of [her] reconsideration motion is timely." Potomac Aviation, LLC v. Port Auth. of N.Y. & N.J., 413 N.J. Super. 212, 222 (App. Div. 2010).2

We have the discretion to extend the time to file a notice of appeal, but that power is limited. "Enlargement of time for appeal and review shall be governed by" Rule 2:4-4. R. 1:3-4(b). Rule 2:4-4 states in pertinent part:

The time within which an appeal may be taken may not be extended except upon motion and in accordance with the following:

 

(a) The appellate court, upon a showing of good cause and the absence of prejudice, may extend the time fixed by R. 2:4-1(a) . . . for a period not exceeding 30 days, but only if the notice of appeal . . . was in fact served and filed within the time as extended.

 

Here, a thirty-day extension would not render timely plaintiff's appeal of the December or February orders, which are over 100 days late. Neither would such an extension make timely plaintiff's appeal of the March order, which is seventy-seven days late given that plaintiff's second reconsideration motion was untimely and did not toll the time for appeal. See Cabrera v. Tronolone, 205 N.J. Super. 268, 271 (App. Div. 1985), certif. denied, 103 N.J. 493 (1986).3

Moreover, "[i]t is clear that in civil actions the time to appeal may not be extended beyond the 30-day 'good cause' extension period permitted by [R. 2:4-4(a)]." Pressler & Verniero, Current N.J. Court Rules, comment on R. 2:4-4(a) (2014); In re Hill, 241 N.J. Super. 367, 370 (App. Div. 1990). The thirty-day limit on extensions is "mandatory and jurisdictional." State v. Fletcher, 174 N.J. Super. 609, 614 (App. Div. 1980). "Therefore, where an appeal is untimely, the Appellate Division has no jurisdiction to decide the merits." Hill, 241 N.J. Super. at 371; accord In re CAFRA Permit No. 87-0959-5, 290 N.J. Super. 498, 508 (App. Div. 1996), rev'd on other grounds, 152 N.J. 287, 306 (1997) (finding the appeal to be untimely). Because plaintiff's July 16, 2012 notice of appeal was untimely to appeal the December, February, and March orders, we only have jurisdiction to review the June 1, 2012 order.

III.

Plaintiff nonetheless advances two arguments why her appeal of the June 1, 2012 order encompasses review of the December, February, and March orders. First, she contends those earlier orders were interlocutory. Second, she asserts the merits of her second reconsideration motion are intertwined with the merits of the prior orders.

Plaintiff's first argument invokes the principle that "'[a]n appeal from a final judgment raises the validity of all interlocutory orders' previously entered in the trial court." Sutter v. Horizon Blue Cross Blue Shield of N.J., 406 N.J. Super. 86, 106 (App. Div. 2009) (quoting In re Carton, 48 N.J. 9, 15 (1966)). Further, "our judicial system recognizes that, with very few exceptions, only an order that finally adjudicates all issues as to all parties is a final order and that an interlocutory appeal is permitted only by leave of our appellate courts." Grow Co., Inc. v. Chokshi, 403 N.J. Super. 443, 457-58 (App. Div. 2008) (footnote omitted). A family court's post-judgment "modification of a support decree is a final judgment for purposes of appeal," because it "determines the rights of the parties on some definite and separate branch of the controversy." Adams v. Adams, 53 N.J. Super. 424, 428-29 (App. Div.), certif. denied, 30 N.J. 151 (1959); accord Saltzman v. Saltzman, 290 N.J. Super. 117, 124 (App. Div. 1996).

The judge determined the weekly amount of child support in his December 2, 2011 order, amended that order to correct a calculation error on December 12, granted a timely motion for reconsideration in February, and again amended its order on reconsideration on March 16, 2012. That March order finally determined the weekly child support amounts, resolved all issues as to all parties, and was a final order subject to motions to reconsider under Rule 4:49-2, and appeal as of right under Rule 2:2-3(a)(1). A timely appeal of the March order may have raised the validity of the December and February orders, assuming they were interlocutory. However, plaintiff failed to file a timely appeal, or even a timely motion for reconsideration, after the March order. Thus, the March order became unchallengeable. "'[I]t is a well established principle in this State that when the time for taking an appeal has run the parties to the judgment have a vested right therein which cannot subsequently be taken from them.'" Hill, supra, 241 N.J. Super. at 371 (quoting In re Pfizer, 6 N.J. 233, 239 (1951)). Accordingly, the validity of that March order, as well as the December and February orders, may not be challenged merely because plaintiff has appealed the June 1, 2012 order.

Plaintiff's second argument relies on the precept that, to the extent a motion for reconsideration "may implicate the substantive issues in the case and the basis for the motion judge's ruling on the [original] and reconsideration motions may be the same," then "an appeal solely . . . from the denial of reconsideration may be sufficient for an appellate review of the merits of the case." Fusco, supra, 349 N.J. Super. at 461. In such a situation, we may exercise our discretion to consider the merits of the original order. Potomac, supra, 413 N.J. Super. at 222; Tara Enters., Inc. v. Daribar Mgmt. Corp., 369 N.J. Super. 45, 60 (App. Div. 2004).

As set forth below, however, plaintiff's second motion for reconsideration "was limited to the single issue" of whether the child support arrears had been correctly calculated. See Fusco, supra, 349 N.J. Super. at 461. The motion did not seek review of the remainder of the issues addressed in the December, February, and March orders. Thus, the remaining issues are not implicated by the motion, and the basis of the judge's ruling on those issues is not the same as the ruling on the reconsideration motion. Therefore, it is not appropriate for us to exercise our discretion to review the merits of plaintiff's challenges to those issues decided in the December, February, or March orders.4 The only issue properly before us is the denial of plaintiff's second reconsideration motion on June 1, 2012. Accordingly, we dismiss her appeals from the orders entered December 2 and 12, 2011, and February 17 and March 16, 2012.

IV.

Plaintiff's second motion for reconsideration did not challenge the calculation of the weekly child support amounts. Rather, the motion merely asked for an order providing "that the defendant owes an additional $5,965.26 in child support arrearages and directing the Mercer County Probation Department to modify the Probation record consistent therewith." Plaintiff's certification asserted that when child support was reduced in June 2010, the Probation Department gave defendant a $2,233.53 credit for overpayments covering April 26-30, 2010. Utilizing the stage one child support figure of $377 a week adopted in the judge's March 16, 2012 order, plaintiff claimed defendant should have received only a credit of $163.15. Plaintiff's certification also claimed that the judge should not have given defendant a $2,400 credit for a direct payment he made in September 2009, alleging that he received that credit twice. Finally, plaintiff claimed that the judge wrongly assumed defendant paid $25,246.62 from April 2010 through December 2011, and contends that the correct figure for that period is $23,751.94.

Even before the December 2, 2011 order, plaintiff claimed the $2,400 credit was duplicative. The December 2, 2011 order allowed the parties to address the $2,400 credit issue by requesting a review of the account by the Probation Department. However, plaintiff's first motion for reconsideration asked the judge, rather than the Probation Department, to resolve the issue. At argument, plaintiff conceded that there was no duplicate credit for $2,400, but argued that the credit due to defendant for April 26-30, 2010, had been miscalculated at $2,233.53. At the request of both parties, the judge recalculated the arrears. The judge agreed in his March order that there was no duplicate $2,400 credit, and found that the record did "not reflect a credit of $2,233.53" to defendant. Rather, the judge found that from April 26-30, 2010, the amount charged to defendant was $1,847 too low. In the June 1, 2012 order, the judge found the undercharge should be $2,069.45, but found no other basis to reconsider his calculation of arrears.5

Plaintiff's appellate brief states that the judge improperly calculated these credits, but does not say how the calculations were erroneous. Rather, she argues that the judge should not have calculated the credits due, but instead should have ordered the Probation Department to do an audit. Plaintiff's appellate brief thus takes a position contrary to her first and second motions for reconsideration, where she requested that the calculation of these credits be done by the judge rather than by the Probation Department.

In any event, we must hew to our standard of review. We review the judge's denial of reconsideration only for abuse of discretion. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). Further, "the court has the discretion to fix the amount of the arrearages and determine whether and to what extent a support order should be enforced," Brennan v. Brennan, 187 N.J. Super. 351, 357 (App. Div. 1982), because "'the enforcement, collection, modification and extinguishment of unpaid arrearages in alimony and child support payments are matters addressed to the sound discretion of the court,'" In re Rogiers, 396 N.J. Super. 317, 327 (App. Div. 2007) (quoting Mastropole v. Mastropole, 181 N.J. Super. 130, 141 (App. Div. 1981)). A family court similarly has discretion whether to determine the amount of arrears itself, or to order an audit by the Probation Department.

We must uphold the factual findings of a trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Gnall v. Gnall, 432 N.J. Super. 129, 146-47 (App. Div. 2013) (internal quotation marks and citations omitted). Moreover, "[w]e accord particular defense to the judge's factfinding because of 'the family courts' special jurisdiction and expertise in family matters.'" Clark v. Clark, 429 N.J. Super. 61, 70 (App. Div. 2012) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). We may reverse only if there is "a denial of justice" because the family court's conclusions are clearly mistaken or wide of the mark. Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div. 2010) (citation and internal quotation marks omitted).

Here, we cannot conclude that the judge's determination of the arrears was manifestly unsupported, inconsistent with the evidence, clearly mistaken, or wide of the mark. Nor can we find that the judge abused his discretion in determining the arrears himself rather than by audit, or in denying reconsideration. We therefore affirm the order of June 1, 2012.

Affirmed in part, dismissed in part.

1 Even if we could treat plaintiff's second reconsideration motion as timely and tolling the time to appeal the March 16 order until June 22, 2012, plaintiff's July 16, 2012 notice of appeal was still filed twenty-four days too late.

2 Defendant did not raise the untimeliness of plaintiff's second motion for reconsideration before the motion judge or on appeal. However, under Rules 1:3-4(c) and 2:4-3, we cannot ignore that untimeliness in determining whether the motion tolled the time for appeal of the March order. Nevertheless, because the judge ruled on the merits of the motion, we will "address the merits of [plaintiff's timely] appeal of the reconsideration order." Fusco, supra, 349 N.J. Super. at 462 n.2.

3 Even if plaintiff's second reconsideration motion had been timely and tolling, she has not filed a motion to extend the time to appeal, or shown good cause why she waited to appeal the March order twenty-four days late.

4 Thus, we cannot consider plaintiff's complaints that the December 2, 2011 order: used defendant's 2009 income rather than his 2010 income in re-determining the stage one child support; found a $60,000 dividend was sporadic income excluded from the calculation of defendant's 2010 income; did not treat this as an extreme parental income situation; found defendant did not receive other income in kind or from scrap-metal sales; and denied her request for discovery and a plenary hearing on those issues, the dividend, and his ownership interests in Tri-Steel Fabricators, Inc. and Werosta Properties, LLC. Whatever merit those complaints may have, they were not mentioned in her second motion for reconsideration or the judge's June 1, 2012 order, so they are not properly before us.

5 To the extent that plaintiff's second motion for reconsideration "implicate[d] the substantive issues" concerning arrears raised in the earlier orders, and that "the basis for the motion judge's ruling on the [earlier] and reconsideration motions [is] the same," we exercise our discretion to review the merits of the arrears calculation in those earlier orders. Fusco, supra, 349 N.J. Super. at 461.