AUDRA K. SANDERHOFF v. DAVID T. MILLER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1314-08T1

AUDRA K. SANDERHOFF,

Plaintiff-Respondent,

v.

DAVID T. MILLER,

Defendant-Appellant.

________________________________________________________________

December 8, 2009

Submitted November 30, 2009 - Decided

Before Judges Baxter and Coburn.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Middlesex County, Docket No. FD-12-1328-08T.

R. Douglas Hoffman, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant David T. Miller appeals from a September 30, 2008 order that denied his motion to: vacate a judgment of divorce and child support orders that had been entered against him in the District Court of Douglas County, Nebraska; and dismiss the child support enforcement action filed against him by the State of Washington, in New Jersey, pursuant to an interstate compact. Defendant asserts that his motion should have been granted because the District Court of Omaha, Nebraska lacked personal jurisdiction over him because plaintiff Audra Sanderhoff never served a summons and complaint for divorce, or a motion for enforcement, upon him. Because the September 30, 2008 order denying defendant's motion is not a final judgment, and defendant has not sought leave to appeal such interlocutory order, we dismiss this appeal.

I.

Plaintiff and defendant were married in Bellevue, Nebraska on October 16, 1994. Their daughter was born approximately five months later in 1995. The parties separated in early 1997, at which time defendant moved to Colorado,1 where he remained until approximately April 25, 1997.

On March 21, 1997, plaintiff filed a divorce complaint in Douglas County, Nebraska and sent the complaint, and an accompanying summons, to defendant at his place of employment in Carter Lake, Iowa. Defendant maintains, however, that at the time the summons was sent to his place of employment in Iowa, he was living in Nebraska. Although defendant does not say so directly, it is evident that after he left the marital home, he did not advise plaintiff of his whereabouts.

On May 1, 1997, a Nebraska judge entered an order permitting substitute service by publication in newspapers in Denver, Colorado. By then, according to defendant, he had already left Colorado to move to upstate New York. He was never served with the divorce complaint. A hearing on plaintiff's complaint for divorce was conducted in Douglas County, Nebraska in August 1997. As a result of that hearing, the judge awarded custody of the parties' daughter to plaintiff and directed defendant to pay $507.52 per month in child support. Defendant asserts, although he submits no documentary proof to support his claim, that he was incarcerated in Indiana for four years between July 15, 1997 and July 15, 2001.

Between 1997 and 2007, plaintiff made a number of attempts to garnish defendant's wages because of the child support arrearages, but was unsuccessful, because by the time the order of garnishment reached defendant's employer, he was no longer employed there. On January 18, 2008, the Washington2 State Support Registry forwarded to New Jersey a request for enforcement of the Nebraska child support orders. The request from the State of Washington listed defendant's arrears as $60,902. The Superior Court of New Jersey, Chancery Division, Family Part of Middlesex County sent defendant a summons to appear for an enforcement hearing on March 3, 2008.

After receiving that summons, defendant moved to vacate the Nebraska child support orders and dismiss the enforcement petition that had been initiated by the State of Washington. He asserted that he had never been served with the divorce complaint, had no notice of the child support order, and the orders in question were consequently null and void. On September 30, 2008, the Family Part issued an order denying defendant's motion to vacate and dismiss, finding that defendant had not demonstrated an entitlement to such relief. Unquestionably, the September 30, 2008 order was not a final order because it neither directed defendant to pay any arrearages nor granted plaintiff any relief. Without moving for leave to appeal, and without seeking certification from the Family Part that the order was final for purposes of appeal, defendant filed a notice of appeal with this court from the September 30, 2008 order.

II.

"[A]n appeal as of right may be taken to the Appellate Division only from a 'final judgment.'" Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 549 (App. Div. 2007) (citing R. 2:2-3(a)(1)). "[W]ith very few exceptions,3 only an order that finally adjudicates all issues as to all parties is a final order" appealable as of right. Grow Co. v. Chokshi, 403 N.J. Super. 443, 457-58 (App. Div. 2008). If the order is not a final order, the appeal is interlocutory and will be "permitted only by leave of our appellate courts." Id. at 458.

When an order is not final, we will review it on appeal only if leave to appeal has been granted. R. 2:2-3(b). Despite the provisions of Rule 2:2-3(b), defendant never sought leave to appeal the September 30, 2008 order, which was an interlocutory order because it did not grant final relief or dispose of all issues presented. Grow, supra, 403 N.J. Super. at 457-58. Instead, it merely denied defendant's motion to dismiss. As we observed in Grow, we will not overlook such a clear violation of the Rules of Court:

[W]e have encountered circumstances where a party blatantly appealed an interlocutory order without seeking our leave. . . . In the past, our tendency was to grant leave to appeal out of time . . . when the matter had been briefed and fully submitted for a disposition on its merits. More recently, citing our burgeoning calendars, we have declared our intention to be less tolerant when an aggrieved party has mistakenly filed a notice of appeal and the opponent has mistakenly failed to move for dismissal. We again iterate that appellate resources are too scarce for this court to be so forgiving of fundamental departures from the finality rule.

[Id. at 459-60 (internal citations omitted).]

Interlocutory appeals are disfavored "because of the strong policy 'that favors an uninterrupted proceeding at the trial level with a single and complete [appellate] review[.]'" Id. at 461 (quoting S.N. Golden Estates, Inc. v. Cont'l Cas. Co., 317 N.J. Super. 82, 88 (App. Div. 1998)). For that reason, we will resist a party's efforts to "'foist jurisdiction upon this court' over what is . . . an interlocutory order." Ibid. (quoting CPC Int'l, Inc. v. Hartford Acc. & Indem. Co., 316 N.J. Super. 351, 366 (App. Div. 1998), certif. denied, 158 N.J. 73 (1999)).

Thus, because the order under review is interlocutory, defendant has not sought leave to appeal, and has failed to provide any reason for us to depart from our well-accepted practice of declining to review such orders where no permission has been sought, we dismiss this appeal as interlocutory.

1 Defendant's brief does not specify where in Colorado he resided.

2 Plaintiff was residing in Washington, and accordingly, filed her request for enforcement of the support order there.

3 Rule 2:2-3(a) specifies that the following orders are appealable as of right even though they are not final: enrolling a defendant into the pretrial intervention program over the objection of the prosecutor, compelling the production of a material witness, those certified as final for purposes of appeal by a trial court, appointing a receiver, awarding custody in a bifurcated matrimonial action, granting preliminary approval in an adoption action, and granting or denying a motion to extend the time to file a notice of tort claim. None of those exceptions is relevant here.