GEORGE OSBORNE v. KYMBERLY OSBORNE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2795-09T2

GEORGE OSBORNE,

Plaintiff-Appellant,

v.

KYMBERLY OSBORNE,

Defendant-Respondent.

_________________________________

December 20, 2010

Submitted December 13, 2010 - Decided

Before Judges Grall and C.L. Miniman.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Passaic County, Docket No. FM-16-1500-08.

Einhorn, Harris, Ascher, Barbarito & Frost,

attorneys for appellant (Jennie L. Osborne,

of counsel and on the brief).

Larry Bruce Goodman, attorney for respondent.

PER CURIAM

Plaintiff George Osborne appeals an order requiring him to contribute $17,500 towards the counsel fees of his ex-wife, defendant Kymberly Osborne. We dismiss the appeal as untimely.

The procedural history relevant to our disposition can be summarized as follows. The trial court entered the final order awarding counsel fees on December 16, 2009, but did not include a statement of reasons with the order. Plaintiff filed his notice of appeal on February 17, 2010. On April 13, 2010, defendant's counsel sent a letter to the trial judge asking him to file a statement of reasons directly with this court, a self-corrective action permitted by Rule 2:5-1(b). The trial judge did so on May 5, 2010.

Plaintiff had forty-five days following the entry of the order awarding counsel fees, or until January 30, 2010 to file his notice of appeal. R. 2:4-1(a). Because January 30 was a Saturday, his deadline was extended to the following Monday, February 1. R. 1:3-1.1 His notice of appeal was therefore filed sixteen days out of time. While this court may extend a party's time to appeal by thirty days, it may only do so "upon motion [and] . . . on a showing of good cause and absence of prejudice." R. 2:4-4(a). Plaintiff has not made a motion to have us accept his notice of appeal out of time, and he has not made any attempt to show good cause for and absence of prejudice from his late filing. Although defendant has not objected to plaintiff's untimely notice, "we can see no justification at all for [plaintiff's] delay in allowing the time to appeal to expire." Cabrera v. Tronolone, 205 N.J. Super. 268, 271 (App. Div. 1985), certif. denied, 103 N.J. 493 (1986).

1 While Rule 2:4-3(e) tolls the time for appeal when a party makes a motion for additional findings of fact under

Rule 1:7-4, the request for additional findings of fact was made here on April 13, after the appeal was filed, and well after the time to file an appeal expired.