ALISA I. OGLESBY v. KURT A. PHILLIPS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ALISA I. OGLESBY,

Plaintiff-Respondent,

v.

KURT A. PHILLIPS,

Defendant-Appellant.

________________________________________________

March 6, 2014

Submitted February 24, 2014 Decided

Before Judges Fisher and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1260-09.

Graziano & Flynn, attorneys for appellant (Ronald A. Graziano, on the brief).

The Whatley Griffin Law Firm, attorneys for respondent (Nancy E. Whatley Griffin, on the brief).

PER CURIAM

As the result of a motion to dismiss the appeal in this matrimonial matter and in furtherance of our own sua sponte inquiry into whether the trial court order in question is a final order, we recognize finality has not been achieved in the trial court, but we will deny the motion to dismiss, grant leave to appeal, and remand for further trial court proceedings.

On September 23, 2013, defendant Kurt A. Phillips filed a notice of appeal, seeking our review of a September 13, 2013 trial court order, which was amended on October 8, 2013. As a response to our Clerk's Office's inquiry regarding whether the trial court proceedings were final, plaintiff Alisa L. Oglesby moved in this court for an order "rejecting defendant['s] appeal as out of time." Plaintiff argues that defendant is actually seeking review of a trial court order entered on December 4, 2012, and that his appeal should be dismissed because it was filed more than forty-five days from entry of that order. Even if we were to agree with plaintiff's premise that the appeal of the September 13, 2013 order is a disguised appeal of the December 4, 2012 order (a question we need not decide) a review of the earlier order demonstrates it is not a final order, since a number of its provisions denied relief without prejudice1 and anticipated further litigation of matters then in dispute. Consequently, defendant was not obligated to file a notice of appeal from the December 4, 2012 order, within forty-five days of its entry, on pain of being forever barred from seeking this court's review of that order. For that reason, we deny plaintiff's motion to dismiss this appeal.

That disposition, however, does not end the problem before us because, as noted, we have sua sponte questioned whether the orders that defendant would have us review are final orders. Having examined the materials submitted by the parties, we now conclude that like the December 4, 2012 order the September 13, 2013 order, and the amending order of October 8, 2013, are also not final orders. To expedite the proceedings, we deem it appropriate not to simply deny the motion to dismiss but to sua sponte grant leave to appeal the September 13 and October 8, 2013 orders. And, in order to bring finality to the trial court proceedings, we will sua sponte remand for further proceedings, offering the following guidance and direction.

Specifically, we are concerned about the consequences in this case of the manner in which the judgment of divorce was entered and since been enforced. To be sure, many matrimonial matters are settled in the fashion that occurred here. The parties were in court, perhaps for trial, when they apparently reached an oral settlement agreement. As is the custom, the judge then assigned to the case (hereafter "the trial judge")2 heard the attorneys' description of the settlement agreement's terms and the parties' testimony that they understood and had freely and voluntarily entered into the agreement; satisfied the parties were in accord, the trial judge then heard testimony regarding the grounds for divorce and pronounced the marriage dissolved. To memorialize what had occurred, the trial judge entered a handwritten judgment with the understanding that the parties would later reduce their oral argument into writing and submit a more formal, superseding judgment of divorce. The handwritten order although difficult to read appears to state in relevant part:

The parties, through their counsel, placed an agreement upon the record. The agreement shall be incorporated into an amended final judgment of divorce within 30 days.

This judgment of divorce was entered by the trial judge on November 28, 2011 more than two years ago.3

The record on appeal further reveals that an amended judgment of divorce was submitted but never entered for reasons not at all clear to us.4 There have since been proceedings to enforce what we assume were the terms of the oral agreement or perhaps even earlier pendente lite orders, and the orders entered by the judge now assigned to the matter (hereafter "the motion judge") that defendant is desirous of appealing demonstrate that some relief was afforded, some was not, and some issues were left for another day. For example, the most recent order the October 8, 2013 order refers in part to the motion judge having previously ordered a period of discovery and, in this order, the motion judge directed the parties' participation in economic mediation; other requests for relief were "reserved" pending economic mediation. Indeed, to further confound the nature of what it is the motion judge has enforced, albeit only in part, the October 8, 2013 order expresses the motion judge's determination that he "does not consider the Final Judgment of Divorce valid."

In light of the uncertain state of this case, we find it necessary to remand for a determination of whether the parties ever reached a binding and complete settlement agreement and, if not, whether it is appropriate to vacate the existing judgment of divorce and schedule the matter for trial. It has been more than two years since the parties represented they had amicably settled their differences. The time has come for this now five-year-old case to be terminated by way of a final judgment.5

We lastly observe that the orders in question in this interlocutory appeal state that the trial court has been "enforcing litigant's rights." We assume this means the trial court has been compelling defendant's compliance with either some earlier order or orders, or some aspects of the oral settlement agreement incorporated in the earlier judgment of divorce, which the motion judge has simultaneously concluded is invalid. Accordingly, while our main concern is that a final judgment in this matter be entered as soon as practicable whether that requires a trial or a hearing to determine whether the parties actually entered into a complete and enforceable agreement and while we have not reviewed any specific aspect of the enforcement orders, in remanding we also direct the motion judge to consider whether it is fair and equitable to enforce certain aspects of an allegedly incomplete settlement agreement or some earlier pendente lite order before all aspects of the case are resolved and incorporated into a final judgment.

To summarize, we deny the motion to dismiss the appeal, grant defendant leave to appeal the September 13, and October 8, 2013 orders, and remand not only for further consideration of the September 13 and October 8, 2013 orders, but also for the further proceedings described in this order. We do not retain jurisdiction.

1We would note that in every instance in the orders of December 4, 2012, September 13, 2013, and October 8, 2013 and there are many where the judge denied relief he stated the request was "denied without prejudice." Just as we will look beyond a trial court's attempt, in crafting an order, to create finality where it does not exist, see Grow Co. v. Chokshi, 403 N.J. Super. 443 (App. Div. 2008), we will also ignore such expressions as "denied without prejudice" when inaccurate that might be invoked as the mean for avoiding the appearance of finality.

2Actually the transcript of the proceedings revealed that the judge was then assigned to the Civil Part but had been enlisted or volunteered to help out the Family Part that day.

3The divorce action was commenced in April 2009, nearly five years ago.

4The record on appeal does not reveal the date of that submission or whether it was within the time prescribed by the November 28, 2011 judgment.

5We are not unmindful that the entry of a final judgment is often not the end of a trial court's involvement in many matrimonial matters. Family court calendars are well-congested with "post-judgment" motions and proceedings. But we think it unusual that a childless marriage of moderate duration (the parties were married in 1997) should have eluded entry of a final judgment of divorce at such a late date in the proceedings.