MARILYN BROKAW v. KENNETH FEDIRKO

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MARILYN BROKAW f/k/a

MARILYN FEDIRKO,

Plaintiff-Respondent,

v.

KENNETH FEDIRKO,

Defendant-Appellant.

________________________________

October 9, 2015

 

Argued September 16, 2015 Decided

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1044-00.

Michael J. Evans argued the cause for appellant (Weinberger Law Group, L.L.C., attorneys; Mr. Evans, on the briefs).

John J. Hays II, argued the cause for respondent (Salvaggio Law Group, L.L.C., attorneys; Mr. Hays, on the brief).

PER CURIAM

Defendant appeals from a consent order entered by the Family Part on February 28, 2014, and a March 25, 2014, order compelling him to pay attorney's fees. We dismiss the appeal of the consent order and affirm the second order.

We discern the following facts from the record. Plaintiff and defendant were divorced in July 2000, by judgment of divorce which incorporated a property settlement agreement (PSA). The PSA provided that defendant would pay child support for the parties' three children until such time as each child became emancipated. Emancipation was defined as "[g]raduation from high school . . . . If a child goes to undergraduate college, the child will be deemed unemancipated until he or she completes undergraduate college." The PSA also required both parties to contribute to post-secondary educational expenses in accordance with their then-existing abilities.

Both parties were residents of New Jersey at the time of the divorce, but shortly thereafter, defendant relocated to Illinois. Plaintiff relocated with the parties' youngest son to Pennsylvania in October 2013.

On November 6, 2013, defendant filed a motion in the Family Part seeking to emancipate his son, certifying that his son had graduated from high school. The Family Part judge granted the application as unopposed after taking limited testimony from defendant that he did not know plaintiff's current address and had been unable to obtain same, and thus served plaintiff at her last known address.

On January 22, 2014, plaintiff moved to vacate the emancipation order and reinstate child support, certifying the child had graduated from high school and had initially enrolled in a community college in New Jersey but relocated to Pennsylvania with plaintiff, where he enrolled as a full time student. She also requested the court to fix defendant's responsibility for payment of college expenses, compel defendant to provide life insurance and requested payment of counsel fees.

Defendant opposed the motion and sought enforcement of the emancipation order. On February 28, 2014, the parties entered into a consent order indicating that,

in exchange for the defendant paying $198.00 a week in child support, the plaintiff will withdraw her motion for college costs and agrees not to seek further college costs prior to January 2016 . . . . The defendant agrees to pay the [child's] health insurance premium required in excess of $250.00 per month.

Defendant also agreed to provide proof of his life insurance policy naming the child as beneficiary. The consent order resolved all issues except attorney's fees.

On March 18, 2014, the Family Part judge heard argument on the counsel fee issue and entered an order on March 25, 2014 with a statement of reasons compelling defendant to pay $4000 to plaintiff's counsel in monthly installments of $200.

Defendant appeals from both orders asserting that the consent order should be vacated because he was coerced into signing it1. We disagree.

Parties cannot consent to a judgment and then appeal. The rule allowing an appeal as of right from a final judgment contemplates a judgment entered involuntarily against a loser. Winberry v. Salsbury, 5 N.J. 240, 255, cert. denied, 340 U.S. 877, 71 S. Ct. 123, 75 L. Ed. 638 (1950); Cooper Med. Ctr.v. Boyd 179 N.J. Super. 53, 56 (App. Div. 1981). Defendant asserts that because he was self-represented he signed the consent order under duress because the trial judge showed an apparent lack of impartiality. We are not persuaded that the defendant was coerced because the judge heard sworn testimony from defendant that he signed the consent order indicating that he fully read and understood the terms and conditions of the agreement and considered it to be fair, reasonable and equitable under the circumstances and that he would abide by it. Moreover, to the extent that defendant questions the voluntariness of the agreement, he was required to first seek relief from the Family Part under Rule 4:50-1. Therefore, we dismiss the appeal of the February 28, 2014 consent order.

Defendant also appeals from the order of March 25, 2014 awarding counsel fees to plaintiff. Defendant did not consent to the order and therefore the appeal is not dismissed. However, defendant's brief fails to address the issue of attorney's fees in any meaningful way. Therefore, defendant's arguments pertaining to counsel fees are without sufficient merit to warrant discussion in a written opinion. R.2:11-3(e)(1)(E).

Affirmed.

1 Defendant also asserts that because both parties no longer reside in New Jersey the court lacked jurisdiction under the Uniform Interstate Family Support Act, (UIFSA) N.J.S.A. 2A:4-30.65 to -30.123. UIFSA provides in relevant part that a New Jersey court that issues a support order "consistent with the law of this State has continuing, exclusive jurisdiction" over such an order so long as the obligor, obligee, or child to which the order pertains reside in New Jersey. N.J.S.A. 2A:4-30.72(a)(1). However, when all parties and the child reside elsewhere, the court loses the power to modify such an order, and retains only the jurisdiction to enforce it. Youssefi v. Youssefi, 328 N.J. Super. 12, 21-22 (App. Div. 2000). Defendant argues that the court lacked jurisdiction to consider plaintiff's application seeking to unemancipate the child and restore child support. Defendant did not raise the issue below and consented to all of the relief ordered which obviated the need for the court or parties to make any evidentiary record regarding this issue. Rule 4:50-1 provides the appropriate avenue of relief under these circumstances.