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Belgacem v. Veneziano

Decided: December 10, 1986.

FRANCES COLOMBO HADJ BELGACEM, PLAINTIFF-APPELLANT,
v.
ALFONSO VENEZIANO, DEFENDANT-RESPONDENT



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County.

O'Brien and Skillman.

Per Curiam

We have consolidated these two appeals for purpose of disposition since they involve the same controversy. In Docket # A-5308-84T1, we reverse and remand. We dismiss Docket # A-1253-85T1.

Frances Colombo Hadj Belgacem (Belgacem) is the mother of Laura Colombo, born January 29, 1971. By judgment dated

January 7, 1972, defendant Alfonso Veneziano (Veneziano) was adjudged to be the father of the child and ordered to pay $15 per week child support by the Passaic County Court. Two prior applications to the Juvenile & Domestic Relations Court in Bergen County were dismissed. An application by plaintiff seeking additional support was dismissed on October 29, 1982. The other, brought by the Bergen County Welfare Board seeking repayment of assistance, was dismissed on April 13, 1983.

On July 9, 1984, plaintiff filed a complaint with the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, bearing Docket # FM-00423-85. In this complaint, she sought additional child support and an order compelling defendant to provide medical, dental, hospital and prescription drug expenses for the child.*fn1 Defendant filed an answer on August 15, 1984. Scheduled trial dates were repeatedly adjourned, partially because of defendant's efforts to learn whether the child could be included in the medical and hospital plan provided by his employer. Finally, plaintiff filed a motion for pendente lite relief, to which defendant filed a responding certification accompanied by a proposed order providing that the matter be scheduled peremptorily for hearing and denying the requested pendente lite relief.

On June 12, 1985, on its own motion, the trial judge dismissed the complaint as having been filed pursuant to R. 5:7 instead of R. 5:6. Plaintiff's appeal, filed on July 26, 1985, was assigned Docket # A-5308-84T1. Pursuant to R. 2:5-1(b), the trial judge filed an amplification of his reasons for the dismissal of plaintiff's action. He said:

In brief, as set out in my letter of June 12, 1985, the complaint herein was improperly filed. The mechanics involved in transferring the matter to the proper docket and creating a new docket number presented administrative difficulties which seemed much greater than what would be involved in a simple dismissal of the prior proceeding and the filing of a new complaint. Since there was no statute of limitations problem, since the Bergen County Legal Services

would not be required to pay a filing fee, and since service in a summary support proceeding is simple and uncomplicated (and is in fact attended to by the Court Office) it did not seem to me that the procedure chosen by me presented any difficulty or hardship to the plaintiff. As noted, in fact it seemed -- and it still seems -- the simplest means of attending to what was in any event no more than an administrative problem. Had there been some substantive difficulty of which I was not aware, I would have been more than happy to consider any such problem, and a request for reconsideration based thereon, had any such matter been presented to me.

In addition to her appeal from this order, plaintiff filed a new complaint on June 25, 1985 pursuant to R. 5:6, which was assigned Docket # FD-02-3035-86A.*fn2 On motion of defendant, this complaint was dismissed without prejudice by order of October 7, 1985. Plaintiff's cross-motion for a stay pending appeal on Docket # A-5308-84T1 was denied. An earlier order vacating a previous dismissal and restoring the matter to the trial calendar was vacated. Once more plaintiff filed an appeal, which was assigned Docket # A-1253-85T1.

This case exemplifies the reason for R. 1:13-4, directing that matters be transferred to the proper court where a determination is made that the court is without jurisdiction. Chief Justice Vanderbilt expressed the concept ...


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