These cross-applications arise in a post-judgment setting while some of the provisions of the final judgment of divorce are being considered by the Appellate Division. They require an initial determination of the extent to which R.2:9-1(a) deprives a trial court of jurisdiction to resolve issues not directly involved on appeal. Both parties urge a trial court resolution, but recognize a general perception that an appeal deprives the trial court of all power to act. I conclude, despite that perception, that the trial court retains jurisdiction to determine matters not directly involved in the Appellate proceeding and, moreover, conclude that it is the trial court which initially decides if the matter presented to it is collateral to the Appellate proceeding.
Specifically, these parties contested an action which resulted in a final Judgement of divorce entered on November 20, 1992. That Judgement resolved issues of custody, visitation, equitable distribution and support. Cross-Appeals were filed although thereafter all appeals were dismissed with the exception of plaintiff's appeal of the custody provisions of the judgment. Those provisions awarded joint legal custody and name defendant as the primary physical custodian, rejecting plaintiff's request for alternating physical custody on a weekly basis. On March 16 and 22, 1993, while the appeal was pending, the parties filed cross motions seeking orders (1) requiring defendant to cooperate in enrolling the children in a specific summer baseball program, (2) prohibiting alienation of the children's affections by either party, (3) modifying visitation by decreasing the time plaintiff spent with the children, and (4) requiring participation in a counselling program. Before the issues may be decided substantively, a decision must be made as to my authority to consider them at all. I am satisfied that I have that authority.
My Conclusion is based on considerations of interpretation and practicality. I begin with R.2:1-9(a) which provides:
(a) Control Prior to Appellate Disposition. Except as otherwise provided by R.2:9-3, 2:9-4 (bail), 2:9-5 (stay pending appeal), 2:9-7 and 3:21-10(d), the supervision and control of the proceedings on appeal or certification shall be in the appellate court from the time the appeal is taken or the notice of petition for certification filed. The trial court, however, shall have continuing jurisdiction to enforce judgments and orders pursuant to R.1:10 and as otherwise provided. The appellate court may at any time entertain a motion for directions to the court or courts or agencies below or to modify or vacate any order made by such courts or agencies or by any Judge below.
The first sentence of the rule is ambiguous because it does not define the term "proceedings on appeal" over which the appellate court has exclusive control. That phrase may relate to the issues before the appellate court or it may relate to the captioned controversy from which the appealed issues arose. The term "proceeding" is itself ambiguous. In a general sense it embraces everything that occurs in the judicial progress of a suit; in a particular sense, it applies to a specific application for relief. Black's Law Dictionary, 1368 (4th Ed.Rev. 1968). See also Webster's Dictionary, 293 (1978) which defines the term generally as the carrying on of a case or action at law and specifically as a legal step or measure. Thus, if R.2:9-1(a) uses the term "proceeding on appeal" generally, an appeal divests the trial court of all jurisdiction to decide issues in the captioned litigation from which the appeal arose including jurisdiction to deal with issues which are completely unrelated to the issues being considered by the appellate court. If, on the other hand, the rule uses the term in its specific sense, the trial court retains jurisdiction to deal with collateral issues.
The third sentence of the rule may remove some of the ambiguity. It provides that "the appellate court may at any time entertain a motion . . . to modify or to vacate any order made . . . by any Judge below." While it is conceivable that the language refers to a motion made to amend or vacate orders entered in enforcement proceedings, it is much more reasonable to assume that it refers to orders made in proceedings unrelated to the appellate issues. This follows from the way in which the rule is constructed.
The rule vests control in the Appellate Division over "proceedings on appeal". By its terms, it does not apply to trial court actions relating to bail, stays pending appeal, applications for temporary relief in administrative proceedings, or reconsideration of a criminal sentence. Each of those categories clearly relate to the issues pending before the Appellate Division but the rule exempts them from appellate control. The rule then continues to provide that the trial court may also act to enforce its orders (including, presumably, those on appeal) and "as otherwise provided". The phrase "as otherwise provided" cannot refer to areas specifically exempted (as are bail and stays) because those areas were just described as being the province of the trial court and not subject to the rule; it cannot refer to enforcement actions which are subject to the rule because those enforcement actions are additional to and, hence, distinct from, those areas "otherwise provided." It clearly suggests a class of proceedings between the same parties which are not "proceedings on appeal". This can only be a class of proceedings between the parties to the appeal but which do not involve the issues on appeal. It is in such areas that a motion for review may be brought in the pending appellate process without the necessity of filing a notice of appeal and proceeding pursuant to R.2:5-1. From this, it follows that the trial court may make an order (in an unrelated area) which may be reviewed by the Appellate Division in this pending appeal.
Two trial court opinions have dealt with this issue and have reached contrary Conclusions. Morrison v. Morrison, 93 N.J. Super. 96, 225 A.2d 19 (Ch.Div. 1966) considered an application for counsel fees made after an appeal of the underlying custody determination had been filed. The court concluded that the predecessor of R.2:9-1(a), whose language was identical to the current rule, did not divest jurisdiction to hear matters which are "collateral to, and independent of, the subject matter of the appeal . . . and (which) in no way would destroy or impair it". 93 N.J. Super. 96, 103-104.
D'Atria v. D'Atria, 242 N.J. Super. 392 (Ch.Div. 1990) involved a post-judgment application for relief which dealt with issues not specifically addressed in the Final Judgment of Divorce which was before the Appellate Division and which apparently would not affect the issues presented there at the time of application. The trial court felt that R.2:9-1(a) and considerations of "comity" required the trial court to defer action, at least until directed to do so by the Appellate Division. 242 N.J. Super. 392, 405.
The Morrison analysis appears in accord with the general rule accepted by the overwhelming majority of jurisdictions to consider the issue. The general rule has been formulated as follows:
As a general rule the perfection of an appellate proceeding, whether by appeal, writ of certiorari, writ of error, or bill of exceptions, transfers to the appellate court exclusive jurisdiction of the matters sought to be reviewed, and the trial court cannot do anything which will adversely affect the power of the appellate court to review, affirm, reverse, or modify the order, judgment, or decree appealed from. On the other hand proceedings for review do not ordinarily affect the trial court's jurisdiction as to matters collateral to the subject of the appeal . . . Annotation, "Trial ...