August 3, 2007
JEFFREY BAZIN, PLAINTIFF-RESPONDENT,
CHRISTINA STOLL, F/K/A CHRISTINA BAZIN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1427-97.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 17, 2007
Before Judges C.S. Fisher and Grall.
Plaintiff Jeffrey Bazin and defendant Christina Bazin were divorced on July 29, 1997. Defendant appeals from post-judgment orders concerning custody of the parties' child entered by the Family Part on August 19 and October 28, 2005, and from a child support order entered on March 24, 2006. She filed the notice of appeal on April 17, 2006. Plaintiff contends that the appeal is untimely. We agree and dismiss the appeal.
Pursuant to an agreement incorporated in the parties' final judgment of divorce, plaintiff and defendant were to share "joint legal and joint residential custody" of their child, who was born on October 23, 1991 and is now fifteen years of age.
In July 2005 defendant filed a motion seeking leave to relocate with the child to Ithaca, New York. On the basis of certifications submitted on the motion, the court found that despite a de facto reduction of plaintiff's parenting time during the preceding year, the parties continued to share both legal and residential custody.*fn1 The court further found that plaintiff failed to establish circumstances warranting modification of the custody arrangement. Accordingly, on August 19, 2005, the court entered an order denying defendant's application to remove the child and providing that plaintiff would be assigned residential custody if defendant moved to Ithaca. Defendant proceeded with her plans to relocate.
On September 19, 2005, defendant moved for reconsideration. By order dated October 28, 2005, the court denied that application. The October 28, 2005 order resolved all issues presented on the post-judgment motions. Defendant did not appeal. She moved to New York, and the child remained with her father in New Jersey.
In March 2006 plaintiff filed an application for child support. Defendant filed a cross-motion seeking a schedule for her parenting time in New York and child support. The parties agreed to a schedule for parenting time, which the court incorporated in an order of March 24, 2006, with their consent. The court ordered defendant to pay child support in a total amount of $39 per week. Defendant filed her notice of appeal on April 17, 2006. In that notice, she indicated her intention to appeal from the orders of August 19 and October 28, 2005, as well the order of March 24, 2006.
The only arguments defendant presents on appeal are related to the August 19 and October 28, 2005 orders. She contends:
I. THE TRIAL COURT FAILED TO DETERMINE THE TYPE OF PARENTING ACTUALLY EXERCISED BY THE PARTIES.
II. THE TRIAL COURT ERRED BY FAILING TO MAKE A FINDING OF CHANGED CIRCUMSTANCE WARRANTING A BEST INTEREST ANALYSIS.
III. THE TRIAL COURT ERRED BY FAILING TO CONSIDER THE CHILD'S BEST INTEREST AND BY REFUSING TO INTERVIEW THE CHILD.
IV. THE TRIAL COURT ERRED BY NOT ORDERING A PLENARY HEARING [ON REMOVAL].
V. SINCE THE ORDER TRANSFERRING CUSTODY WAS IMPROPERLY ENTERED, THE SUBSEQUENT [CHILD SUPPORT ORDER] SHOULD ALSO BE REVERSED.
Defendant's time to appeal from the custody orders expired on December 12, 2005. "Pursuant to Rule 2:4-1(a), '[a]ppeals from final judgments of courts . . . shall be taken within 45 days of their entry.' And, Rule 2:4-4(a) allows a thirty-day extension 'upon a showing of good cause and the absence of prejudice . . . but only if the notice of appeal . . . was in fact served and filed within the time as extended.'" State v. Molina, 187 N.J. 531, 535 (2006); see Pressler, Current N.J. Court Rules, comment 2.1 on R. 2:4-1 (2007). If defendant had requested and been granted an extension to appeal from the October 28, 2005 order, she would have been required to file her notice of appeal by January 31, 2006. She did not file until April 17, 2006.
Our courts have recognized exceptions warranting extension of the time within which an appeal may be filed in a narrow class of cases involving significant constitutional rights and appointed counsel. See Molina, supra, 187 N.J. at 538-42 (appeals from criminal convictions); New Jersey Div. of Youth and Family Services v. R.G., 354 N.J. Super. 202, 207-10 (App. Div. 2002) (appeals from termination of parental rights), certif. denied, 177 N.J. 491 (2003). Even in these exceptional cases, courts must consider the appellant's role in the delay, prejudice to the other party and, in cases involving the welfare of a child, the impact on the child. See R.G., supra, 354 N.J. Super. at 210.
We see no justification for treating defendant's appeal as if it were filed within time. When the order was entered, defendant moved, allowed her child to remain in New Jersey and did not appeal. Despite plaintiff's claim that defendant's appeal is untimely, she made no effort to explain her delay or move for an extension. R. 2:4-4(a).
Timely appeal in litigation involving custody is of obvious importance, and this case illustrates that point. Defendant's questions about whether the trial court erred in determining that plaintiff and defendant shared legal and residential custody in 2005 or abused its discretion by declining to interview the child have limited relevance now. Due to defendant's departure, the child has lived primarily with her father in New Jersey for nearly two years. Subsequently, defendant consented to an order granting her extensive parenting time in New York. See Winberry v. Salisbury, 5 N.J. 240, 255 (noting that there is no right to appeal from a consent order), cert. denied, 340 U.S. 877, 71 S.Ct. 123, 95 L.Ed. 638 (1950).
If there is evidence that the current custody order is no longer in the best interests of the child, defendant is free to seek modification of the order.
Under the circumstances of this case, it is appropriate to dismiss defendant's appeal as untimely.