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Donofrio v. Donofrio

August 24, 2007


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FM 02-18538-77.

Per curiam.



Submitted July 31, 2007

Before Judges Yannotti and C.L. Miniman.

Defendant Susan B. Donofrio appeals from a May 12, 2006, order denying her post-judgment application for child-support arrears, paternity testing, an accounting of monies deposited with the Bergen County Surrogate Court, and termination of a final restraining order. We affirm.

Plaintiff Stephen Donofrio and defendant were divorced on June 26, 1980. Two children were born of the marriage, Janelle, now age thirty-five, and Stephen, now age thirty. Subsequent to the divorce, temporary and final restraining orders were entered in the early 1990s prohibiting defendant from having any contact with plaintiff and members of his family. In 2004 defendant moved to lift the final restraining order, but the application was denied and the final restraining order remained in full effect. Subsequent post-judgment applications were made with respect to the judgment of divorce and were denied. Ultimately, the application that is the subject of this appeal was filed and ultimately heard on May 12, 2006.

Defendant sought to have a paternity test conducted to determine whether the children born to the plaintiff's second wife were his biological children. The purpose of the test was to establish whether those children had a right to inherit from plaintiff in the event of his death, thereby diminishing the inheritance of Janelle and Stephen from their father's estate. The Family Part judge concluded that defendant had no standing to seek an order compelling a paternity test.

The second issue related to some personal-injury settlement monies for the benefit of Janelle, which had been placed in a trust account through the Surrogate's Office. Defendant sought to compel plaintiff to provide an accounting of those monies. The judge concluded that defendant had no standing to make this application because Janelle was thirty-five years old, emancipated, and able to make the application herself if she wished to do so. In fact, the judge found on the record that the money had been disbursed to Janelle twelve years earlier. He concluded that defendant could not assert any rights on behalf of her adult daughter.

Defendant also claimed entitlement to support arrearages. The attorney for plaintiff pointed out that support payments ended twelve to fourteen years earlier, but it was his and his client's recollection that they made a motion to extinguish all arrears, that it was granted, and that plaintiff received a refund of $180 from the Probation Department, through which support had been paid. The judge's law clerk reported on the record that the file from that time period had either been destroyed or stored somewhere, but the records were no longer available. The judge concluded that there was no available record indicating that any arrears were due and that defendant had not met her burden of proof in this respect. The judge denied the application without prejudice in the event that defendant obtained the records and they supported her claim that child support was unpaid.

Finally, the judge refused to vacate a final restraining order entered under a different docket number. An order denying all relief was entered on May 12, 2006, and this appeal followed.

Defendant raises a mélange of issues far beyond the scope of the order from which she appealed and which cover twenty-five to thirty years of conflict between the parties. The scope of appellate jurisdiction is limited. Daniel v. Elmer, 113 N.J.L. 227, 229 (Sup. Ct. 1934) ("It is the general rule that . . . appellate courts have no original jurisdiction, and . . . are limited to a review of the actual proceedings of the lower court, as set forth in the record transmitted from that court."). We may only consider issues related to the order from which defendant appealed. Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001). The time for appeal from the final judgment of divorce and any trial court proceedings prior to the entry of the judgment expired forty-five days after June 26, 1980. R. 2:4-1(a). Similarly, the time for appeal from any post-judgment orders entered in this dissolution proceeding expired forty-five days after those orders were entered. Ibid.

After carefully reviewing the record in light of the written and oral arguments advanced by the parties, we conclude that the issues presented by defendant are without sufficient merit to warrant extensive discussion in this opinion, R. 2:11-3(e)(1)(A), (E), and we affirm substantially for the reasons expressed by the trial judge in his oral opinion delivered on May 12, 2006. We add the following: Defendant has no standing to request a paternity test to determine if her former husband's children from his second marriage are his biological children; only a person claiming paternity who had sexual contact with the parent of the children may do so. N.J.S.A. 9:17-46. As to the funds on deposit with the Surrogate, Janelle is the only interested party because the funds belonged to her and not to her mother. Defendant has not presented sufficient evidence to ...

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