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Stinga v. Stinga


October 18, 2007


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-1071-98.

Per curiam.


Submitted October 2, 2007

Before Judges Grall and Chambers.

In this post-divorce application, defendant, Enrique Stinga, appeals from the portions of the order entered on August 9, 2006, that retroactively increased his child support obligation, required him to contribute to the cost of a car for his son, and directed him to provide an accounting of the liquidated marital stock options and place the proceeds into a joint bank account. Since the order in question and the record below indicate that the payments in the order are "subject to proofs and accounting," no final decision has been made. Accordingly, this appeal is dismissed as interlocutory.

The parties were married on June 28, 1969, and have three children: Michelle, born in 1975; Brian, born in 1980; and Patrick, born in 1988. They were divorced on January 18, 2000, and their property settlement agreement, dated October 19, 1999, was incorporated into the Judgment of Divorce.

In May 2006, defendant moved for a declaration that Brian was emancipated as of January 1, 2003, for termination of his support obligation regarding Brian, and for a modification of his child support obligation for the remaining child. (The oldest child had already been emancipated.) Further, defendant sought a refund of $4,426.42, representing his overpayment of child support for Brian.

Plaintiff filed a cross motion requesting an accounting of the marital stock options, liquidation of the remaining stock options, and fifty percent of the proceeds from the stock options. The cross motion also sought financial information from defendant and a recalculation of his child support for the remaining unemancipated child, Patrick.

Oral argument before the trial court was held on June 23, 2006. The court determined that further information needed to be provided, and the matter was rescheduled. Mistakenly, an order was entered that day purportedly deciding the motions. That order was vacated on August 2, 2006, and the matter was heard again on August 9, 2006.

The record indicates that on August 9, 2006, the attorneys and the judge conferred extensively in chambers, analyzing the financial information and calculating the various adjustments in payments between the parties. The matter was then discussed on the record. At the end of that hearing on the record, the court entered an order dated August 9, 2006, declaring that Brian had become emancipated on January 1, 2003, providing defendant with a retroactive modification of support, and giving defendant a credit, in the amount of $3,932, for the support he had paid on behalf of Brian after the emancipation. The order also increased the child support for the unemancipated child, Patrick, to $287 per week, retroactively from January 1, 2003, to December 31, 2005, and, after that date, set the support award at $264 per week. With respect to the child support payments for Patrick, the order expressly stated, however, that these amounts "are without prejudice and subject to proofs and accounting to be produced by defendant's attorney within 90 days unless [an] extension [is] necessary."

The order also required defendant to pay plaintiff the sum of $7,364, which apparently, he undisputedly owed her from some other obligation. The order further provided that plaintiff owed defendant the sum of $2,707 for tuition reimbursement. However, with respect to this tuition reimbursement, the order stated that "[t]his sum must be confirmed by way of accounting within 90 days unless extension is necessary. This amount is awarded without prejudice . . . ."

The order went on to require defendant to provide an accounting of the marital stock options exercised since the property settlement agreement was reached, and the order made provision for a joint checking account for monies from any liquidated stock options. Finally, the order required the parties together to set aside $10,000 for the purchase of a car for Patrick, which the record indicated he needed in order to commute to college.

Defendant raises the following issues on appeal:

POINT I The Appellate Court should stay the August 9, 2006 order of the trial court.

POINT II The trial court erred in retroactively modifying child support contrary to N.J.S.A. 2A:17-56.23a.

POINT III The trial court erred in retroactively modifying child support in a manner and amount contrary to the terms of the parties' Property Settlement Agreement.

POINT IV The trial court erred in its misapplication of the New Jersey Child Support Guidelines.

POINT V The trial court erred in compelling defendant-respondent to contribute to the cost of a $10,000 car for the parties' child.

POINT VI The trial court erred in compelling defendant-appellant to immediately liquidate future options, without any proofs that same would benefit and not detriment, the minor children.

This appeal is not properly before this court. Under the court rules, a litigant may take an appeal as of right from an order of the trial court only when a final order has been entered resolving the dispute. R. 2:2-3(a)(1). Here, defendant has filed an appeal as of right from the order of August 9, 2006, yet many of the provisions of the order are subject to further accountings, as noted above. Indeed, at numerous times at the August 9, 2006 hearing, the court below stated that the numbers being placed on the record were subject to a subsequent accounting.

At the beginning of the hearing, when discussing the difficulty in determining the amount of defendant's income, the court noted: the problem in trying to determine the income of Mr. Stinga was to extract from his gross income figures the amount that was recognized or realized as a result of exercising those particular options . . . .

[T]here is no clear cut accounting of when and how his options were exercised. How much was yielded. How much was used for educational purposes.

The judge then indicated that the attorneys and he were assuming the figures on the options provided by defense counsel were accurate. The judge went on to state that "everything that we are saying about these figures today is all subject to a subsequent accounting in detail being prepared as to what has happened to these options over the years." Later in the hearing, when addressing defendant's claim for a credit for certain tuition payments, the court noted that until there was a full accounting on the stock options, there could be no closure on all of the credits. He went on to say a number of times that the figures were without prejudice. At the end of the hearing, the judge expressly noted the lack of finality in his ruling, stating that if the numbers discussed today are inaccurate either party can come back and he would work it out. Thus, the figures set forth in the August 9, 2006, order were not final.

We recognize that some of the issues raised in the appeal are not dependent on the accountings referenced in the order of August 9, 2006, and on the record, such as the $10,000 for the car for Patrick or the decision to allow a retroactive increase in child support. However, where a litigant seeks to appeal an interlocutory decision of the trial court, a notice of motion for leave to appeal must be filed by the litigant. R. 2:5-6(a). That was not done here. Further, piecemeal appeals are discouraged in light of the judicial policy of preferring "a single and complete review" at the end of the case. State v. Reldan, 100 N.J. 187, 205 (1985); S.N. Golden Estates, Inc. v. Continental Cas. Co., 317 N.J. Super. 82, 88 (App. Div. 1998). For that reason, interlocutory appeals are granted only "sparingly." Id.

We further note that defendant contends that the lower court erred in compelling defendant to liquidate immediately the stock options. However, as plaintiff points out, the order does not require this. The order does provide for an accounting on the stock options and for the opening of a joint account to hold any proceeds from liquidated stock options.

Finally, the defendant's request for a stay of the order pending appeal should have been made by motion to the trial court and then, if denied, by motion to this court. R. 2:9-5(b). That issue is, of course, now moot.



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