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Steele v. Steele

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 22, 2008

DEBRA STEELE, PLAINTIFF-RESPONDENT,
v.
MICHAEL STEELE, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1083-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 7, 2008

Before Judges Stern and C. L. Miniman.

Defendant appeals from an order of August 25, 2006 denying his post-judgment motion for relief of judgment under Rule 4:50-1(c) and from an order of October 20, 2006 denying reconsideration. The motions were denied based on the Family Part's lack of jurisdiction because of a pending appeal. Defendant argues that the Family Part had jurisdiction to hear the applications.

This appeal was filed on November 21, 2006 while the appeal from a March 17, 2006 order denying defendant's post-judgment applications was still pending. Our opinion, Steele v. Steele, No. A-4143-05T1 (App. Div. April 13, 2007), noted that the appeal was out of time to attack the second amended judgment of December 21, 2005 and, in any event, provided an insufficient basis for upsetting the results of the trial which resulted in the judgment.

Defendant insists that "trial courts do, indeed, have continuing jurisdiction to entertain a Rule 4:50-1 motion during a pending appeal." However, irrespective of whether defendant is right or wrong, the appeal is now moot and became moot when we filed our opinion on April 13, 2007. Unfortunately, neither party filed a motion for a remand or for summary disposition while that appeal was pending or upon its disposition to permit the Rule 4:50 motion to be heard.

At oral argument on this appeal, we were advised that another appeal is now pending. Presumably the Family Part would conclude it was without jurisdiction to hear the Rule 4:50 application while the new appeal (A-6148-06T1) is pending.

Defendant indicated his personal willingness to dismiss that appeal if it would expedite the hearing of his R. 4:50 motion.

As we advised the parties we would do, we have reviewed the issues in the new appeal. It is from an order entered July 6, 2007, which denied defendant's motion for a new trial. Among other things, that order denied defendant's application for a new trial "based upon new medical evidence, . . . pursuant to Rule 4:49 and Rule 4:50-1." The defendant believes that a post-judgment disability determination of the Social Security Administration affected his ability to try his matrimonial case as well as the result. The Family Part obviously entertained that application on the merits because the prior appeal had been resolved.

We now direct that any other pending Rule 4:50 application not considered because of the pending appeal be heard and decided in the Family Part within thirty days. If either party is aggrieved by the determination, he or she may file an appeal therefrom within fifteen days of the entry of an order. Any such appeal shall be processed without any extension and within all time limits required by the Rules Governing the Courts of New Jersey. That appeal, if any, shall be calendared back-to-back with A-6148-06T1.

We should not be understood to suggest that we favor or anticipate any result on any unresolved motion pending in the Family Part. That is for the Family Part to decide on substantive or procedural grounds. It is to state, however, that as much finality as possible must be achieved as soon as possible, and we afford the Family Part any necessary jurisdiction, see R. 2:9-1, to decide what is before it, so we can decide with finality the issues to be presented to us.

So ordered. No costs. We do not retain jurisdiction except for A-6148-06T1.

20080122

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