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Lambert v. Lambert


January 31, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FM-02-2336-04.

Per curiam.


Submitted: December 3, 2007

Before Judges A.A. Rodríguez and C.L. Miniman.

Defendant John Lambert appeals from a December 15, 2006, order of the Family Part entered without prejudice denying his application to (1) appoint an attorney for two of the children born of his marriage to plaintiff Lynne Lambert, (2) terminate the services of the court-appointed therapeutic monitor, (3) allow unsupervised and overnight visitation, (4) require joint decision making, (5) transfer his probation account from New York to New Jersey and recalculate child support and (6) award him counsel fees. Because the order was interlocutory, we dismiss this appeal.

The facts are not particularly relevant to the procedural status of this appeal and we do not recite them in full. Suffice it to say that John and Lynne were divorced on June 22, 2001, and the judgment of divorce (JOD) allowed visitation contingent on defendant continuing to take his medications and remaining under the care of his physician so long as his doctor felt that treatment was appropriate. The JOD also provided that John was to provide his physician with a release authorizing the physician to listen to any concerns Lynne might have. He was also to authorize his physician to send a monthly report to Lynne confirming that defendant was continuing his medication and recommended course of treatment. There was apparently little or no compliance with these various requirements and visitation has been very problematic ever since, sometimes because Lynne refused visitation and sometimes because John neglected to avail himself of scheduled visitation. John had visitation with the children during the second half of 2005, but the eldest child expressed concerns about the lack of privacy in John's home and the manner in which he spoke to the younger child. The court-appointed therapeutic monitor asked John to make an appointment with her to discuss these concerns, but he refused to do so because he felt the therapeutic monitor was not qualified. Visitation again stopped in January 2006.

After almost a year of not seeing his children, John filed a flurry of applications seeking visitation as the 2006 holiday season approached. The judge heard oral argument on December 15, 2006, and explained at the beginning of the argument that he did not take testimony on the return date of motions and orders to show cause. He stated that if he was going to have testimony, he would schedule a hearing.

With respect to the application to terminate the services of the court-appointed therapeutic monitor, the judge was not inclined to do so at that point. He instructed John to go back to the monitor and talk to her to work out some of the problems. The judge also said, if John wanted to recommend another therapeutic monitor, he would entertain it but the current monitor was the one with whom the judge was familiar. Once he got a report from the monitor, he would be in a better position to decide the issues. He also said that if the monitor could not work out the visitation issues, then he would have "to make the call." The judge ordered the immediate resumption of visitation and said he would entertain an application by John to review the matter in four weeks. Furthermore, he specifically said to John "I didn't deny your application, I said without prejudice. I know I'm going to hear this matter again[.]" The judge went on to say, "I need more information before I start telling people [what to do.]"

Defendant asserts, correctly, that this appeal is from an interlocutory order. To be appealable as of right, an order must be final as to all parties and all issues. R. 2:2-3; Yuhas v. Mudge, 129 N.J. Super. 207, 209 (App. Div. 1974). An order that anticipates future proceedings, as here, is not final. Wein v. Morris, 388 N.J. Super. 640, 652 (App. Div. 2006). There is a strong policy against piecemeal review. Vitanza v. James, ___ N.J. Super. ___ (App. Div. 2008) (slip op. at 3). Lynne's attorney should have moved to dismiss this appeal as interlocutory before it was fully briefed. Id. (slip op. at 5).



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