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Walker v. Walker


March 20, 2008


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-660-04.

Per curiam.


Submitted March 4, 2008

Before Judges Fuentes and Grall.

Defendant Arthur Walker and plaintiff Gail Walker were married on October 8, 1977, separated in January 2002, and divorced on January 8, 2004. The judgment of divorce incorporates the Walkers' property settlement agreement (PSA), which was executed on December 10, 2003. The Walkers have two children; their daughter is now emancipated and their son attends college.

Defendant appeals from post-judgment orders denying his request to reduce alimony, setting child support for his son, denying his request to modify a provision of the PSA designating beneficiaries of his 401K and life insurance policy, enforcing a provision of the PSA distributing credit card debt, and, according to defendant, failing to equitably distribute plaintiff's pension, which she acknowledges that she neglected to disclose at the time of the divorce.

This case presents a preliminary and dispositive question about jurisdiction. We conclude that the appeal should be dismissed.

This appeal is interlocutory and the Rules that warrant dismissal of such appeals are clear. This court considers appeals from final orders of a trial court and other orders expressly designated as final for purposes of appeal. R. 2:2-3(a)(1),(3). "To be a final judgment, an order generally must 'dispose of all claims against all parties.'" Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 549-50 (App. Div. 2007) (quoting S.N. Golden Estates, Inc. v. Cont'l Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998)). This "final judgment rule, reflects the view that 'piecemeal [appellate] reviews, ordinarily, are [an] anathema to our practice.'" Id. at 550 (quoting S.N. Golden Estates, supra, 317 N.J. Super. at 87, quoting Frantzen v. Howard, 132 N.J. Super. 226, 227-28 (App. Div. 1975)).

If an order is not final, or among those orders expressly designated as final for purposes of appeal, a party must seek leave to appeal from the Appellate Division. R. 2:5-6(a). A grant of leave to appeal from an interlocutory order is left to the discretion of this court, and that discretion is exercised sparingly and "in the interest of justice." R. 2:2-3(a)(1); R. 2:2-4; see State v. Reldan, 100 N.J. 187, 205 (1985); Janicky, supra, 396 N.J. Super. at 550.

This court cannot ignore its responsibility to determine whether interlocutory review is warranted simply because the parties agree to an appeal from the interlocutory order, or erroneously characterize the order as final or fail to understand this basic rule. See Hudson v. Hudson, 36 N.J. 549, 553 (1962) (agreement); Parker v. City of Trenton, 382 N.J. Super. 454, 457 (App. Div. 2006) (filing of a notice of appeal from an order that was interlocutory). It is clear that we will not decide an appeal from an interlocutory order merely because the appellant's notice of appeal mischaracterized the order, the respondent did not move to dismiss, and the appeal was "fully briefed." Vitanza v. James, 397 N.J. Super. 516, 519 (App. Div. 2008) (recognizing but declining to follow cases in which the court has granted leave to appeal nunc pro tunc "just because [the appeal] is fully briefed" on the ground that the practice invites disregard of the Rules); see also Parker, supra, 382 N.J. Super. at 458 (same).

The order from which defendant appeals does not resolve all issues between the parties. Although the issues defendant raises on this appeal include a point in which he contends that the trial court erred by failing to "equitably distribute plaintiff's pension," the trial court's order does not finally resolve that issue. Paragraphs four and five of the order of March 22, 2007, from which defendant appeals, make it clear that the trial court anticipated further proceedings relevant to distribution of the pension. The pertinent provisions of the order are as follows:

4. Defendant's request for further information on all of plaintiff's pension and retirement benefits at the Girl Scouts and the value of those benefits is granted. Within [forty-five] days of the [o]rder, plaintiff shall obtain and furnish to defendant information that indicates the nature, value and types of such retirement benefits as of November 23, 2003, the date of the complaint in this matter, and as of December 10, 2003, the date of the PSA. The information to be provided by plaintiff shall include, without limitation, the values of such benefits on those dates and which portion of such benefits were vested as of those dates.

5. Within [ninety] days of his receipt of the information that plaintiff is required to furnish under the preceding paragraph, defendant may move for further relief under paragraph 5.1 C of the PSA relating to any retirement benefits not disclosed or addressed in the PSA.

Defendant's notice of appeal, filed by appellate counsel, clearly misstates the character of the order from which he appeals. The notice of appeal includes a question that asks: "Have all issues as to all parties been disposed of in this action in the Trial Court or Agency?" The response given on defendant's behalf is "Yes." That response is not accurate, and it violates the duty of candor an attorney owes to the tribunal. See R.P.C. 3.3.

Defendant may take issue with the trial court's decision to have him move for further relief after obtaining the relevant discovery, which is an argument he makes on appeal. Defendant cannot bring this issue before us, however, without seeking leave to appeal or waiting until the court issued a final order.

This is not a case in which it would be appropriate for this court to grant leave to appeal nunc pro tunc; that "is extraordinary relief." Frantzen v. Howard, 132 N.J. Super. 226, 227-28 (App. Div. 1975). This case demonstrates the deleterious impact of a haphazard grant of such extraordinary relief. If we were to consider this appeal, we could not resolve the pension issue. Defendant, at best, could obtain an order remanding the matter to the trial court for distribution of plaintiff's pension. But that is the very action the trial court was apparently poised to consider upon completion of relevant discovery. Thus, nothing could be gained by this improper appeal, and if we were to grant leave to appeal nunc pro tunc, defendant will have the right to file a second appeal involving the same issue. "The interruption of the litigation at the trial level, by the taking, as here, of an unsanctioned 'appeal,' disrupt[ed] the entire process and [was] wasteful of judicial resources." Hallowell v. American Honda Motor Co., Inc., 297 N.J. Super. 314, 318 (App. Div. 1997) (quoting Frantzen, supra, 132 N.J. Super. at 227-28). Defendant's premature appeal merely added extra steps to this litigation. Further, we are satisfied that none of the other issues raised on this appeal are of the sort that warrant a grant of leave to appeal, no less grant of the extraordinary relief of leave to appeal nunc pro tunc.

Because there will be at least one additional motion in the trial court, we caution the trial court that our decision to dismiss this interlocutory appeal should not be taken as approval of routine denial of requests for oral argument on substantive motions. That practice is not consistent with Rule 5:5-4(a). See Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997).

The appeal is dismissed. No costs.


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