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Kalra v. Prasad

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 21, 2008

KANWAL KALRA, PLAINTIFF-RESPONDENT,
v.
NIHARIKA PRASAD, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-866-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 8, 2008

Before Judges Fuentes and Grall.

Defendant Niharika Prasad appeals from a post-judgment order entered in this action for divorce. Because the appeal is interlocutory and was filed without obtaining a grant of leave from this court, we dismiss the appeal.

Plaintiff Kanwal Kalra and defendant were married on December 24, 1998. They have one child who was born in 2002. The parties were divorced by judgment entered on January 16, 2006. The judgment incorporates their agreement, which includes a provision requiring them to work with Ms. Cynthia Johnson, a parenting coordinator, to develop a "comprehensive parenting time plan." They agreed to utilize Ms. Johnson's services for a period of no longer than one year. Ms. Johnson's appointment was continued by post-judgment order entered on November 28, 2006.

In March 2007, plaintiff moved to expand his parenting time in accordance with a schedule recommended by Ms. Johnson, and defendant moved for an order terminating Ms. Johnson's appointment. On May 1, 2007, the trial court entered the order from which defendant appeals. It provides:

1. The appointment of the parent coordinator, Cynthia Johnson, shall be and is hereby continued.

2. The parties shall return to Cynthia Johnson to address the issue of Thursday overnights and any other issues and/or aspects of a parenting plan. At the end of sixty days, if not resolved, Cynthia Johnson shall make a report to the court and either party may make an application to the court.

This order does not resolve the issues raised by the motions. It directs the parties to return to Ms. Johnson for a period of no more than sixty days and permits either party to return to court if additional sessions with Ms. Johnson during that period do not resolve the issues.

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). In general, a final order is one that disposes of all claims. See Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 549-50 (App. Div. 2007). The Rule that limits the right of appeal to final orders "reflects the view that 'piecemeal [appellate] reviews, ordinarily, are [an] anathema to our practice.'" Id. at 550 (quoting S.N. Golden Estates, Inc. v. Cont'l Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998). If an order is not final, or among those expressly designated as final for purposes of appeal, a party must seek leave to appeal from this court. 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. 2:2-4; 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. The contrary representation by defendant's attorney included on the notice of appeal filed on behalf of defendant is not accurate. The trial court's order does nothing but defer determination of the issues raised by both parties until after a sixty-day period of additional consultation with Ms. Johnson.

Defendant apparently wishes to take issue with the trial court's decision to have her move for further relief after expiration of the sixty-day period of additional consultation. She cannot bring that issue before this court, however, without seeking leave to appeal or awaiting the trial court's resolution of the issues.

This is not a case in which it would be appropriate for us to exercise this court's authority to grant leave to appeal nunc pro tunc; that "is most extraordinary relief." Frantzen v. Howard, 132 N.J. Super. 226, 227-28 (App. Div. 1975). The issues raised involve facts that are disputed. If not already resolved by the parties, the issues must be decided by the trial judge after a plenary hearing. See Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982). As we read the record and the trial court's order of May 1, 2007, the time for deferral of a judicial decision has passed. If the parties have not resolved the issues after working with Ms. Johnson for more than two years, they are entitled to a hearing on the disputed facts related to their respective applications on parenting time.

The appeal is dismissed.

20080421

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