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Underwood v. Iovino

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 15, 2008

MARIE UNDERWOOD, PLAINTIFF-RESPONDENT,
v.
WILLIAM IOVINO, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FD-13-2126-04B.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 22, 2008

Before Judges Grall and Chambers.

Defendant William Iovino appeals from the order dated May 9, 2007, denying his motion for reconsideration. His appeal concerns issues of child support and child care payments, visitation, and the child's last name. Since the court appears to have entered only a temporary award of child support pending further discovery, this appeal is interlocutory, and hence is not appealable as of right under Rule 2:2-3(a). We will grant leave to appeal nunc pro tunc on parenting time issues, and dismiss the balance of the appeal so that the trial court may resolve the remaining issues. Further, we note that defendant, who is appearing pro se, raises certain issues for the first time in this appeal. Defendant must first present those issues to the trial court by motion and obtain a ruling before those issues may be presented to the appellate court.

I.

Plaintiff Marie Underwood and defendant are the parents of a child born in 2004. An order entered on July 6, 2004, gave the parties joint legal custody of the child, with plaintiff having primary residential custody. By order dated May 24, 2005, defendant was required to make child support payments of $185 per week plus $13 in arrears and to contribute one-half of the child care costs not to exceed $75 per week.

In June 2006, plaintiff removed the child from day care and thereafter hired a live-in babysitter. She then brought an application in July 2006, to increase defendant's share of the child care costs, which she claimed were $213 per week.*fn1 Her papers also raised a variety of visitation issues.

Defendant filed a cross-motion seeking an exchange of financial information so that child support could be recalculated due to changed circumstances. Plaintiff was now working, and defendant's landscaping business had sustained a substantial loss because defendant was on active military duty. Defendant also sought a reallocation of day care expenses and health insurance premium costs. In addition to other visitation issues, he sought a one-hour allowance for drop-off and pick-up time.

The motions were heard on November 13, 2006. Testimony was taken from plaintiff, and certain financial documents and information were presented to the court. The court then calculated support based on the guidelines, but clarified that the order it was putting into place was only temporary pending further discovery. The order dated November 13, 2006, required defendant to pay $325 a week in child support. The order required defendant to provide copies of his tax returns for the past three years. The order also contained various provisions concerning visitation which are also the subject of this appeal.

On December 4, 2006, defendant filed a motion for reconsideration.*fn2 Defendant's application for reconsideration of the financial issues and visitation issues was denied by order dated May 9, 2007. His application with respect to counseling and certain telephone numbers was granted. The order of May 9, 2007, also indicated in various sections that information for such items as plaintiff's employment, proof of payments, child care visits and other matters "may be obtained through discovery." The trial court issued a written statement of reasons explaining its decision.

Defendant raises the following issues on appeal:

POINT I.

DAY CARE: PLAINTIFF DID NOT PROVE HER WORK RELATED DAY CARE EXPENSES (ie work schedule); COURT NEVER FACTORED A CREDIT FOR EXPENSES DEFENDANT ALREADY PAID PRIOR TO COURT ORDER DATED NOVEMBER 13, 2006; DEFENDANT'S RIGHTS AS A JOINT CUSTODIAL PARENT HAVE BEEN VIOLATED

POINT II.

ENFORCEMENT OF COURT ORDER FOR PLAINTIFF TO SIGN CHANGE OF JULIA'S LAST NAME FROM IOVINO-UNDERWOOD TO IOVINO

POINT III.

TELEPHONE ACCESS TO SPEAK WITH PLAINTIFF, DEFENDANT'S DAUGHTER, AS WELL AS CAREGIVER TO DAUGHTER SHOULD BE MADE MORE ACCESSABLE

POINT IV.

PICKUP AND DROP-OFF TIME WINDOW FOR DEFENDANT PREVENTS HIM FROM FINISHING WORK DAY, ALTERNATE PICKUP ARRANGEMENTS NECESSARY

POINT V.

PLAINTIFF HAS NOT MADE CLEAR TO THE COURTS HER ACCUSATION AGAINST ERNIE, NOR HAS MADE PROOF OF. THE COURTS REASONNING [sic] FOR BARRING ERNIE FROM BEING PRESENT DURING DEFENDANT'S VISITATION IS NOT SUBSTANTIATED AND RATHER INFRINGES UPON THE DEFENDANT'S VISITATION RIGHTS

POINT VI.

PLAINTIFF HAS ON NUMEROUS OCCASIONS INTERFERRED WITH MY VISITATION RIGHTS, WHY IS IT, AFTER ALL THE EVIDENCE PROVIDED TO THE COURTS IN PREVIOUS CERTIFICATIONS, THAT NO PUNITABLE [sic] ACTION FOR THE FUTURE WAS CONSIDERED

POINT VII.

HOW COULD THE COURT HAVE MADE A FINAL DECISION FOR CHILD SUPPORT AND CONSIDERED AN INCREASE BASED ON THE FACTS PROVIDED

II.

This appeal is interlocutory because adjudication of the child support issues has not been concluded by the trial court. When fixing the child support award on November 13, 2006, the trial court indicated that the award was temporary, pending exchange of further financial information. In addition, the order of May 9, 2007, denying defendant's request for information on plaintiff's employment and seeking financial documents from her, states that this information "may be obtained through discovery." Since further discovery was anticipated on the issue of child support, the child support award is not a final order.

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. See R. 2:2-3(a) and R. 2:5-6(a). Here, no leave to appeal has been granted pursuant to Rule 2:2-4. Further, the issue of child support payments is not ripe for appellate review since all of the financial information has not been reviewed, and the trial court has not made its final determination as to the proper amount.*fn3

Plaintiff's contention that he has not been given credit for the child care payments of $75 a week that he made directly to plaintiff from August through November, 2006, must also be resolved by the trial court. In addition, defendant's request that plaintiff provide proof of payment of day care and child care expenses and his request for credits for overnight parenting time and other adjustments must be addressed as part of the financial adjustments considered by the trial court.

III.

When an appeal is interlocutory, a grant of leave to appeal 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 v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 550 (App. Div. 2007). A grant of leave to appeal nunc pro tunc "is most extraordinary relief." Frantzen v. Howard, 132 N.J. Super. 226, 227-28 (App. Div. 1975). We have decided to grant leave to appeal nunc pro tunc regarding the issues of parenting time discussed below because the trial court appears to have made final decisions on these issues and because they are important.

The November 13, 2006, order prohibits defendant from overnight parenting time at defendant's mother's residence and provides that the mother's boyfriend may not be present during defendant's parenting time. In deciding the motion for reconsideration, the trial court declined to vacate this provision. The record contains no factual basis for such a prohibition. Plaintiff had included in her motion a request that the child not be taken to the house of defendant's mother's boyfriend due to a hearsay statement about inappropriate conduct on his part. However, plaintiff did not testify or present any evidence on this issue below, but merely complained that the man was not a blood relative, was not appropriate, and should not be around her daughter. Thus, there is no credible evidence to support the trial court's order that the child should not be in the presence of this man or in his house. When explaining this decision, the trial court stated in its May 9, 2007, statement of reasons that this man has "no rights" as to this child. That of course is true, but the order does not deal with this man's rights. It restricts the father's parenting activities and prevents him from taking the child to various family events and celebrations when this man is present. Since the provision of the order is not supported by any credible evidence, it is reversed and vacated.

In his appeal papers, defendant indicates that he is no longer on active duty and that since he is operating his landscaping business, he requires an adjustment in his pick-up and drop-off times. It appears that plaintiff agreed to a half-hour adjustment in defendant's pick-up time although that change is not reflected in any order. We remand this issue for reconsideration in order that the trial court may determine the appropriate pick-up and drop-off time in light of this situation and enter the requisite order.

IV.

We note that in this appeal defendant seeks to compel plaintiff to execute documents necessary to change the child's last name to Iovino in accordance with orders dated July 6, 2004, and July 13, 2005. Defendant also contends that plaintiff is not complying with the terms of the order concerning his parenting time and telephone contact with the child and that he has been denied contact with the babysitter. These issues are not properly before this court at this time. Since these issues were not raised below, defendant must first seek relief from the trial court. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (stating that appellate courts will decline to address issues not properly presented below "unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest").

Dismissed in part, reversed in part, and remanded in part.


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