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Herega v. Figueroa

November 7, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1451-05E.

Per curiam.


Submitted: August 20, 2008

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

Defendant Neyda L. Figueroa appeals from a final order entered on August 17, 2007, denying her motion for reconsideration of certain paragraphs contained in an order entered on May 29, 2007. We reverse and remand for further proceedings.

Defendant and plaintiff Mark A. Herrega, Sr., were married on December 5, 1996, and two children were born of the marriage, M.H., on July 24, 1997, and E.H. on August 29, 2000. They were divorced by judgment entered on May 12, 2005. The judgment of divorce incorporated a November 1, 2004, Property Settlement Agreement (PSA) that resolved all issues between the parties. Sometime thereafter, defendant filed a post-judgment motion*fn1 and on May 4, 2007, plaintiff cross-moved seeking multiple forms of relief. The motions were argued on May 29, 2007, and a final order deciding each issue was entered that day.

On June 18, 2007, defendant prepared a notice of motion returnable on July 20, 2007, for reconsideration of six paragraphs in the earlier order, only two of which are at issue here--¶¶ 11 and 13. Those two paragraphs provide:

11. The Defendant's request to amend Paragraph 7 of the [PSA] and require the Plaintiff to pay for 100% of the cost of the nanny is denied. The Defendant shall be responsible for 50% of a $250.00 weekly rate, or $125.00. The parties shall adjust the account.

13. Pursuant to Paragraph 7 of the Property Settlement Agreement, the Defendant shall pay the Plaintiff for 50% of the ongoing nanny expenses incurred by the Plaintiff from April 17, 2006 at the $125.00 rate, within thirty (30) days.

Plaintiff thereafter filed a cross-motion*fn2 and both motions were heard on August 17, 2007, at which time the final order under appeal was entered.

Defendant filed her notice of appeal on October 1, 2007, limiting her notice of appeal to the order of August 17, 2007, denying reconsideration. Defendant contends on appeal that the Family Part judge erred in (1) failing to modify custody or, at a minimum, hold a plenary hearing on the issue; (2) failing to retroactively modify the defendant's obligation to contribute to the expense of the nanny; and (3) awarding counsel fees to plaintiff on the motion for reconsideration.

Defendant did not seek reconsideration of the paragraph in the May 29, 2007, order that denied a change of custody. Neither did she appeal the May 29, 2007, order in her notice of appeal. Furthermore, in her Case Information Statement she described the judgment or decision being appealed as one dated November 1, 2002. As to the proposed issues to be raised on appeal, defendant identified five proposed issues relating to the denial of child support to be paid to defendant, the requirement that defendant contribute to the cost of the nanny, the award of counsel fees to plaintiff, the modification of the parenting schedule without a best-interest evaluation, and the denial of an order to compel equitable distribution. No mention is made of the May 29, 2007, denial of a change in custody.

"[I]t is clear that it is only the judgment or orders designated in the notice of appeal which are subject to the appeal process and review . . . ." 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004) (citing Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66, (App. Div.), aff'd o.b., 138 N.J. 41 (1994)). We also addressed this issue in Fusco v. Board of Education of Newark, 349 N.J. Super. 455 (App. Div.), certif. denied, 174 N.J. 544 (2002).

There, as here, the appellant filed a notice of appeal from an order denying reconsideration, but did not specifically appeal the underlying order sought to be reconsidered. Id. at 462-62. The limited basis for reconsideration of the summary-judgment order dismissing Fusco's handicap- and age-discrimination claims was newly discovered information in the form of a Notice of Determination by the New Jersey Department of Labor, Unemployment and Disability Insurance Services; namely, that Fusco quit his job for good cause attributable to the work. Id. at 458-59. We observed,

We are mindful of the fact that in some cases a motion for reconsideration may implicate the substantive issues in the case and the basis for the motion judge's ruling on the summary judgment and reconsideration motions may be the same. In such cases, an appeal solely from the grant of summary judgment or from the denial of reconsideration may be sufficient for an appellate review of the merits of the case, particularly where those issues are raised in the CIS.*fn3 However, that is not what occurred here. In his notice of motion, as well as his notice of appeal and CIS, Fusco's counsel made his position crystal clear. Fusco's motion for reconsideration was limited to the single issue of whether the Unemployment Determination provided a valid basis as "newly ...

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