On appeal from Superior Court of New Jersey, Chancery Division-Family Part, Ocean County, FD-15-529-07N.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 6, 2008
Before Judges Payne and Newman.
A consent order for child support and supervised visitation was entered between plaintiff, Nancy Haugh, and defendant, Steven Senerchia, on or about June 28, 2007. Thereafter, Senerchia moved for reconsideration, and as a result, a further order was entered on November 16, 2007, which provided in relevant part:
1. The court denies defendant['s] and plaintiff's request for a change in defendant's child support obligation. The court finds defendant & plaintiff failed to show a change of circumstances since this court's last order on 6/28/07.
2. The court denies defendant['s] & plaintiff's request to change the parenting time schedule as the parties have failed to show it is in the minor child's best interest and have failed to show that there has been a change in circumstances.
3. The court denies plaintiff's request to increase defendant's child support obligation and for reimbursement for other expenses as plaintiff did not attach any documentation to her motion to prove the alleged incurred expenses on behalf of the minor child.
On December 20, 2007, Senerchia filed an untimely appeal only from the court's June 28, 2007 order. See R. 24-3(e). On appeal, Senerchia claims that he was under the influence of oxycodone at the time the June order was entered, prescribed following open heart surgery approximately one month earlier to correct mitral valve prolapse. Senerchia argues that, as a result, he was incompetent to enter into the agreement with respect to child support and supervised visitation.
Because Senerchia is proceeding pro se, and because he might have been confused as to the proper date for appeal, given his intervening motion for reconsideration, we might be inclined to consider the substance of his argument, despite its untimely presentation and the absence of a showing of good cause. See Appeal of Syby, 66 N.J. Super. 460, 464 (App. Div. 1961) (requiring good cause, lack of prejudice, and a substantial and meritorious issue). Cf. Bowman v. Bambara, 28 N.J. Super. 92, 98 (App. Div. 1953) (recognizing litigant's lay status as grounds for modification of default judgment). However, this appeal presents a more fundamental defect: There is no evidence that the argument now raised by Senerchia was presented to the Family Part judge either in June or in November. Indeed, plaintiff Haugh commences her brief with the following statement: "Defendant makes no reference to being heavily medicated at the time of the court hearing and thereafter. It was not until I received appeal on April 28, 2008 did I ever hear anything about prescription medication taken by the defendant during the trial." We thus decline to address defendant's argument, Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Moreover, were we to consider Senerchia's proofs, we would find no ground to vacate the judge's June order, since Senerchia does not offer any evidence of when he took the oxycodone or the dose taken, and he offers no expert opinion with respect to the probable effect of the medication, as taken, on Senerchia's mental faculties.
In her brief, plaintiff Haugh makes various arguments in support of her claim that she should be granted sole residential custody of the parties' child and that child support be increased to $156 per week plus $10 arrears as the result of Senerchia's continued failure to document his financial status. However, because Haugh did not cross-appeal, we decline to consider her arguments.