January 22, 2009
CARLTON C. BROWN, JR., PLAINTIFF-RESPONDENT,
ELEANORE BROWN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FM-06-11856-91.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 27, 2008
Before Judges Reisner and Sapp-Peterson.
In this post-judgment action, defendant Eleanore Brown appeals from the September 21, 2007 order modifying plaintiff, Carlton C. Brown's $800 weekly alimony obligation. We dismiss the appeal as interlocutory.
The parties were married in 1955 and were divorced in 1995. The parties executed a property settlement agreement (PSA) in which it was agreed that plaintiff would pay to defendant $800 in weekly alimony, based upon plaintiff's then earnings of $200,000 from his roofing business. The PSA provided that alimony could be revisited when plaintiff retired. In April 2007, plaintiff filed a motion seeking to "vitiate" his alimony obligation based upon his reaching age sixty-five, his retirement and poor health. Defendant opposed the motion, arguing that: (1) plaintiff's income-producing assets were greater than hers; (2) although plaintiff was no longer an officer/shareholder of his roofing company, this simply meant the court should review the parties' respective circumstances; (3) plaintiff's doctor's letter regarding plaintiff's health was unsworn; and (4) plaintiff's health had not deteriorated.
The court, by order dated April 20, 2007, denied plaintiff's motion without prejudice, but directed the parties to "conduct discovery over the next sixty (60) days, which will consist of depositions of the parties and their accountants." The order provided further that after sixty days, either party could apply to the court for further relief.
Plaintiff again moved for relief. This time the court granted the motion, reducing alimony to $200 weekly. Despite being afforded the opportunity to take depositions, defense counsel acknowledged that no depositions had been taken. Specifically, defense counsel represented to the court that she had attempted to schedule depositions in writing and via telephone, but received no response. She argued that since plaintiff brought the motion, he was obliged to "engage in discovery" but had not done so.
After considering the respective arguments, the court expressed that it was satisfied plaintiff demonstrated a prima facie case of changed circumstances and reduced alimony. However, the order memorializing the court's decision called for the parties to conduct further discovery: (1) "Deposition of all parties and accountants shall take place November 13, 2007, if required"; (2) "All other discovery to be completed within 10 days." The Notice of Appeal was filed November 7, 2007.
Given the language of the order, it does not appear that the court intended that it be treated as a final order, appealable as of right. See R. 2:2-3(a)(1). As such, the order is interlocutory for which leave to appeal was neither sought nor obtained. See R. 2:2-4. Thus, we dismiss the appeal as interlocutory. Vitanza v. James, 397 N.J. Super. 516, 517-18 (App. Div. 2008). Our determination does not, of course, preclude defendant from filing an appeal as of right once discovery is completed and the court enters a final order.
The appeal is dismissed. No costs.
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