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Rodriguez v. Kassem


February 6, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-1682-05.

Per curiam.



Submitted January 7, 2009

Before Judges Axelrad and Messano.

Defendant Hossam Kaseem appeals from 1) "the court order imposing $1412.08 in counsel[] fees"; 2) the order of November 2, 2007 that denied defendant's motion to "set aside that order"; and 3) the January 4, 2008 order that denied his "motion for relief from judgment and reconsideration." Defendant's failure to comply with our Rules has made our ability to review his asserted grounds for relief impossible. We therefore dismiss his appeal. R. 2:8-2.

We gather from the rather confused procedural history in defendant's brief that he and plaintiff, Rosa Rodriguez, were married in September 1992, and one child was born of the marriage. In February 2005, plaintiff filed a domestic violence complaint and obtained a final restraining order (FRO), the exact date of which is undisclosed. We denied defendant's appeal and his motion for reconsideration. Defendant's petition for certification was denied, as was his motion for reconsideration before the Supreme Court.*fn1

Pursuant to the FRO, defendant was granted only supervised visitation with his child. He moved for reconsideration of this condition on no less than three different occasions in 2006, and each time was apparently denied. Defendant made a fourth application in the summer of 2007 contemporaneous to his wife filing for divorce. Plaintiff's counsel served defendant with a demand to withdraw the application pursuant to Rule 1:4-8, but defendant apparently refused.

A hearing was conducted on August 3, 2007, though we have not been provided with any transcript of the proceedings. The judge entered an order that 1) denied defendant's "motion to vacate [a] prior order and/or relief from judgment pursuant to R. 4:50"; 2) denied without prejudice defendant's motion to "change visitation from supervised . . . to unsupervised"; 3) prohibited discussion of the litigation with the parties' child; and 4) denied plaintiff's request for counsel fees. Three days later, defendant filed an order to show cause seeking the end of supervised visitation.

The judge converted defendant's order to show cause into a motion and heard oral argument on the matter on August 17, 2007. We have not been provided with the transcript of those proceedings. The order that followed, filed on August 27: 1) denied defendant's motion to recuse the judge; 2) denied defendant's motion for "clarification of the previous order [of] August 3, 2007"; 3) denied with prejudice defendant's motion for reconsideration of the August 3 order; and 4) awarded plaintiff counsel fees in the amount of $1412.08.*fn2 Defendant's motion for reconsideration was heard on November 2, 2007, and denied. The judge ordered that the time for payment of the counsel fee award should be set by the judge now handling the matrimonial matter. Defendant again moved for reconsideration, and was denied as set forth in the judge's January 4, 2008 order.

"[I]t is only the judgments or orders . . . designated in the notice of appeal which are subject to the appeal process and review." Pressler, Current N.J. Court Rules, comment 6.1 on R. 2:5-1(f)(1)(2008)(collecting cases). Pursuant to Rule 2:5-1(f)(2), defendant was required to annex to his notice of appeal and case information statement "a copy of the final judgment, [or] order . . . appealed from[.]" Although defendant's notice of appeal indicated he was appealing from an order imposing counsel fees in the amount of $1412.08, i.e., the August 27, 2007 order, only the November 2, 2007 order and the January 4, 2008 order were attached. For this violation alone, it would be within our discretion to dismiss defendant's appeal. See Pressler, supra, comment 6.2 on R. 2:5-1(f)(2)(noting that "[s]anctions for non-compliance . . . includ[e] rejection of the notice of appeal or dismissal of the appeal"). However, defendant included in his brief the August 27, 2007 order that imposed counsel fees. Therefore, we do not dismiss defendant's appeal based solely upon this transgression of our Rules.

Rule 2:5-3(b) requires the appellant, with certain exceptions, to file transcripts with this court of "the entire proceedings in the court . . . from which the appeal is taken." Failure to provide the transcript is grounds for dismissal of the appeal, or at least "a separable portion thereof." Pressler, supra, comment 2 on R. 2:5-3(b); Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004).

Defendant did not include a transcript of the August 17 proceedings. The order imposing counsel fees was the result of that hearing. Pursuant to Rule 2:8-2, we may, on our own motion, dismiss an appeal because of procedural defects, particularly when the deficiencies make it impossible to review the issues on their merits. In re Zakhari, 330 N.J. Super. 493, 495 (App. Div. 2000); Pressler, Current N.J. Court Rules, comment 1.2.8 on R. 2:8-2 (2008). We are clearly unable to review the merits of the judge's determination of the issue. Therefore, to the extent defendant appeals from the August 27, 2007 order, his appeal is dismissed.

Defendant has included transcripts from the proceedings on November 2, 2007 and January 4, 2008 which resulted in the two orders actually attached to his notice of appeal. However, it is difficult to discern from the transcript of the November hearing what defendant's argument regarding reconsideration actually was. At one point in the proceedings, defendant actually left counsel table in mid-argument, exclaiming, "I'm out of the argument," and took a seat elsewhere in the courtroom.*fn3

Defendant's appellate appendix includes only the face sheet of his notice of motion, some correspondence to the court from plaintiff's counsel that does not contain any substantive argument, and one page of an apparent multi-page reply defendant filed one day before the argument. We cannot discern from this limited record what the essence of defendant's argument for reconsideration was, except that he objected to plaintiff's opposition which was filed late.*fn4 We gather from the judge's comments in the transcript that defendant had failed to furnish anything new and that reconsideration was not, therefore, appropriate. However, Rule 2:6-1(a)(1)(I) requires the appellant to include in his appendix, "such other parts of the record, excluding the stenographic transcript, as are essential to the proper consideration of the issues[.]" Filed documents that accompanied defendant's motion, and the opposition filed by plaintiff, are essential to our consideration of the issues, and the failure on defendant's part to include them in his appendix lead us to conclude his appeal on this issue should likewise be dismissed. See, Pressler, supra, comment 1 on R. 2:6-1(a)(collecting cases).

The same is true with respect to defendant's appeal of the January 4, 2008 order. Once again, the transcript of the proceedings has been provided, but defendant's appendix includes only a letter from plaintiff's counsel seeking an adjournment of the hearing, and the order itself. We glean from the transcript that defendant sought relief under Rule 4:50-1, though he apparently continued to argue that he was not provided proper notice of the August 17, 2007 hearing and should have been granted an adjournment at that time. He insisted that plaintiff never made an application for counsel fees. In short, the transcript alone cannot provide us with the ability to meaningfully review whatever issues defendant claims to have raised. His appeal of the January 4, 2008 order is likewise dismissed.

Lastly, defendant's brief asks us to "over turn (sic) the court's ruling of April 15[,] 2008" and "vacate the judgment which was entered against [] defendant as [a] result of non payment [of counsel fees][.]" These orders are not included in defendant's notice of appeal, nor have transcripts of the proceedings or any record of what occurred below been provided. We refuse to consider the request.

Appeal dismissed.

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