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Dimarino v. Dimarino

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 3, 2009

JAMES C. DIMARINO, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
SARAH E. DIMARINO, DEFENDANT-APPELLANT/CROSS-RESPONDENT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-968-96.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 2, 2009

Before Judges Collester and Grall.

Defendant Sarah E. DiMarino appeals from paragraph 1 of the December 21, 2007 order of Judge John Tomasello denying reconsideration of the court's order of November 2, 2007 denying defendant's request for counsel fees. Plaintiff James C. DiMarino has filed a cross-appeal, also from the denial of counsel fees.

The parties were divorced in the mid-1990s and since that time there have been multiple applications before the Family Part, mostly relating to issues of child support and parenting time. A plenary hearing was scheduled to commence on September 11, 2007, but the hearing was aborted by a settlement of all issues except counsel fees sought by each party against the other. On November 2, 2007, Judge Tomasello denied counsel fees to both parties. Subsequently, he issued a written opinion detailing his reasons. The last paragraph of Judge Tomasello's August 4, 2008 opinion reads as follows:

This Court, in the exercising of its discretion, has no desire to reward, with counsel fees, the disingenuous and dilatory tactics employed by either side. Rewarding such fees would only exacerbate future problems and therefore counsel fees are denied.

Defendant filed a motion for reconsideration on November 26, 2007, twenty-four days after the November 2, 2007 order. Judge Tomasello denied reconsideration on the counsel fees issue on December 21, 2007. The notice of appeal was filed on February 4, 2008, forty-five days after the December 21, 2007 order.

Pursuant to the Rules of Court, the appeal from Judge Tomasello's November 2, 2007 order was required to be filed within forty-five days. Rule 2:4-1(a). While the time for appeal is tolled by the timely filing and service of a motion for reconsideration to the trial court, Rule 2:4-3(e) specifies that "the remaining time shall again begin to run from the date of an order disposing of such a motion."

The motion for reconsideration was denied on December 21, 2007, and the appeal from the November 7, 2007 order was no longer stayed and had to be filed no later than twenty-one days after December 21, 2007. It was not filed until February 4, 2008, forty-five days after the December 21, 2007 order denying reconsideration, but twenty-four days later for the underlying order of November 2, 2007. Therefore, the appeal on the counsel fees issue was untimely filed. Moreover, since plaintiff's cross-appeal is argued as contingent on our entertaining the appeal, we dismiss the appeal and cross-appeal. In any event we find no abuse of discretion by Judge Tomasello in denying counsel fees to both parties.

Appeal and cross-appeal dismissed.

20090803

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