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Eibling v. Eibling

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 23, 2009

EDWARD ELLIS EIBLING, PLAINTIFF-RESPONDENT,
v.
ANN MARIE EIBLING, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1307-00.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued by Telephone September 15, 2009

Before Judges Skillman and Gilroy.

On May 31, 2007, we reversed an order entered on January 31, 2006, which declared the parties' son Christopher to be emancipated and terminated plaintiff's obligation to pay child support to defendant, and an order entered on April 7, 2006, which denied reconsideration of the January 31, 2006 order, and remanded the case to the trial court for further proceedings regarding the issue of Christopher's emancipation.

After the remand, the trial court entered an order on June 7, 2007, which established a discovery schedule and set December 5, 2007 as the date for a plenary hearing on the remanded issue.

Thereafter, defendant filed a motion that sought, among other things, an order compelling plaintiff to comply with certain discovery requests. By order entered on October 25, 2007, the trial court denied this motion. Defendant filed a motion for reconsideration, which the trial court denied by order entered on December 27, 2007.

On February 11, 2008, defendant filed a notice of appeal from the October 25, 2007 and December 27, 2007 orders. On March 25, 2008, the trial court entered an order "clos[ing the case] in the court's records for lack of jurisdiction[,]" on the ground that it had been divested of jurisdiction by defendant's filing of a notice of appeal.*fn1

Despite the obvious interlocutory nature of this appeal, plaintiff did not move to dismiss and the clerk of this court failed to note that defendant could not pursue an appeal as of right from the October 25, 2007 and December 27, 2007 orders and had failed to file a motion for leave to appeal. Consequently, the appeal has been fully briefed and calendared.

"Under Rule 2:2-3a(1), an appeal as of right may be taken to the Appellate Division only from a 'final judgment.'" Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 549 (App. Div. 2007). "To be a final judgment, an order generally must 'dispose of all claims against all parties.'" Ibid. (quoting S.N. Golden Estates, Inc. v. Cont'l Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998)). Consequently, a discovery order or other interim order under which the trial court retains jurisdiction is not a final judgment appealable as of right. See House of Fire Christian Church v. Zoning Bd. of Adjustment of Clifton, 379 N.J. Super. 526, 531 (App. Div. 2005). "If an order is not a final judgment, a party must be granted leave to appeal by the Appellate Division." Janicky, supra, 396 N.J. Super. at 550.

It is clear that the discovery orders from which this appeal has been taken were not final because they did not resolve the emancipation issue that was the subject of our May 31, 2007 remand to the trial court. Nevertheless, plaintiff filed this appeal without obtaining leave in accordance with Rule 2:5-6. Moreover, plaintiff inaccurately stated in her case information statement submitted with her notice of appeal that the discovery orders "dispose[d] of all issues as to all parties."

Because this appeal was taken from interlocutory orders without leave of court, it is dismissed as interlocutory.


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