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Salerno v. Salerno


October 19, 2009


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1660-05.

Per curiam.


Submitted September 23, 2009

Before Judges Graves and Lyons.

Plaintiff, Michele Salerno, appeals a provision in a November 26, 2008, order which was entered in response to a post-judgment matrimonial motion made by defendant, Louis Salerno. The facts relevant to our disposition of this appeal are as follows.

Plaintiff and defendant were married on November 15, 1997. There was one child born of the marriage on June 1, 1998. A judgment of divorce was entered on May 24, 2007. In connection with the entry of the judgment of divorce, the parties reached, and placed on the record, a global settlement. One of the terms in the settlement required defendant to pay $800 monthly in child support.

On October 22, 2008, defendant filed a motion seeking to decrease his child support, enforce his supervised visitation rights, correct the amount of certain monthly payments required by the Property Settlement Agreement, and change the court's record of his current address.

Following oral argument on November 26, 2008, the motion judge granted defendant's application to enter a change of address on the court records, correct the monthly alimony amount, and establish supervised therapeutic visitation.

With respect to the modification of child support, the motion judge noted that where there is a "substantial change" in a supporting spouse's financial condition since the entry of the judgment of divorce, a change in child support may be had. The court noted though that "financial documentation must be evaluated in order to determine whether the changed circumstance has substantially affected the supporting spouse's ability to support himself and the [plaintiff]." The motion judge stated that he was satisfied that defendant had demonstrated changed circumstances, but he noted that he had no information regarding plaintiff's financial condition and, therefore, was not in a position to recalculate child support. Accordingly, the judge entered an order on November 26, 2008, which provides, with respect to child support, that "[d]efendant's request for modification in child support is hereby GRANTED. The parties shall be given a 30 day discovery period whereby Plaintiff shall provide her financial information, including Case Information Statement, 2007 tax returns, W-2s, and three recent pay stubs." It is from this provision of the order that plaintiff appeals. Plaintiff's notice of appeal was filed on December 5, 2008.

In her appeal, plaintiff argues that the agreed upon child support was non-modifiable and that the reason for any decrease in defendant's child support obligation was brought about by his acts alone and, therefore, the motion judge's order is improper.

It is important to note at the outset that the motion judge's order does not set a new amount of child support. Rather, the court notes that it does not have before it all the relevant information needed to make such an assessment. Implicit in the court's order is the fact that not only does it not have all the relevant information, but it has neither seen what discovery between the parties may produce nor has it had an opportunity to entertain the parties' arguments relative to same.

Under our Court Rules, "appeals may be taken to the Appellate Division as of right... from final judgments of the Superior Court trial divisions...." R. 2:2-3(a)(1). Additionally, "the Appellate Division may grant leave to appeal, in the interest of justice, from an interlocutory order of a court...." R. 2:2-4. The initial question which confronts us, therefore, is whether paragraph one of the November 26, 2008, order is interlocutory and, if so, should we grant leave to appeal nunc pro tunc. See, e.g., Stump v. Whibco, 314 N.J. Super. 560, 565 (App. Div. 1998).

In determining whether an order is final, as opposed to interlocutory, there are a number of considerations which must be examined. First of all, "[i]t is... well settled that a judgment, in order to be eligible for appeal as a final judgment, must be final as to all parties and to all issues." Pressler, Current N.J. Court Rules, comment 2.2.2 on R. 2:2-3 (2010). In this case, the order is final as to all parties in that it addresses all of the parties in the matter, but it is certainly not final as to all issues. The issue that clearly has not been addressed is the amount, if any, of a reduction to be made with respect to defendant's existing child support obligation. That is the central issue in the motion presented to the court, and it has not yet been resolved. The motion court wisely extended an opportunity for the parties to engage in discovery so that the court can be fully informed as to both parties' current financial situations before entertaining and finally deciding on a modification, if any, to child support.

Another consideration to be weighed is whether entertaining the current appeal would avoid piecemeal litigation. See Moon v. Warren Haven Nursing Home, 182 N.J. 507, 513 (2005). In Moon, the Court noted "Appellate courts avoid premature review of matters because '[t]he interruption of litigation at the trial level[,] by the taking of an unsanctioned appeal[,] disrupts the entire process and is wasteful of judicial resources.'" Id. (quoting CPC Int'l, Inc. v. Hartford Accident & Indem. Ins. Co., 316 N.J. Super. 351, 365 (App. Div. 1998), certif. denied, 158 N.J. 73 (1999)). In this case, if we were to entertain the application, we would certainly not be avoiding the pitfalls of piecemeal litigation. To the contrary, we would be disposing of a matter without all of the necessary financial data before us. "We will not render advisory opinions or function in the abstract; nor will we decide a case based upon facts which are undeveloped or uncertain." Zamboni v. Stamler, 199 N.J. Super. 378, 383 (App. Div. 1985).

In Clarke v. Clarke, 349 N.J. Super. 55, 61 (App. Div. 2002), we recognized that a trial court's order that merely articulated a basic standard to be used in determining the respective parties' equitable distribution interests in a pension that was not yet in pay status, but did not establish the effect upon the parties by particularizing the application of the standards to the facts in the case was interlocutory and merited dismissal. That is exactly the situation presented in this appeal. The trial court has concluded, from the information submitted to it by defendant with his motion, that defendant has set forth a prima facie case of changed circumstances. The motion court has not yet, in the absence of full discovery, a potential plenary hearing, and oral argument, determined what, if any, adjustment should be made to the child support obligation.

We conclude, therefore, that the provision in the order appealed from is interlocutory and, given the nature of the case, the limited effect of the provisions on the parties, and the absence of full and complete discovery on the issue of child support, we do not elect, in the interest of justice, to regard the notice of appeal as a motion for leave to appeal to be granted nunc pro tunc.

Accordingly, we dismiss the appeal. Dismissed.


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