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Sanderhoff v. Miller

December 8, 2009

AUDRA K. SANDERHOFF, PLAINTIFF-RESPONDENT,
v.
DAVID T. MILLER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Middlesex County, Docket No. FD-12-1328-08T.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 30, 2009

Before Judges Baxter and Coburn.

Defendant David T. Miller appeals from a September 30, 2008 order that denied his motion to: vacate a judgment of divorce and child support orders that had been entered against him in the District Court of Douglas County, Nebraska; and dismiss the child support enforcement action filed against him by the State of Washington, in New Jersey, pursuant to an interstate compact.

Defendant asserts that his motion should have been granted because the District Court of Omaha, Nebraska lacked personal jurisdiction over him because plaintiff Audra Sanderhoff never served a summons and complaint for divorce, or a motion for enforcement, upon him. Because the September 30, 2008 order denying defendant's motion is not a final judgment, and defendant has not sought leave to appeal such interlocutory order, we dismiss this appeal.

I.

Plaintiff and defendant were married in Bellevue, Nebraska on October 16, 1994. Their daughter was born approximately five months later in 1995. The parties separated in early 1997, at which time defendant moved to Colorado,*fn1 where he remained until approximately April 25, 1997.

On March 21, 1997, plaintiff filed a divorce complaint in Douglas County, Nebraska and sent the complaint, and an accompanying summons, to defendant at his place of employment in Carter Lake, Iowa. Defendant maintains, however, that at the time the summons was sent to his place of employment in Iowa, he was living in Nebraska. Although defendant does not say so directly, it is evident that after he left the marital home, he did not advise plaintiff of his whereabouts.

On May 1, 1997, a Nebraska judge entered an order permitting substitute service by publication in newspapers in Denver, Colorado. By then, according to defendant, he had already left Colorado to move to upstate New York. He was never served with the divorce complaint. A hearing on plaintiff's complaint for divorce was conducted in Douglas County, Nebraska in August 1997. As a result of that hearing, the judge awarded custody of the parties' daughter to plaintiff and directed defendant to pay $507.52 per month in child support. Defendant asserts, although he submits no documentary proof to support his claim, that he was incarcerated in Indiana for four years between July 15, 1997 and July 15, 2001.

Between 1997 and 2007, plaintiff made a number of attempts to garnish defendant's wages because of the child support arrearages, but was unsuccessful, because by the time the order of garnishment reached defendant's employer, he was no longer employed there. On January 18, 2008, the Washington*fn2 State Support Registry forwarded to New Jersey a request for enforcement of the Nebraska child support orders. The request from the State of Washington listed defendant's arrears as $60,902. The Superior Court of New Jersey, Chancery Division, Family Part of Middlesex County sent defendant a summons to appear for an enforcement hearing on March 3, 2008.

After receiving that summons, defendant moved to vacate the Nebraska child support orders and dismiss the enforcement petition that had been initiated by the State of Washington. He asserted that he had never been served with the divorce complaint, had no notice of the child support order, and the orders in question were consequently null and void. On September 30, 2008, the Family Part issued an order denying defendant's motion to vacate and dismiss, finding that defendant had not demonstrated an entitlement to such relief.

Unquestionably, the September 30, 2008 order was not a final order because it neither directed defendant to pay any arrearages nor granted plaintiff any relief. Without moving for leave to appeal, and without seeking certification from the Family Part that the order was final for purposes of appeal, ...


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