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Ashgan Besada v. Medhat Attara

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 15, 2010

ASHGAN BESADA, PLAINTIFF-RESPONDENT,
v.
MEDHAT ATTARA, DEFENDANT-APPELLANT

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FM-12-1367-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 4, 2010 - Decided Before Judges Gilroy and Nugent.

Defendant Medhat Attara appeals from the October 14, 2008 dual judgment of divorce (JOD) and from post-judgment orders entered on August 14, 2009 and January 6, February 5, and March 9, 2010. Because defendant did not provide the portions of the record that the Rules of Court require an appellant to provide, and that are essential to our review of his arguments, we dismiss the appeal.

On October 14, 2008, defendant and plaintiff Ashgan Besada divorced. On November 25, 2008, defendant filed a notice of appeal from certain paragraphs of the JOD: paragraph two that granted defendant temporary custody of the parties' three children; paragraph three that granted plaintiff term alimony of $373 per week for twelve years; paragraph five that directed defendant to pay plaintiff $40,000 from defendant's 401k plan as part of the parties' equitable distribution; and paragraph six that directed defendant to pay plaintiff's counsel's fees in the amount of $10,957.60 from defendant's 401k plan.

In his brief, defendant sought relief from additional paragraphs of the JOD, namely, paragraph four that directed plaintiff to pay $170 per week in child support; and paragraphs seven and eight that froze defendant's 401K and pension. In the appendix to his brief, defendant provided copies of portions of transcripts dated July 29, 2008 and September 4, 2008 that are limited to discussions concerning child custody, but no other transcripts.

On January 13, 2010, defendant filed an amended notice of appeal that included an appeal from paragraphs one through seven of the trial court's order of August 14, 2009. That order denied defendant's request for a reduction in his alimony obligation; granted defendant's request to increase plaintiff's child support obligation to $181 per week, retroactive to July 7, 2009; directed that defendant's net alimony obligation of $300 per week be made through income withholding to the probation department; denied defendant's request for a change in the pick-up and drop-off locations of the children; and denied defendant's request for release of his passport. Defendant provided no transcripts of the proceedings.

Defendant filed a second supplemental brief and appendix on June 4, 2010 challenging the January 6, February 5, and the March 9, 2010 orders. The January 6, 2010 order directed the parties to submit to psychological evaluations, directed their children to undergo counseling with Catholic Charities, and directed the parties' passports be returned. The order of February 5, 2010, required defendant to show cause why he should not be incarcerated for failing to abide by previous orders; indicated that a hearing would be scheduled on plaintiff's motion for immediate custody of the children; directed that defendant pay plaintiff's counsel fees; and denied without prejudice a cross-motion defendant had filed pro se when he was represented by counsel. The only transcript attached to the brief is one page of plaintiff's testimony about her work.

The appendix to the June 4, 2010 brief does not include the March 9, 2010 order, but instead includes a March 5, 2010 order denying defendant and the parties' three children return of their passports, and denying another cross-motion filed by defendant pro se when he was represented by counsel. Defendant has not included a transcript of the proceedings.

Rule 2:5-3(a) provides that "if a verbatim record was made of the proceedings before the court ... from which the appeal is taken, the appellant shall, no later than the time of the filing and service of the notice of appeal, serve a request for the preparation of an original and copy of the transcript ...." Rule 2:5-3(b) requires that the transcript include "the entire proceedings in the court ... from which the appeal is taken, ... unless a written statement of reasons was filed by the judge." Rule 2:6-1(a)(1)(I) requires the appellant to prepare an appendix which includes "such other parts of the record ... as are essential to the proper consideration of the issues ...." Defendant has not complied with these rules.

When an appellant violates the Rules of Court by failing to provide appropriate transcripts and parts of the record essential for appellate review, the appeal should be dismissed. See Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004) (affirming the Appellate Division's refusal to address an issue because appellant did not provide the complete transcript, thereby "prohibit[ing] review" of the claims advanced on appeal); Soc'y Hill Condo. Ass'n v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002) (noting that appellant's failure to provide the appellate court with the parts of the record essential to a proper consideration of the issues made appellate review impossible).

Defendant asks that we find the trial judge erred in ruling on complicated issues such as child custody, equitable distribution, support, alimony and counsel fees, without having the record of the trial court's findings of fact and conclusions of law. It is impossible to analyze either defendant's arguments or the trial court rulings without a record of the trial court's findings. Consequently, we dismiss the appeal.

Dismissed.

20101215

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