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William T. Fox v. Dorothy J. Fox

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 15, 2011

WILLIAM T. FOX, PLAINTIFF-RESPONDENT,
v.
DOROTHY J. FOX, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2269-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 1, 2011

Before Judges Messano and Waugh.

Defendant Dorothy J. Fox appeals two orders entered by the Family Part with respect to child support and certain transportation costs. We dismiss in part and affirm in part.

I.

We discern the following facts and procedural history from the record. The parties were married on October 28, 1983.

They have four children, the youngest of whom is a daughter born in May 1994. The youngest daughter, A.F. (Alberta), lives with plaintiff William T. Fox in Illinois.*fn1

William received permission to move from New Jersey to Illinois with Alberta in an order dated August 14, 2009. Prior to the removal, the parties shared joint legal custody and "reasonable and flexible parenting time between the parties." Alberta lived primarily at the former marital residence, which was owned by William pursuant to a buy-out provision in the parties' property settlement agreement (PSA). Neither parent was paying child support pursuant to the PSA, "[b]ased on the considerations of [the PSA] and the circumstances of the parties joint custody arrangement."

The August 14 removal order required the parties to split evenly the costs of transportation for the parenting-time schedule that was attached to the order. Dorothy filed a motion for reconsideration. She requested that the motion judge (1) list the cases on which the removal decision was based, (2) recalculate the allocation of the transportation costs, and (3) provide that all future support issues should be resolved in New Jersey rather than Illinois. William opposed the motion.

Dorothy's motion was heard October 23. The judge noted that he had explained his reasons for granting the removal motion on the record at the oral argument on August 14. He also told Dorothy that jurisdiction would remain in New Jersey as long as one parent resided in this state. He agreed to reconsider the allocation of travel costs, and requested further financial information.

The judge raised the issue of child support sua sponte. In response to Dorothy's argument that the PSA provided a waiver of child support, the judge pointed to the language from the PSA, quoted above, that the waiver was based, in part, on the then-current custody and parenting arrangements. He also relied on the legal principle that parents cannot waive a child's right to support.

After receiving the further submissions of the parties, the judge entered an order on November 9. The order reallocated the transportation costs so that William would pay sixty percent and Dorothy forty percent. It also required Dorothy to pay child support in the amount of $42 per week, effective upon Alberta's relocation to Illinois. The order contained an explanation of the judge's financial calculations.

William's attorney subsequently wrote two letters to the motion judge, outlining what he characterized as an error in the judge's calculation of child support. He suggested that the correct amount of support would be $137 per week.

After the judge did not respond to the letters, William moved for reconsideration of the amount of the child support. He also sought enforcement of the provisions of the prior orders concerning the sharing of transportation expenses. Dorothy opposed the motion, but did not file a cross-motion.

At oral argument on April 1, 2010, Dorothy conceded that the support figure proposed by William accurately reflected the number of overnights set forth in the parenting schedule attached to the removal order. She objected to any retroactive change in the amount. In addition, she reiterated her objection to the payment of any child support based upon the cited provisions of the PSA and to the judge having imputed income to her. The judge did not consider those arguments, because the time to appeal the November 9 order had expired and Dorothy had not filed a cross-motion.

In his oral decision, the motion judge concluded that the retroactive increase in child support would be effective as of the date that William filed his motion for reconsideration, February 11, 2010, rather than the date of the original support order. He entered an order on April 1, 2010, increasing the support to $137, which he concluded was consistent with the child support guidelines (Guidelines) and the overnight schedule in the removal order.

This appeal followed.

II.

On appeal, Dorothy challenges both the November 9, 2009 and the April 1, 2010 orders. She argues that the motion judge erred in ordering child support when it had not been requested, and had also been waived by William in the PSA. She also argues that the judge erred in acting without proper financial information and in imputing unwarranted income to her. William contends that we should not consider the appeal of either order because Dorothy's notice of appeal was out of time as to both.

Rule 2:4-1(a) provides in pertinent part that an appeal to this court must be filed within forty-five days of entry of the order or judgment appealed from. Although we are authorized to extend a party's time to appeal by thirty days, such relief may only be granted "upon motion and . . . on a showing of good cause and the absence of prejudice." R. 2:4-4(a). We do not have the authority to extend the time for appeal after expiration of that thirty-day period. See Cabrera v. Tronolone, 205 N.J. Super. 268, 271-72 (App. Div. 1985), certif. denied, 103 N.J. 493 (1986).

Nevertheless, Rule 2:4-3(e) provides for the tolling of the time for taking an appeal in civil actions by the filing and service of a motion to the trial court seeking certain enumerated relief, including "for rehearing or reconsideration seeking to alter or amend the judgment or order pursuant to R. 4:49-2." However, for a motion seeking reconsideration of a prior order to toll the time to appeal effectively, the reconsideration motion must be timely filed. See Cabrera, supra, 205 N.J. Super. at 271 (providing the time to appeal is not tolled by an untimely motion for a new trial).

Rule 4:49-2 governs motions for reconsideration. The rule provides in pertinent part that "a motion for . . . reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it." Rule 1:3-4(c) prohibits enlargement of the time for filing a motion for reconsideration from a final judgment or order. It is against these principles and time restraints that we consider the timeliness of Dorothy's appeal.

There is no question that the time to appeal the November 9, 2009 order had expired long before the filing of Dorothy's notice of appeal on May 18, 2010. In addition, even assuming William's motion for reconsideration would toll Dorothy's time to appeal, it was not filed within the twenty days required by Rule 4:49-2. Consequently, we do not consider the merits of the order entered on November 9, 2009.*fn2

With respect to the April 1, 2010 order, the notice of appeal was, at most, two days late, well within our authority to extend the time to appeal. For that reason, we consider Dorothy's appeal of the April 1 order on the merits.

The increase in child support from $42 per week to $137 per week, however, is the only issue properly addressed to the April 1 order on this appeal. That change was based on the corrected calculation under the Guidelines, using the overnights set forth in the parenting schedule attached to the August 14 order. Dorothy did not challenge that aspect of the calculation at oral argument.

Instead, her challenge on appeal is addressed to the award of any child support and to the judge's imputation of income, both of which were done in connection with the November 9 order. Those issues are not properly before us.

Consequently, we affirm the April 1 order, essentially for the reasons set forth by Judge James J. Guida in his oral opinion of that date.

Appeal dismissed in part; affirmed in part.


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