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Andrea Magalhaes v. Thomas Russo

May 17, 2011

ANDREA MAGALHAES, PLAINTIFF-APPELLANT,
v.
THOMAS RUSSO, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FD-13-0439-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 30, 2011

Before Judges Fuentes, Nugent and Newman.

In this companion appeal to Docket No. A-0752-09, plaintiff appeals from a handwritten order entered on March 22, 2010, which was typed and entered on April 29, 2010. We affirm.

To place this appeal in context, we need not repeat the facts describing the party's relationship and their two children. The background to the entry of the order under appeal may be summarized as follows. The companion appeal is from an order entered on September 18, 2009, based on the trial court's decision of September 4, 2009. That order reads as follows in pertinent part:

1. The Court shall reconsider its Order dated July 6, 2009, specifically paragraph 5, which set the defendant's weekly child support amount at $198.00.

2. The defendant's child support obligation is hereby decreased from $198.00 per week to $191.00 per week effective September 4, 2009. A copy of the child support guidelines are attached hereto.

3. The plaintiff shall hereby reimburse the defendant in the amount of [$6800.00] pursuant to paragraph 3 of the parties' Consent Order dated March 23, 2007, representing the credits due for the funds advanced by the defendant to the plaintiff but not utilized for purposes of education on behalf of Marcello Magalhaes. The plaintiff shall hereby reimburse the defendant in the amount of [$6800.00] within forty-five (45) days of the date of this order.

4. The plaintiff shall hereby reimburse the defendant in the amount of [$1128.00] pursuant to paragraph 2 of the Consent Order dated March 23, 2007[,] which obligated the plaintiff to pay the defendant "the amount he would have saved by having one exemption in 2007 and so on, if he yields the exemption to plaintiff for the purpose of maximizing the financial aid." The plaintiff shall hereby reimburse the defendant in the amount of [$1128.00] within forty-five (45) days of the date of this Order.

5. Plaintiff, Andrea Magalhaes, shall pay counsel fees to Defendant's attorney in the amount of [$1000.00] for the necessity of this application within forty-five (45) days of this Order.

Plaintiff, pro se, filed a motion for reconsideration of the order, but did not include a copy of the order itself, which had not been filed when the motion was submitted. Consequently, the trial court dismissed the motion without prejudice. Plaintiff then filed a single page with the court indicating that copies of the order to be reconsidered and the proposed order were attached. On October 13, 2009, defendant filed his notice of appeal, which placed jurisdiction with this court. Thereafter, plaintiff, now represented by counsel, filed a notice of cross-appeal on October 26, 2009. Plaintiff failed to comply with the terms of the order even though no stay of the order of September 18, 2009 was in effect.

On January 4, 2010, defendant filed a motion, seeking enforcement of the terms of the September 18, 2009 order relating to plaintiff's reimbursement obligation. Plaintiff cross-moved on January 27, 2010 raising the issue that the equities should bar any reimbursement to plaintiff, notwithstanding the terms of the consent order of March 23, 2007. The trial court conferenced the matter on March 22, 2010 with both parties and then entered an order on the same day staying defendant's child support obligation. That order, which is the subject of this appeal, provided, in relevant part, as follows:

1. The defendant's child support obligation of $191 per week as set forth in the September 18, 2009 Order is stayed pending the current appeal. The Probation Department shall hereby remove the wage garnishment on the defendant's wages and there shall be no enforcement of the child support obligation until the issues in the appeal are resolved. The defendant shall have no obligation to pay child support until [the] issues in the appeal are resolved in full. Should there be arrears owed after the conclusion of the appeal, this issue will be reserved and resolved after the ...


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