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Linda Kosowicz v. John Gellatly

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 18, 2011

LINDA KOSOWICZ, PLAINTIFF-APPELLANT,
v.
JOHN GELLATLY, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FM-02-28825-85.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 9, 2011

Before Judges Reisner and Alvarez.

Plaintiff Linda Kosowicz appeals from a June 4, 2010 order entered by the Family Part directing her to execute warrants of satisfaction releasing three judgments against defendant John Gellatly. We affirm.

This post-judgment matrimonial appeal has its genesis in a long-running dispute between the parties over defendant's support obligations. The prior history of the dispute was detailed in our earlier opinion in Kosowicz v. Gellatly, No. A-6440-05 (App. Div. Nov. 29, 2007), and need not be repeated here. In that opinion, we rejected plaintiff's appeal from a June 30, 2006 order in which the Family Part determined that defendant had paid a substantial amount toward his then-existing support arrears. Slip op. at 11. Among other things, we recognized that the Family Part properly decided the arrears issue without a plenary hearing, based on undisputed court records and financial documents such as canceled checks. Ibid. We also recognized that defendant was then paying off the arrears through wage garnishments. We remanded to the trial court the limited issues of the parties' applications for counsel fees, and plaintiff's claim for interest on outstanding support arrears.

Two years later, defendant moved for an order declaring that his arrears obligations had been satisfied. In an order dated November 20, 2009, Judge Alexander H. Carver, III, determined, "[b]ased upon the documentation provided by the Defendant, as well as the Court's review of the Bergen County Probation Department's records," that defendant had satisfied all of the support arrears. On January 8, 2010, the judge issued another order denying plaintiff's motion for reconsideration. The January 8 order incorporated a statement of reasons for the judge's decision. Plaintiff did not file a timely appeal from either the November 20, 2009 order or the January 8, 2010 order.

Instead, despite her attorney's written advice to the contrary, she chose to disregard the court's orders and refused to sign satisfactions of judgment releasing her liens against defendant's house. Defendant, who was trying to sell his house but could not because of the outstanding judgment liens, filed a motion to enforce the November 20 order. The court granted that motion by order of June 4, 2010. That is the only order from which plaintiff has appealed.

On this appeal, plaintiff contends that defendant did not, in fact, pay off his support arrears. However, we conclude that she cannot raise that issue on this appeal. If plaintiff wanted to challenge Judge Carver's decision that defendant did not owe support arrears, she should have appealed from the November 20, 2009 order, or the January 8, 2010 order. Instead, she simply flouted those orders, preventing defendant from selling his house and requiring him to file an enforcement motion. The June 4, 2010 order did not re-determine the arrears issue on the merits; rather, it simply enforced the previous un-appealed November 20, 2009 order. Having failed to appeal from that November 20 order, plaintiff is bound by the determination that defendant paid off the arrears.

There is no dispute on this record that plaintiff flagrantly disregarded the court's November 20, 2009 order. Nothing in the record presented to us remotely suggests any abuse of the court's discretion, or other error, in entering the June 4, 2010 order enforcing the November 20 order. We find no abuse of discretion in the judge's direction, in the June 4 order, that if plaintiff failed to comply within thirty days, she must pay defendant $1000 in counsel fees.

To the extent that plaintiff's appeal also seeks to re-litigate orders entered prior to November 20, 2009, concerning the emancipation of the parties' son and other issues, her claims are untimely. Her additional arguments do not warrant further discussion here. R. 2:11-3(e)(1)(E).*fn1

The stay of the June 4, 2010 order entered by this court on July 29, 2010, pending the disposition of this appeal, is hereby vacated.

Affirmed.


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