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Kim Y. Magwood v. Larry J. Yates

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 5, 2011

KIM Y. MAGWOOD, PLAINTIFF-RESPONDENT,
v.
LARRY J. YATES, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FD-07-3887-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 2, 2011

Before Judges Reisner and Alvarez.

On June 23, 2009, defendant Larry J. Yates, appearing pro se, filed a notice of appeal from a Family Part order entered on June 12, 2009. On October 30, 2009, he was granted leave to amend his notice of appeal to include a levy, coincidentally issued on June 10, 2009, against his checking account, seeking payment of child support arrears. For the reasons set forth below, we affirm the June 12, 2009 order and dismiss his appeal of the levy as moot pursuant to Rule 2:8-2.

Defendant seeks appellate review of the many prior orders issued in the non-dissolution proceedings related to the parties' children, now ages nine and twelve. Our Court Rules require appeals to be taken within forty-five days of entry of a final judgment or order. R. 2:4-1(a). Interlocutory orders can only be appealed on leave granted, which must be sought within twenty days of the entry. R. 2:5-6(a). Therefore, we will not consider defendant's extensive arguments regarding alleged errors contained in various earlier orders issued by several judges. The time to appeal expired long before this appeal was filed. We therefore address only the June 12, 2009 order and the levy.

Defendant faces similar procedural impediments to his appeal from the denial of his various requests for leave to proceed as an indigent. For defendant's future reference, we nonetheless explain that he is not entitled, even if indigent, to free transcripts for the purpose of the appeal of child support and visitation orders. See In re Adoption of a Child by J.D.S., 176 N.J. 154 (2003) (distinguishing termination of parental rights and abuse and neglect cases); In re Civil Commitment of D.L., 351 N.J. Super. 77, 92 (App. Div. 2002) (free transcripts are available in cases involving involuntary civil commitments), certif. denied, 179 N.J. 373 (2004).

Defendant initially raised these points in his brief:

POINT I DEFENDANT IS ENTITLED TO RELIEF FROM JUDGMENT OR ORDERS

A. PLAINTIFF'S APPLICATIONS FOR RELIEF ARE DEFICIENT

B. TRIAL COURT FAILED TO APPLY PROPER STANDARD OF REVIEW

C. INSTITUTING PROCEEDINGS SUA SPONTE IS HARMFUL ERROR

D. JURISDICTIONAL REQUIREMENTS WERE NEVER MET

E. OCSS FAILED TO PROVIDE AGENCY RECORD POINT II

THE TRIAL COURT FAILED TO PROVIDE ANY FINDINGS OF FACT OR CONCLUSIONS OF LAW POINT III DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW POINT IV APPEARANCE OF IMPROPRIETY BY THE TRIAL COURT Defendant raises these additional points in a reply brief:

POINT I RESPONDENT'S PRESUMPTIONS ARE HARMFUL ERROR AND SHOULD BE DISREGARDED IN TOTO.

RESPONDENT HAS FAILED TO PROVIDE THE AGENCY RECORD OR A REASONABLE EXPLANATION FOR ITS ACTIONS WHERE AS A MATTER OF LAW THIS COURT CANNOT AFFIRM ITS DECISION POINT II RESPONDENT'S ARGUMENT IS MISPLACED AND SHOULD BE DISREGARDED IN TOTO. DEFENDANT IS ENTITLED TO TRANSCRIPTS AT PUBLIC EXPENSE AS A MATTER OF LAW

The relief granted in the June 12, 2009 Family Part order was very limited. It set the parameters of defendant's parenting time - every other weekend - with his children, and provided him with their phone number. Defendant does not explain why he considers this order to have been entered in error except in generalities, such as that the court lacked subject matter jurisdiction or had no authority to enter a "sua sponte" judgment. Without a specific claim of error supported by record references and relevant law, we cannot properly consider an appeal. See State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977). Gleaning no cognizable specific claim of error from defendant's brief, we have no alternative but to affirm the June 12, 2009 order.

We now turn to defendant's appeal of the levy issued against his bank account. The New Jersey Department of Human Services, Division of Family Development, Office of Child Support Services (OCSS) obtained a levy to collect defendant's child support arrears, totaling $853, which issued against defendant's account with Commerce Bank, now TD Bank. The account did not have sufficient funds to satisfy the levy and it was therefore withdrawn by OCSS.

The imposition of such levies is authorized by N.J.S.A. 2A:17-56.53(g)(2) and 2A:17-56.57(a). Defendant was served with notice advising him he could contest the action within thirty days. He did not do so until August 3, 2009, nearly two months after notification was served and approximately one month beyond the thirty-day limit for reply.

As a threshold matter, however, the State objects to consideration of this issue because it was never properly served with defendant's application to modify his notice of appeal to include an appeal from the levy. See R. 4:4-4(a)(7). We nonetheless briefly comment on the point.

Defendant seems to be asserting that OCSS should reimburse him for the $125 processing fee the bank assessed against him as a result of the levy. Whether the fees were proper arises between defendant and the bank, not defendant and OCSS. Such fees are authorized by statute and regulation. See N.J.S.A. 2A:17-56.57(e); N.J.A.C. 10:110-15.2(a)(4)(ii)(1)(B). Since the levy was withdrawn, the appeal on this score in any event is moot and is hereby dismissed.

The June 12, 2009 order is affirmed; defendant's appeal of the levy obtained by OCSS is dismissed as moot.

20110705

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