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Francisca Cardoch v. Luis F. Cardoch

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 31, 2011

FRANCISCA CARDOCH, PLAINTIFF-RESPONDENT,
v.
LUIS F. CARDOCH, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2084-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 17, 2010

Before Judges Fuentes and Gilroy.

Defendant Luis F. Cardoch appeals from the April 9, 2009, final judgment of divorce by default that awarded plaintiff Francisca Cardoch permanent alimony, equitable distribution of real and personal property, and interest in defendant's business. The court also entered judgment against defendant on pendente lite arrearages and determined that plaintiff was entitled to joint marital monies that defendant transferred to Chile. Finally, the court awarded plaintiff $22,500 in counsel fees.

Defendant argues the trial court erred when it: (1) struck his answer and dismissed his counterclaim for failure to provide discovery; (2) took judicial notice of a mathematical formula in imputing income to defendant for monies received by defendant from his real estate brokerage firm; and (3) incarcerated him and withheld his passport for failure to comply with pendente lite support orders. We dismiss the appeal because defendant did not move before the trial court to vacate the default judgment.

Before we address the procedural defect barring appellate review, we note that defendant's appeal is untimely. The Family Part entered the final judgment of divorce dissolving the marriage between the parties on April 9, 2009. Defendant filed his notice of appeal on May 27, 2009, or forty-nine days after the entry of final judgment. Rule 2:4-1(a) requires appeals to be taken within forty-five days of the entry of final judgment. A request to extend the time to file a notice of appeal is governed exclusively by Rule 2:4-4. Here, defendant did not seek an extension of time to file this appeal under Rule 2:4-4. An untimely appeal deprives this court of jurisdiction. In re Hill, 241 N.J. Super. 367, 372 (App. Div. 1990). We decline to dismiss this appeal on this ground, however, because the parties did not brief this point.

This appeal is nevertheless barred because defendant cannot file a direct appeal from a default judgment. Haber v. Haber, 253 N.J. Super. 413, 416 (App. Div. 1992). As we explained in Haber:

The reason underlying this rule is that the very theory and constitution of a court of appellate jurisdiction is only the correction of errors which a court below may have committed, and a court below cannot be said to have committed an error when its judgment was never called into exercise, and the point of law was never taken into consideration, but was abandoned by acquiescence or default of the party who raised it. [Ibid. (quoting McDermott v. Paterson, 122 N.J.L. 81, 84 (E. & A. 1939)).]

Because defendant did not move before the trial court to vacate the default judgment pursuant to Rule 4:50-1, his direct appeal cannot stand.

Appeal dismissed.

20111031

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