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Carmen Delavilla, N/K/A Carmen Cedeno v. Carlos Delavilla

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 9, 2011

CARMEN DELAVILLA, N/K/A CARMEN CEDENO, PLAINTIFF-APPELLANT,
v.
CARLOS DELAVILLA, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2303-95.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 25, 2011

Before Judges Fisher and Baxter.

Plaintiff appeals an October 1, 2010, post-judgment matrimonial order, which: (1) declared the parties' son to be emancipated as of September 7, 2010; (2) directed that any overpaid child support be repaid to defendant; and (3) compelled plaintiff to pay defendant $1500 in counsel fees.

Plaintiff does not argue that the judge mistakenly determined that the child was emancipated. To the contrary, she argues that no other relief should have been awarded to defendant because she allegedly advised the probation department -- prior to the filing of defendant's motion -- that the child was emancipated because he had graduated from school. The record reveals, however, that defendant's claim that plaintiff had not kept him advised of the child's status for a considerable period of time as to necessitate his motion was not rebutted. Indeed, it is stated in the preamble of the order under review that defendant's emancipation motion was unopposed.

Plaintiff has included in her appendix copies of certifications or other materials to support the argument she makes now that she was not served with defendant's emancipation motion. There is nothing in the record, however, that would suggest this argument was ever presented to the trial judge or that plaintiff ever sought relief from the October 1, 2010 order pursuant to Rule 4:50. As a result, plaintiff's claim that she was not given adequate notice of defendant's motion is not properly before us. See N.J. Div. of Youth & Family Servs. v. T.R., 331 N.J. Super. 360, 363-64 (App. Div. 2000); Haber v. Haber, 253 N.J. Super. 413, 416-17 (App. Div. 1992). In other words, at best, the only question before us is whether the trial judge abused his discretion in granting defendant's unopposed motion. To the extent we can discern from plaintiff's pro se brief such an argument, we conclude it has insufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

20111109

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