On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-556-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Nugent and Carchman.
Following defendant Linda Doblin's motion that sought to compel plaintiff Michael Doblin to resume alimony payments he had ceased paying approximately two years earlier, the Family Part judge denied the requested relief by order of October 24, 2008 (the October order). No appeal was taken from that order. Thereafter, defendant filed an untimely motion for reconsideration of the October order. The judge denied the motion by order of June 19, 2009 (the June order). Defendant appealed both the October and June orders. We affirm and conclude that defendant's appeal of the merits of the October order was untimely and cannot be revived by an untimely motion for reconsideration.
We deem it appropriate to provide an expansive explanation of the facts, as this appeal marks the fourteenth year of litigation concerning a marriage that lasted for a period of three years before the parties separated.
The parties were married in June 1994. A child was born of the marriage in April 1996, and the parties separated in 1997, with a complaint for divorce being filed in August 1998.
Prior to the marriage, the parties executed a prenuptial agreement that, among its other terms, contained an alimony waiver provision, pursuant to which the parties would forgo alimony if they divorced within six years of their wedding. The agreement also provided that alimony would be available in the event that either party suffered a disability preventing him or her from engaging in fulltime employment.
Following the entry of a judgment of divorce in October 2001, the parties agreed to arbitrate their remaining disputes. The arbitration consumed fourteen days of negotiations, including extensive, conflicting testimony about alleged disabilities suffered by each party.
The arbitrator addressed a number of other issues. Defendant had argued that the prenuptial agreement was invalid under the Uniform Premarital Agreement Act, N.J.S.A. 37:2-31 to -41. In a decision dated December 31, 2003, the arbitrator determined that the agreement was valid and enforceable in all respects. However, the arbitrator determined that the alimony waiver provision of the prenuptial agreement was unenforceable because plaintiff had not filed for divorce during the appropriate time period. The arbitrator awarded defendant alimony in the amount of $3,000 per month, to be paid tax-free to defendant and not to be tax-deductible by plaintiff. The arbitrator stated that the alimony was to be "'permanent' in nature, rather than [of] a specific limited duration period" but nevertheless found that "a review of the 'permanent' alimony should be undertaken" three years after his decision, a period he "intended to coincide with the mandatory and statutory review of child support called for under N.J.S.A. 2A:17-56.9[a] . . . ." The arbitrator found that "at the time of such three[-]year review of all support payments, the burden of proof w[ould] be on [defendant] to establish her continuing need for alimony from [plaintiff] [,] . . . the procedural variance [of changing the burden of proof] . . . deemed to be appropriate and warranted under the exceptional circumstances of this case." The Family Part judge confirmed the arbitration award. The arbitrator thereafter issued a supplemental arbitration decision wherein he denied both parties' correction or clarification claims. The judge issued an order and judgment confirming the supplemental arbitration decision.
Over the next two years, the judge addressed child custody issues, and in 2005 he modified the alimony award based on plaintiff's changed circumstances. Plaintiff was awarded custody of the child. The judge did not address the issue of alimony in 2007, when other issues were litigated, resulting in, among other things, the award of counsel fees in plaintiff's favor in the amount of $53,182.
In 2008, defendant unsuccessfully sought a transfer of custody. She filed a motion to enforce litigant's rights due to plaintiff's alleged failure to make alimony and child support payments to her. The judge denied the motion and directed defendant to pay child support arrears through the Bergen County Probation Department. No appeal was taken from that order, but in 2009, defendant filed a motion seeking to enforce litigant's rights and to set aside the previously entered October order, due to misapplication and misconstruction of law and fact pursuant to Rule 4:50-1. The judge denied the motion. Defendant appealed both this order and the earlier October order.
On appeal, defendant asserts that she is still entitled to alimony. Plaintiff disputes defendant's entitlement, claiming that: alimony was to be terminated after three years; defendant's appeal is out of time; defendant never met her burden of proof to establish a need for additional alimony; and defendant has engaged in bad faith throughout this extended litigation.
We first address the timeliness of this appeal. An appeal from a final judgment must be filed within forty-five days of the entry of the order. R. 2:4-1(a). Moreover, a motion for reconsideration must be filed within twenty days after the issuance of the order from which reconsideration is sought. R. 4:49-2. Here, the motion for reconsideration was filed almost six months after ...