Opinion
DOCKET NO. A-2333-13T3
02-04-2016
CHRISTINE JOSHI, Plaintiff-Respondent, v. SAMIR JOSHI, Defendant-Appellant.
Samir Joshi, appellant pro se. Klineburger and Nussey, attorneys for respondent (D. Ryan Nussey, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Kennedy and Gilson. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-49-12. Samir Joshi, appellant pro se. Klineburger and Nussey, attorneys for respondent (D. Ryan Nussey, on the briefs). PER CURIAM
The parties are divorced with three children. Defendant Samir Joshi appeals from two post-divorce judgment orders that address child support and custody of the children. We affirm.
I.
We discern the relevant facts and procedural history from the record. Plaintiff Christine Joshi and defendant were married in Pennsylvania in 1998. Their three children are currently sixteen, fourteen and twelve years of age. In 2000, plaintiff filed for divorce in Pennsylvania, separated from defendant, and moved to New Jersey. Through a stipulation and orders entered in Pennsylvania, plaintiff was granted primary residential custody of the three children and defendant was ordered to pay child support. In 2004, Pennsylvania entered a judgment of divorce. By agreement of the parties, in 2007, Pennsylvania vacated all child support orders and the case in Pennsylvania was closed. Thereafter, Pennsylvania entered orders relinquishing to New Jersey jurisdiction of all issues concerning custody and child support. Defendant appealed the Pennsylvania orders relinquishing jurisdiction, but all those appeals, including his appeal to the Pennsylvania Supreme Court, were denied.
Defendant is self-represented and his appendices are not complete. Defendant also submitted documents that were not before the Family Part. Plaintiff moved to suppress those documents and we reserved decision on that motion. We now determine that we will only consider documents that were before the Family Part.
In September 2011, plaintiff filed an action in New Jersey seeking child support. The litigation in New Jersey has been contentious with both parties filing numerous motions addressing child support and custody issues. On August 30, 2012, the Family Part entered an order directing defendant to pay plaintiff child support under the New Jersey Child Support Guidelines and calculating his arrears retroactive to September 2011. Thereafter, the amount of child support was modified by orders based on updated financial information from both parties.
The Family Part also entered a series of orders addressing custody issues. On May 24, 2013, the court ordered defendant to undergo a risk assessment prior to allowing him to have parenting time with the children. On July 26, 2013, the court denied defendant's motion to transfer primary physical and legal custody of the children from plaintiff to defendant. Instead, having reviewed a child risk assessment, the court granted plaintiff's motion in part, to limit defendant to day-time visitations with his children, and without prejudice to defendant seeking modification of the parenting time in the future. The court also denied defendant's application for a plenary hearing concerning custody.
The orders being challenged on this appeal were entered on November 22, 2013, and January 15, 2014. In the order filed on November 22, 2013, the Family Part addressed a number of issues raised by defendant and, among other things, denied defendant's request to (1) modify child support by using Pennsylvania law; (2) close the New Jersey Probation Child Support account and allow defendant to make direct payments; and (3) credit defendant's child support arrears with over $11,000 allegedly paid directly to plaintiff. The November 22, 2013 order also granted plaintiff's cross-motion to (1) enforce provisions of the order entered on July 26, 2013, concerning custody issues; (2) continue a daily sanction of $25 per day against defendant for his failure to provide financial information as previously ordered; and (3) award plaintiff attorney's fees.
The January 15, 2014 order denied defendant's motion seeking to modify custody or, in the alternative, for a plenary hearing. The court found that defendant had not demonstrated any change of circumstances affecting the welfare of the children that would justify either a hearing or a change of custody. Instead, having received information from the Division of Child Protection and Permanency (DCPP), the court (1) ordered defendant to submit to counseling with the children through DCPP; (2) temporarily suspended defendant's parenting time with one child; and (3) modified defendant's parenting time with the two other children. The January 15, 2014 order also reduced the sanction previously imposed on defendant to a judgment in the amount of $4225, and ordered defendant to pay the previously awarded attorney's fees by a fixed date or a warrant for his arrest would issue.
Effective June 29, 2012, the Division of Youth and Family Services was renamed the Division of Child Protection and Permanency. P.L. 2012, c.16.
Defendant filed his notice of appeal on January 27, 2014. While the appeal was pending, plaintiff filed a motion to temporarily transfer residential custody of two of the children to defendant, while plaintiff continued to have residential custody of the third child. Plaintiff also sought other relief related to the change of custody. On defendant's application, we granted a temporary remand to allow the Family Part "to entertain the entry of a consent order of the parties for a change of custody . . . and any other matter related to or arising out of a change in custody."
On May 22, 2015, the Family Part entered an order that, among other things, (1) continued the parties' joint legal custody of the children; (2) granted defendant temporary residential custody of two of the children and continued residential custody of the third child with plaintiff; (3) granted plaintiff parenting time with the two children who were residing with defendant; (4) ended defendant's child support obligations, but directed that he continue to pay arrears; and (5) continued New Jersey's exclusive jurisdiction of all custody and child support issues. The Family Part also denied defendant's request for (1) an award of $2 880 in attorney's fees related to this litigation, and (2) an award of $9000 in attorney's fees in connection with a separate litigation brought by DCPP under Title 30.
II.
On this appeal, defendant challenges many of the provisions of the orders entered on November 22, 2013, and January 15, 2014. Defendant is self-represented and as best we can discern, he contends (1) Pennsylvania should have jurisdiction over child support and custody issues; (2) it was an error to calculate child support under New Jersey law; (3) it was an error to make child support retroactive to September 2011, and establish child support arrears of over $12,500; (4) it was an error to deny defendant's application to give him a credit of $11,720 for child support he allegedly paid directly to plaintiff; (5) the Family Part erred in awarding plaintiff attorney's fees and sanctioning defendant; (6) the Family Part erred in not transferring custody of the children to defendant; and (7) the Family Part erred in not holding a plenary hearing to determine custody and other contested issues.
After the entry of the May 22, 2015 order, defendant filed a supplemental brief contending (1) we should address the custody of the child who continues to reside with plaintiff; (2) we should address whether New Jersey or Pennsylvania has jurisdiction; (3) we should address defendant's arrears and "financial issues"; and (4) we should address two new issues (i) the denial of his request for $2880 for attorney's fees, and (ii) the denial of his request for $9000 for attorney's fees related to the DCPP litigation.
We granted defendant permission to file a supplemental brief.
We first address the scope of this appeal because defendant has not filed a timely appeal from the issues addressed in the Family Part orders entered on November 22, 2013, and January 15, 2014, except for the judgment on the amount of the sanctions. Moreover, defendant cannot on this appeal raise new issues addressed in the May 22, 2015 order.
A.
A notice of appeal from a final order must be filed within forty-five days of entry. R. 2:4-1(a). A post-judgment matrimonial order that is not contingent on a further proceeding is a final order. See Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 549-50 (App. Div. 2007) (explaining that a final judgment must "dispose of all claims against all parties"); Wein v. Morris, 388 N.J. Super. 640, 652 (App. Div. 2006) (stating that an order that anticipates future proceedings is not final), aff'd in part, rev'd in part on other grounds, 194 N.J. 364 (2008); see also Saltzman v. Saltzman, 290 N.J. Super. 117, 124 (App. Div. 1996) (contending that a post-judgment order affecting spousal support may be a final judgment). If a timely appeal is not filed, the order is conclusive on the issues addressed in the order. R. 2:4-1(a), -4(a).
Here, defendant's appeal of the order entered on November 22, 2013, is time-barred. Defendant filed his notice of appeal on January 27, 2014, sixty-six days after the entry of the November 22, 2013 order. The November 22, 2013 order, and prior orders, made final rulings on the issues of New Jersey's jurisdiction, defendant's child support arrears, the denial of defendant's motion for a child support credit of $11,720 and awards of attorney's fees up to that time. Thus, none of those issues can be addressed on this appeal.
Rule 2:4-4(a) provides that the court may enlarge the forty-five day period for thirty days under certain circumstances. Here, defendant filed his notice of appeal outside that thirty day extension period. Moreover, nothing in this record would support an enlargement of defendant's time to file an appeal.
Defendant's appeal of the order entered on January 15, 2014, is also barred. A party is not permitted to appeal from an order that denied identical relief in a prior order that was entered outside the time for appeal. In other words, a party may not file a motion seeking relief on the same theory and facts raised in a prior motion when that prior motion was resolved by a final order. See State v. Smith, 43 N.J. 67, 74 (1964) (explaining that a collateral proceeding is not a substitute for a direct appeal from a prior order that adjudicated the same claims in a prior collateral proceeding), cert. denied, 379 U.S. 1005, 85 S. Ct. 731, 13 L. Ed. 2d 706 (1965). In short, "an issue . . . once decided may not be relitigated." Id. at 74.
A motion for reconsideration will toll the time for appeal, R. 2:4-3(e), but here there was no motion for reconsideration filed.
Here, defendant appeals the provisions of the January 15, 2014 order that (1) denied his motion to transfer to him the custody of the children; and (2) alternatively, denied his request for a plenary hearing. Defendant had sought that identical relief in a prior motion that was denied in an order entered on July 26, 2013. In the January 15, 2014 order, the Family Part judge found that defendant had "not demonstrated a significant change of circumstances that affects the welfare of the children, such that it is in the best interest of the children to modify the present custody arrangement." The Family Part judge also found that defendant had failed "to demonstrate a substantial change in circumstances that would warrant a plenary hearing." Defendant did not file a timely appeal of the July 26, 2013 order. Consequently, his appeal of the January 15, 2014 order is barred because the identical relief was denied in the July 26, 2013 order and there was no change of circumstances.
Defendant also has no right to raise new issues addressed in the order entered on May 22, 2015. Our remand was limited to address a change of custody by consent and any related issues, such as parenting time and child support. Contrary to that limited remand, defendant filed a cross-motion seeking, for the first time, $2880 in attorney's fees for this litigation and $9000 in attorney's fees for the DCPP litigation. Those provisions of the May 22, 2015 order are not before us on this appeal, which is based on a notice of appeal filed on January 27, 2014. Defendant did not file a notice of appeal from the May 22, 2015 order and the time for filing such a notice has expired.
Our remand did allow for the relief plaintiff had sought in a motion that she had filed and which the Family Part denied in an order entered on April 10, 2015, because it did not have jurisdiction at that time. Specifically, our limited remand included "jurisdiction to rule on the applications addressed in [the Family Part's] April 10, 2015 order and any other matter related to or arising out of a change in custody."
Defendant has referenced the DCPP litigation and contends that issues raised in that litigation justify a change of custody. The DCPP litigation is not before us and we do not address any issue concerning that separate litigation from which there has been no appeal.
B.
The one exception to the time-bar of defendant's appeal, is the provision of the January 15, 2014 order that reduced the daily sanction imposed on defendant to a judgment. In the July 26, 2013 order, defendant was ordered to pay $25 per day as a sanction for failure to submit his updated financial information. In paragraph twenty-one of the January 15, 2014 order, the Family Part reduced the then current amount of that daily sanction to a judgment of $4225. Since the judgment was final, defendant filed a timely appeal of the sanction judgment.
The $25 per day sanction was lifted in an order entered on January 24, 2014, after defendant finally submitted his updated financial information. --------
Monetary sanctions for the failure to comply with discovery orders are authorized by Rule 4:23-2(b). We review such orders on an abuse of discretion standard. See Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 512-13 (1995); Il Grande v. DiBenedetto, 366 N.J. Super. 597, 621-22 (App. Div. 2004). Defendant had been ordered several times in 2012 and 2013 to submit updated financial information, but had failed to comply with those orders. We find no abuse of discretion in the imposition of a reasonable daily sanction, and the judgment in the amount of $4225 is affirmed.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION