Opinion
DOCKET NO. A-5233-13T1
11-02-2015
KATHLEEN DILEO n/k/a KATHLEEN RAMSAY, Plaintiff-Respondent, v. KENNETH DILEO, Defendant-Appellant.
Robert J. Sims, Jr. argued the cause for appellant (Pandolfe, Shaw & Rubino, L.L.C., attorneys; Mr. Sims, on the brief). Kathleen Ramsay, respondent, argued the cause pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Whipple. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-474-10. Robert J. Sims, Jr. argued the cause for appellant (Pandolfe, Shaw & Rubino, L.L.C., attorneys; Mr. Sims, on the brief). Kathleen Ramsay, respondent, argued the cause pro se. PER CURIAM
Defendant appeals from a May 2014 order denying reconsideration of a March 26, 2014 order of the Family Part. We dismiss.
The parties were divorced in 2009 after entering into a property settlement agreement ("agreement") which required, among other things, defendant to be "solely obligated to pay for a cash flow analysis with a forensic accountant of [plaintiff's] choosing as part of the review of his obligation to the [plaintiff] and/or the children" if he sought modification of his alimony and child support obligations due to a decrease in earnings. On January 9, 2014, defendant moved for recalculation of his child support, asserting a substantial change in circumstances due to the decline of his business and unemployment. He did not provide a cash flow analysis as required under the agreement, and did not file any Case Information Statement ("CIS") previously filed in connection with the judgement or order to be modified. Defendant also sought modification of the obligation to provide proof of life insurance because his alimony obligation had terminated. Plaintiff opposed defendant's motion and cross-moved for enforcement of various other obligations under the agreement.
Defendant withdrew his request for counsel fees.
Plaintiff sought to enforce the requirement that defendant provide proof of life insurance, for defendant to retain a forensic accountant, and to relieve her obligation to the Internal Revenue Service.
The Family Part judge entered an order on March 26, 2014, denying defendant's request because of his failure to comply with the obligation to obtain a forensic accountant, to conduct a cash flow analysis prior to seeking review of his child support obligation, and because defendant had not submitted a CIS as required under Rule 5:5-4(a). Defendant's request for modification of child support was denied without prejudice.
Defendant's request for modification of his obligation to provide proof of life insurance was denied because he had failed to provide proof that he was no longer obligated to pay alimony. The order also granted plaintiff's requested relief consistent with defendant's other obligations under the agreement, but denied all other relief.3 --------
Defendant moved for reconsideration of the March 26, 2014 order and plaintiff cross-moved to enforce litigant's rights. On May 30, 2014 the Family Part judge entered an order denying defendant's motion and granting plaintiff's requested relief. This appeal followed.
On appeal, defendant argues that the Family Part erroneously denied his motion for reconsideration. He also argues the Family Part should have considered his proofs of changed circumstances and erred in requiring him to comply with the agreement's requirement, namely, that he hire a forensic accountant and provide a prior CIS. We disagree.
At the outset, we note that defendant's amended notice of appeal indicates that he is appealing the order of May 30, 2014, denying "defendant's modification of child support; modification from $3000 per month to $1000 per month and $500 per child . . . defendant's life insurance reconsideration" and granting "plaintiff's request to maintain child support at same level as [agreement] [and] . . . plaintiff's request that defendant pay tax obligation." Only orders designated in the notice of appeal are subject to the appeal process and review. See R. 2:5-1(f)(3)(A).
The May 30, 2014 order is the only order referenced in the amended notice of appeal and case information statement and that order did not deny defendant's request for child support modification or the other relief listed. Instead, it denied his request to reconsider the March 26, 2014 order denying child support modification and other relief without prejudice, which is an interlocutory order. Moreover, the Family Part judge's stated reasons for denying the motion for reconsideration were defendant's failure to comply with the requirement that he provide a forensic accounting, his failure to comply with the requirements of Rule 5:5-4(a), his failure to attach the prior motion paperwork so the court could reconsider it, and because reconsideration cannot be used to expand the record and reargue the previous motion.
As the underlying March 26, 2014 order was not final, and the denial of a request for reconsideration did not foreclose further litigation by defendant at the trial level, the May 30, 2014 order was not final or appealable as of right under Rule 2:2-3(a)(1). Because leave to file an interlocutory appeal was never sought or obtained pursuant to Rule 2:2-4, we dismiss.
Dismissed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION