NJSBA Family Law Section

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  • 1.  Finality of FD order

    Posted 03-14-2014 02:50 PM
    I was contacted by a client who separated from her husband about 5 years ago, when he moved to FL.  After 1 year separation she filed under FD docket for child support, alimony, college expenses, etc.  He got a lawyer and the parties entered into a consent order in NJ entered under FD.  Husband later lost his job and stopped making support payments. So, this woman had to filed for enforcement of the Consent Order, he never responded and she got an order by default, again under FD. 

    Recently she got notice that he filed in FL for modification of support, emancipation, etc.  She answered stating that jurisdiction is with NJ, however, the FL judge is not agreeing to dismiss the case there unless she can show that the 2 FD orders (again one was entered by consent and the other by default) were not "final".  She wants to give her FL lawyer some NJ cases that would be helpful. 

    She recently filed for divorce here in NJ because she thought that would convince the FL judge to keep the case in NJ.

    I thought that for purposes of "appealability" both FD orders would be deemed final.  Not sure where to go from here.  Any thoughts?  Thank you in advance.

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    Joanna Tyrpa Esq.

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  • 2.  RE:Finality of FD order

    Posted 03-14-2014 03:30 PM
    There's a brand new NJ published case that just came down stating that it makes no difference whether the order is temporary or final.  Nor sure it will help, but it's all I got.

    Excerpts follow.

    Hanan

    ________________

    SUPERIOR COURT OF NEW JERSEY

    MARGO PATRICE JOHNSON, FAMILY DIVISION: PASSAIC COUNTY

    DOCKET NO: FD-16-01950-11

    Plaintiff,

    v. CIVIL ACTION

    AHMAD RASHAD BRADSHAW, OPINION

    Defendant.

    __________________________

    Decided: November 22, 2013

    Laurence J. Cutler for plaintiff (Laufer, Dalena, Cadicina, Jensen & Boyd LLC, attorneys).

    Robert T. Corcoran for defendant (RT Corcoran, PC, attorneys).

    MOHAMMED, J.S.C.

    I

    PROCEDURAL HISTORY & FACTUAL FINDINGS

    This matter is before the court on the plaintiff's motion seeking a modification of a

    December 13, 2011, order. Defendant opposes the motion, asserting that the court lacks

    jurisdiction to modify the order. Plaintiff filed a complaint on June 9, 2011, through which she

    sought to establish a child support order from defendant. The issue before this court is whether

    New Jersey has continuing, exclusive jurisdiction over a Uniform Interstate Family Support Act

    (hereinafter "UIFSA") application to enter a new order, when there is a temporary child support

    order, but no party presently lives in New Jersey.

    The central facts of this case are not in dispute. Plaintiff and defendant were never

    married. A child was born from their relationship in the state of Virginia on October 16, 2010.

    At the time, defendant was employed as a running back by the New York Giants, a professional

    football team in the National Football League. While employed by the New York Giants,

    APPROVED FOR PUBLICATION

    FEBRUARY 25, 2014

    COMMITTEE ON OPINIONS



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    Hanan Isaacs Esq.
    Kingston NJ
    (609)683-7400

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    Original Message


  • 3.  RE:Finality of FD order

    Posted 03-14-2014 06:30 PM
    When is an FD order "final"?  Good question....

    I just had a judge chew me out for filing a Notice of Appeal for an FD order because, a month after the order was issued, one of the parties had gone into case management and requested a new hearing, which are automatically issued in FD cases (no motion / no requirement of Lepis threshold to get hearing date).  The second motion was out of time for reconsideration and alleged a new change in circumstances.... it had nada to do with the first order (which changed custody without a hearing)  If the subsequent application rendered the first order interlocutory for appellate purposes, then there is essentially no such thing as a final FD order -- anytime one wants to defeat an appeal in an FD matter, just request a hearing and you've rendered the first order interlocutory and can have it dismissed on that basis unless the much-higher "interlocutory appeal" threshold is met?  (Never got the chance to test this out on appeal as the judge in essence said "too bad there's an appeal pending or I'd give your client what she wants..." So I dismissed on the record and judge followed through and gave her what she wanted.)


    Anyway, if you're trying to show that the FD support order wasn't "final", I'd suggest Anthony v. Council, 316 F.3d 412, 420 (3d Cir.2003). http://scholar.google.com/scholar_case?case=16505310366764882686 .  In it, the Third Circuit held that a child support order isn't     held that a child support order isn't really "final" since it's always subject to modification (this justifying an abstention ruling).  I didn't agree with the logic (but didn't apply to the US Supreme Court for cert), but the case is out there and supports the idea that a support order isn't really "final."



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    David Perry Davis, Esq.
    112 West Franklin Avenue
    Pennington, NJ 08534
    Voice: 609-737-2222
    Fax: 609-737-3222
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    Original Message