This post was written by Seth R. Parker, Esq., an associate in our Family Law Practice Group, residence in the Roseland, New Jersey office.
I was recently before a trial court judge that had mistakenly denied my motion for reconsideration of his pendente lite Order on the papers because I had filed my application more than twenty days after the entry of his Order. When I politely advised him that his Order was not a final judgment or order and therefore was not bound by the prescribed deadline because each and every clause of it contained the phrase, without prejudice, he seemed frankly puzzled. I then provided him with a supplementary copy of R. 4:49-2, and an Amended Order was swiftly issued.
When I recently read the unpublished appellate decision in M.M. v. M.G., I began to realize how a failure to appreciate this distinction of what is a final order and what is not, can have grave and sometimes quirky consequences in the world of Family Law. In that case, the Appellate Division reversed and remanded a trial judge’s decision to deny a litigant a hearing when he learned that he may not have been the natural father of his presumed son.
M.G., or Matt as he is known in the decision, was married to M.M., known as Mary, in 1989. Two children were born of their marriage, Lance and Adam. The parties were divorced in 1999. In 2009, Matt was adroitly approached by a family friend, Neil (I presume Neil ceased to be one after he spoke with Matt), and told that he, and not Matt, was Lance’s real father. Neil provided Matt with a paternity test that confirmed his belief.
Upon learning of this startling development, Matt filed a pro se application to disestablish paternity of Adam, modify his child support obligation and to receive credit for his previously paid support. Mary responded with a certification that claimed that the parties always had doubts that Matt was Lance’s father. The Court denied Matt’s application on the papers because Matt had always treated Lance as his son, freely signed Lance’s birth certificate and never contested paternity before. The Court also ruled that Matt had failed to establish a significant change in circumstances, although I must note that if learning for the first time that your son is not actually yours and instead is your friend’s child is not actually a change of circumstances, I’m not sure what would meet such a standard. It was certainly significant enough of a circumstance to repeatedly occupy twenty two seasons of The Jerry Springer Show. Instead, the Court suggested that Matt’s alternative remedy would be to bring a support action directly against Lance, pursuant to M.H.B. v. H.T.B., 100 N.J. 567, 579-80 (1985).
Matt then re-filed his application with the assistance of counsel seeking largely the same relief. The Court again denied his application on the papers and this time awarded Mary counsel fees based upon the argument that Matt filed his motion for reconsideration after the prescribed twenty days, and he also did not seek to set aside the Order. Matt then appealed both decisions based upon the trial court’s failure to even entertain oral argument on his motions, let alone provide him with a hearing, and because the underlying Order contained those magic words, denied without prejudice.
The Appellate Division reversed and remanded the trial court’s decision, and correctly noted that all of the underlying Orders were not final because they were entered without prejudice. It also succinctly noted that, “A dismissal without prejudice means there has been adjudication on the merits and that a subsequent complaint alleging the same cause of action will not be barred by reason of its prior dismissal.” Czepas v. Schenk, 363 N.J. Super. 216, 288 (App Div). Moreover, they rejected the trial judge’s misguided declaration that his order constituted the law of the case.
Far too often, as practicing attorneys, we see the law of case supersede the actual rules of the court. The trial court’s decision in M.M. v. M.G illustrates the far-reaching consequences of letting that occur.
William Shakespeare once wrote, “It is a wise father that knows his own child.” Next time you are scrambling to file your motion for reconsideration under the gun, it would behoove you to get clarification from the court if the underlying Order is in fact final and if deadlines prescribed by R. 4:49-2 even apply to your case. If you don’t, it could be difference between trying distinguish the work of Francis Bacon and William Shakespeare.