The Superior Court of New Jersey, Appellate Division answered this question on April 11, 2022 in Christine Ann Devers v. Jeffrey Eric Devers. The parties were divorced in May 2017 following a trial that spanned three (3) years. The parties’ settlement agreement resolved “all issues remaining” but left for determination Christine’s claim to Jeffrey’s Gauss LLC account.

Jeffrey managed a hedge fund throughout the United States and the Cayman Islands. That hedge fund began winding down its affairs in 2002 and, approximately, $1,500,000 was transferred into the Gauss LLC account. Jeffrey was the sole member of Gauss LLC.

The trial court ordered a plenary hearing regarding Christine’s claim that the Gauss LLC account was a marital asset and Jeffrey’s response that the account consists of funds belonging to investors. Prior to the hearing occurring, Christine moved for summary judgment. Nevertheless, the trial court proceeded with a three-day plenary hearing in Spring/Summer of 2019. The trial court did not resolve the factual or evidentiary disputes, but rather found that the court lacked subject matter jurisdiction. In doing so, the trial court denied Christine’s claim “without prejudice”.

Christine did not move for reconsideration of this January 16, 2020 Order until three (3) months later. This reconsideration motion was denied as untimely pursuant to Rule 4:49-2 (i.e., it was filed beyond the 20-day requirement). Christine filed a notice of appeal seeking review of the January 16, 2020 Order and the July 16, 2020 Order that denied her reconsideration motion.

On appeal, an appellate judge entered an Order on October 8, 2020 limit the scope of appellate review to the July 16, 2020 Order denying the reconsideration motion. The appellate court requested that the parties supply supplemental briefs on whether they could reconsider the appellate review limitation orders and, if they were not bound, whether they can take a different view of the appeal’s scope. Essentially, all issues before the appellate division were fully briefed prior to oral argument.

First, regarding the appellate orders limiting the appellate review, this panel determined that complying with “those orders would cause an injustice.” They did so because they recognized there was an important question about trial court finality in this matter. In recognizing this, the appellate division highlighted that the Judgment of Divorce was not final because the court and parties stipulated to the Gauss LLC account remaining in dispute. It was not until the order denying summary judgment or lack of jurisdiction that the Judgment of Divorce became final.

This notwithstanding, the denial “without prejudice” triggered doubt about the January 16, 2020 Order’s finality. Using that language is often used by family court judges to express at both the pendente lite and post-judgment stages that the issue is not yet finally resolved or fully considered. The appellate division interpreted this phrase as an acknowledgement that it did not preclude Christine from asserting her claim in another forum. However, that language “could ensorcell the unwary about whether there was more to occur in the trial court and that trial-court finality had not yet been achieved.” Even more, the denial “without prejudice” was relative to the summary judgment motion in particular, which normally suggests there is more to do in the trial court. Denial of summary judgment motions “decides nothing and merely reserves issues for future disposition.” Gonzalez v. Ideal Tile Importing Co., 371 N.J. Super. 349, 356 (App. Div. 2004)

In short, this use of “without prejudice” gave an otherwise final order an interlocutory appearance. The effect was Christine potentially permanently forfeiting her right to appeal by not recognizing its finality and not filing her notice of appeal sooner. Because Christine misunderstood the finality of the order, the appellate division refused to allow it to be the undoing of her appeal.

The January 16, 2020 Order was vacated, and the matter remanded for further proceedings on the Gauss LLC account, given the state court shared jurisdiction concurrently with the federal courts pursuant to the Investment Advisers Act—the Act which the trial court originally premised it lacked subject matter jurisdiction.

Timely filing of a notice of appeal is imperative. When significant sums of money are at stake, like in the Devers case, it is beneficial to explore your options and obtain an opinion from a lawyer as to whether the order or judgment is final.

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