PER CURIAM.
Plaintiff Joann K. Karnavas (formerly Werosta) attempts to appeal from a number of orders entered in litigation with defendant Karl R. Werosta following their judgment of divorce. We dismiss her appeal of most of those orders as untimely, and we affirm the order she has timely appealed.
This is the second time these parties have been before us. Our opinion in the first appeal relates the prior procedural history.
On December 2, 2011, after hearing argument, the judge entered the first order challenged in this appeal. The order calculated defendant's child support obligation separately for two time periods ("stages"). The judge calculated child support for "stage one" — from April 26, 2010, through June 30, 2011, when defendant's alimony obligation ended to be $430 per week, based on defendant's 2009 gross income of $198,302 and plaintiff's imputed income of about $27,000. The judge next calculated child support for "stage two" — from July 1, 2011, through December 2, 2011 — to be $799 per week, based on defendant's 2010 gross income of $191,212, plaintiff's imputed income of about $27,000, and imputed child care costs that would be incurred to earn the imputed income. The judge ordered defendant to pay plaintiff arrears of $9,089 for stage one and $13,468 arrears for stage two, and reduced the attorney's fees award to $1,000.
By letter, defendant's counsel pointed out that the imputed child care costs had not been properly inputted into the child support guidelines for stage two. The judge agreed and issued an amended order dated December 12, 2011, recalculating the child support for stage two at $521 per week, and the arrears for stage two at $6,240. On December 28, 2011, plaintiff filed a motion for reconsideration of the December orders. Defendant filed a cross-motion.
On February 17, 2012, the judge heard argument on the reconsideration motions, and entered an order granting plaintiff's request to consider the imputed child care costs in calculating child support for stage one as well as stage two. The judge denied the remainder of her motion to reconsider. The judge granted defendant's cross-motion and allowed him an "other dependent deduction" for his child by his new wife. The judge ordered both parties to submit revised child support calculations.
On March 16, 2012, the judge issued an amended order recalculating stage one child support at $377 per week, and stage one arrears at $5,169.30. The judge also recalculated stage two child support at $503 per week, and stage two arrears at $5,772. The judge added a $1,847 undercharge to those arrears, and subtracted the $10,000 in arrears defendant had already paid, the $1,000 in attorney's fees, and a $2,400 credit. The judge thus ordered plaintiff to repay defendant $611.70. On April 9, 2012, plaintiff served a motion to reconsider the March 16, 2012 order. Defendant filed a cross-motion.
On June 1, 2012, the judge granted both motions in part. The judge determined that the undercharge was $2,069.45, recalculated the arrears, and ordered defendant to pay plaintiff $297.53 in arrears due.
On July 16, 2012, plaintiff filed a notice of appeal stating that she was appealing orders entered December 2, 2011, December 12, 2011, February 17, 2012, March 16, 2012, and June 1, 2012. Before we may address her challenges to those orders, we must first consider whether she has timely appealed them.
"[T]he timely filing of a notice of appeal is mandatory and jurisdictional."
Plaintiff filed her notice of appeal more than forty-five days after every other order she seeks to appeal, however. The notice was filed 227 days after the December 2, 2011 order, 217 days after the December 12, 2011 order, 150 days after the February 17, 2012 order, and 122 days after the March 16, 2012 order.
Some of these days may not count if an order was the subject of a timely motion for reconsideration. The relevant portion of
A motion for reconsideration is timely if it is "served not later than 20 days after service of the judgment or order."
Here, plaintiff filed her first motion for reconsideration on December 28, 2011, which was decided on February 17, 2012, a period of fifty-one days. However, even assuming that the motion was timely as to the December 2, 2011 order as well as the December 12, 2011 amended order, and applying the tolling period, plaintiff's notice of appeal was filed over 100 days too late to appeal those orders.
On April 9, 2012, plaintiff served her second motion for reconsideration, which was decided on June 1, 2012, a period of fifty-three days. That motion was untimely, however, because twenty days after the March 16, 2012 order was Thursday, April 5, 2012. Due to the Good Friday holiday and weekend, the motion was served one court day late.
We have the discretion to extend the time to file a notice of appeal, but that power is limited. "Enlargement of time for appeal and review shall be governed by"
Here, a thirty-day extension would not render timely plaintiff's appeal of the December or February orders, which are over 100 days late. Neither would such an extension make timely plaintiff's appeal of the March order, which is seventy-seven days late given that plaintiff's second reconsideration motion was untimely and did not toll the time for appeal.
Moreover, "[i]t is clear that in civil actions the time to appeal may not be extended beyond the 30-day `good cause' extension period permitted by [
Plaintiff nonetheless advances two arguments why her appeal of the June 1, 2012 order encompasses review of the December, February, and March orders. First, she contends those earlier orders were interlocutory. Second, she asserts the merits of her second reconsideration motion are intertwined with the merits of the prior orders.
Plaintiff's first argument invokes the principle that "`[a]n appeal from a final judgment raises the validity of all interlocutory orders' previously entered in the trial court."
The judge determined the weekly amount of child support in his December 2, 2011 order, amended that order to correct a calculation error on December 12, granted a timely motion for reconsideration in February, and again amended its order on reconsideration on March 16, 2012. That March order finally determined the weekly child support amounts, resolved all issues as to all parties, and was a final order subject to motions to reconsider under
Plaintiff's second argument relies on the precept that, to the extent a motion for reconsideration "may implicate the substantive issues in the case and the basis for the motion judge's ruling on the [original] and reconsideration motions may be the same," then "an appeal solely ... from the denial of reconsideration may be sufficient for an appellate review of the merits of the case."
As set forth below, however, plaintiff's second motion for reconsideration "was limited to the single issue" of whether the child support arrears had been correctly calculated.
Plaintiff's second motion for reconsideration did not challenge the calculation of the weekly child support amounts. Rather, the motion merely asked for an order providing "that the defendant owes an additional $5,965.26 in child support arrearages and directing the Mercer County Probation Department to modify the Probation record consistent therewith." Plaintiff's certification asserted that when child support was reduced in June 2010, the Probation Department gave defendant a $2,233.53 credit for overpayments covering April 26-30, 2010. Utilizing the stage one child support figure of $377 a week adopted in the judge's March 16, 2012 order, plaintiff claimed defendant should have received only a credit of $163.15. Plaintiff's certification also claimed that the judge should not have given defendant a $2,400 credit for a direct payment he made in September 2009, alleging that he received that credit twice. Finally, plaintiff claimed that the judge wrongly assumed defendant paid $25,246.62 from April 2010 through December 2011, and contends that the correct figure for that period is $23,751.94.
Even before the December 2, 2011 order, plaintiff claimed the $2,400 credit was duplicative. The December 2, 2011 order allowed the parties to address the $2,400 credit issue by requesting a review of the account by the Probation Department. However, plaintiff's first motion for reconsideration asked the judge, rather than the Probation Department, to resolve the issue. At argument, plaintiff conceded that there was no duplicate credit for $2,400, but argued that the credit due to defendant for April 26-30, 2010, had been miscalculated at $2,233.53. At the request of both parties, the judge recalculated the arrears. The judge agreed in his March order that there was no duplicate $2,400 credit, and found that the record did "not reflect a credit of $2,233.53" to defendant. Rather, the judge found that from April 26-30, 2010, the amount charged to defendant was $1,847 too low. In the June 1, 2012 order, the judge found the undercharge should be $2,069.45, but found no other basis to reconsider his calculation of arrears.
Plaintiff's appellate brief states that the judge improperly calculated these credits, but does not say how the calculations were erroneous. Rather, she argues that the judge should not have calculated the credits due, but instead should have ordered the Probation Department to do an audit. Plaintiff's appellate brief thus takes a position contrary to her first and second motions for reconsideration, where she requested that the calculation of these credits be done by the judge rather than by the Probation Department.
In any event, we must hew to our standard of review. We review the judge's denial of reconsideration only for abuse of discretion.
We must uphold the factual findings of a trial judge unless we are "convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice."
Here, we cannot conclude that the judge's determination of the arrears was manifestly unsupported, inconsistent with the evidence, clearly mistaken, or wide of the mark. Nor can we find that the judge abused his discretion in determining the arrears himself rather than by audit, or in denying reconsideration. We therefore affirm the order of June 1, 2012.
Affirmed in part, dismissed in part.