SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
APPLICATION TO FILE APPEAL
OR MOTION ON AN EMERGENT BASIS
TO:
Hon. Michael Winkelstein DATE: 8/9/06
FROM: David Perry Davis, Esq. TELEPHONE: 609-737-2222
The following questions are to be answered
by the attorney or pro se litigant requesting emergent relief. This questionnaire is simply designed to
determine if the application be handled in the ordinary course or on an
emergency basis. COMPLETION OF THIS
APPLICATION DOES NOT IN ANY SENSE CONSTITUTE THE FILING OF AN APPEAL OR
MOTION. There is no right to be heard
orally on an emergency application.
CASE
NAME: Tomlin v. Winn IV
1. What is the vicinage of the matter? (i.e. what judge, in
what county or what agency entered the decision?)
Hon. Allison
E. Accurso, JSC
Mercer -
609-571-4902 (voice)
2. a) What is your name,
address, phone number and fax number?
David Perry
Davis, Esq.
112 West
Franklin Ave
Pennington NJ
08534
609-737-2222
b) Whom do
you represent?
Plaintiff
(Jill Tomlin)
3. What is your adversary's name, address, phone number and fax
number?
Robert Allen Winn IV
14 Bradford Avenue Apt 9
Hamilton NJ 08610
609-731-1620 voice
No fax number
4. Do you have a written order or judgement entered by the judge or a
written agency determination? YOU MUST
ATTACH A COPY OF THE ORDER, JUDGEMENT OR DECISION.
No. This is precisely the issue. An unopposed motion was reutranble July
21. The situation has become emergent. As explained below, I ask the Appellate
Division to view the lack of an order as a de
facto denial (as the appellate division did in the matter of Brookins v.
Tolbert, attached)
5. Are there any claims against any party below,
either in this or a consolidated action, which have not been disposed of,
including counterclaims, cross-claims, third-party claims and applications for
counsel fees? IF SO, THE DECISION IS
NOT FINAL, BUT RATHER INTERLOCUTORY, AND LEAVE TO APPEAL MUST BE SOUGHT.
6. Have you filed for a stay before the trial court or agency? If so, do you have a court order or agency
decision denying or granting same?
7. If the order or agency decision is interlocutory, are you filing a
motion for leave to appeal?
8. If interlocutory, are you filing a motion to stay the trial court
or agency proceeding?
9. If the order, judgement or agency decision is final, have you
filed a notice of appeal?
Will file upon disposition
of this application.
10. What is the essence of the order, judge or agency decision?
De facto denial of
application to freeze funds to be received from inheritance and imminent sale
of real estate.
11. Has any aspect of this matter been presented to or considered by
another judge or part of the Appellate Division by emergent application or
prior appeals proceedings? If so, which
judge or part?
12. What is the nature of the emergency?
Real estate is on the verge
of being sold and funds dissipated.
13. What is the irreparable harm?
The child's right to
support.
14. What relief do you seek?
An order
freezing the funds and addressing the other issues raised in plaintiff's
motion.
15. What citation is most important for the proposition that you are
likely to prevail on appeal?
Crowe v. DeGioia, 90 N.J. 126 (1982) reh'g on remand 203 N.J. Super.
22 (App. Div. 1985) citing Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d
351, 356‑57 (3d Cir. 1980)Citizens Coach Co. v. Camden Horse R.R. Co., 29 N.J.Eq. 299, 303
(E. & A. 1878); Paternoster v. Shuster, 296 N.J.Super. 544
(App.Div. 1997); Cerro Metal Products v. Marshall, 620 F.2d 964,
972 (3d. Cir. 1980)
16. Have you notified your adversary that you will be appealing?
17. If this application is being made during trial, does the judge know
of it?
18. Have you served your adversary with all papers?
19. Have any transcripts been ordered (particularly of the trial
judge's challenged ruling)?
If so, when will the transcripts be available?
20. Please give me a brief summary of the facts of your case:
A motion was filed in the
trial court returnable July 21.
In sum, defendant has paid no child support, day
care, medical expenses or other obligations under the parties' judgment of
divorce. He currently has arrears of
$7,358.08.
Under the
parties' judgment of divorce, payment was direct (not through probation);
therefore, there is no automatic judgment nor enforcement through probation.
In early
June, plaintiff learned that defendant's father had passed away, leaving
defendant his entire estate, including a home in Hunterdon County worth in
excess of $500,000 and liquid accounts.
Defendant refused to turn over any information concerning the estate to
plaintiff. Plaintiff obtained a copy of
the will from the probate court in Fleminton.
Plaintiff
filed a motion seeking to freeze the funds to be received from the sale of the
home, to create a fund (annuity) for the payment of future support, for a full
disclosure of all documents related to the inheritance, for all future payment
to be through probation and for other relief.
The
motion was properly served and is unopposed.
Plaintiff's
counsel made several inquiries as to the status of the order on the unopposed
motion. It has now been almost a month
since the return date.
On July
24, 2006, plaintiff's counsel inquired as to the status of the motion.
On July
28, 2006, plaintiff's counsel inquired as to the status of the motion.
On August 4, the trial court was notified
in writing that defendant had sold the real estate, was in the process of
loading moving vans, and that the situation was now emergent.
August 8,
2006, plaintiff's counsel again inquired as to the status of the motion.
August 9,
2006, plaintiff's counsel again inquired as to the status of the motion.
This
application followed.
The
appellate division is asked to treat the lack of an order as a de facto denial. Even if the other issues in the motion are
not addressed immediately, judgment should be entered on the child support
arrears so plaintiff's counsel can at least secrure payment of past due
support.
6/99
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