Devers v. Devers, ___ N.J. Super. ___ (App. Div. 2022). This was a matrimonial appeal. The issue centered around whether a particular financial account (“the Gauss account”) was marital property. Plaintiff wife filed a motion for summary judgment declaring that the account was marital property. The Family Part denied that motion “without prejudice, as [that c]ourt lack[ed] subject matter jurisdiction” on January 16, 2020, and the parties proceeded to litigate other issues. Plaintiff later moved for reconsideration, but the Family Part ruled, in an order entered on July 16, 2020, that the January 16 order was a final order, and that plaintiff’s motion for reconsideration had to be filed within twenty days of January 16, under Rule 4:49-2.
Plaintiff appealed both orders. “Questions about the proper scope of the appeal were raised early in [the appellate] proceedings,” noted Judge Fisher in his opinion for the panel in this case. A single Appellate Division judge entered two orders limiting the appeal to the July 16 order.
The merits panel invited the parties to brief whether the merits panel could reconsider the one-judge orders and, if so, what the scope of the appeal would be if the merits panel afforded relief from the one-judge orders. That led to this opinion by Judge Fisher.
The law of the case doctrine was the only basis on which the merits panel might have been bound, Judge Fisher said. The panel then determined that it was not bound by the prior orders. “Despite our respect for the prior interlocutory rulings on motions in this appeal, we are satisfied that a perpetuation of the limitations placed on the appeal by those orders would cause an injustice. In the final analysis, courts need not ‘slavishly follow an erroneous or uncertain interlocutory ruling,’ [Citation], but are instead entitled to reconsider and set aside prior interlocutory orders and rulings in the interest of justice up until the entry of final judgment,” citing Rule 4:42-2.
The Family Part’s order that it “lack[ed] subject matter jurisdiction” while denying plaintiff’s motion for summary judgment “without prejudice,” Judge Fisher said, “triggered doubt about finality.” The Appellate Division “assume[d] the trial judge did not mean to suggest the Gauss account dispute would continue to be entertained in the trial court; she instead used the phrase ‘without prejudice’ as an acknowledgement that the denial of the claim on jurisdictional grounds did not preclude Christine from asserting her claim in another forum.”
Judge Fisher concluded that “[t]o bar [plaintiff’s] appeal of the January 16, 2020 order – because she made the mistake of believing the dismissal without prejudice meant all issues as to all parties had not been resolved in the trial court – would produce a result wholly foreign to the policies of fairness and justice that lie at the heart of our rules of procedure.” Accordingly, the panel vacated the prior one-judge orders and considered plaintiff’s arguments about the Family Part’s January 16, 2020 order (specifically, the subject matter jurisdiction issue).
From there, it was not difficult. The Family Part had relied on the Investment Advisers Act, 15 U.S.C. §§ 80b-1 to -21, and found that that statute “grants federal jurisdiction” over issues involved in the status of the Gauss account. But Judge Fisher observed that the trial judge had “left out the part where the statute declares the courts of the United States have jurisdiction ‘concurrently with State and Territorial courts'” (emphasis by Judge Fisher). Thus, the Family Part in fact had subject matter jurisdiction to address the Gauss account. The Appellate Division vacated the ruling that the Family Part lacked subject matter jurisdiction and remanded for “a resolution of all the issues raised in the trial court about the Gauss account that have yet to be decided.”