JOSEPH D. BOWEN v. SUSAN BOWEN

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NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-0300-14T2

JOSEPH D. BOWEN,

     Plaintiff-Appellant,

v.

SUSAN BOWEN,

     Defendant-Respondent.
___________________________________

            Submitted July 21, 2015 – Decided August 18, 2015

            Before Judges Nugent and Accurso.

            On appeal from Superior Court of New Jersey,
            Chancery   Division,   Family   Part,  Ocean
            County, Docket No. FM-15-0523-05.

            Hoffman DiMuzio, attorneys for      appellant
            (James M. Carter, on the brief).

            Lomurro, Davison, Eastman & Munoz, P.A.,
            attorneys for respondent (Carrie A. Lumi, on
            the brief)

PER CURIAM

     Plaintiff Joseph D. Bowen appeals an August 1, 2014 Family

Part order denying his motion for reconsideration of a May 9,

2014 order.     The May 9, 2014 order denied plaintiff's motion to

terminate      his   alimony   obligation   and    terminate,    or

alternatively, modify his child support obligation.         The May

2014 order also granted defendant various relief on her cross-
motion to enforce litigant's rights.              For the reasons stated

below, we affirm.         Our decision, like the trial court's, is

without prejudice to plaintiff to refile a motion that complies

with the Rules of Court.

      The facts are essentially undisputed.              Two children were

born during the parties' nearly twenty-one-year marriage, which

was dissolved by a Dual Judgment of Divorce (DJOD) dated March

17,   2005.     The    DJOD     incorporated   the    parties'   "Settlement

Agreement," which, among other things, required plaintiff to pay

weekly alimony of $300 for six months and $260 thereafter; and

weekly child support of $255 for six months and $250 thereafter.

      Throughout the years following their divorce, the parties

periodically    engaged    in     post-judgment   motion     practice,   which

resulted in modifications to plaintiff's support obligations.

This appeal stems from two motions, the first filed by plaintiff

on March 14, 2014, seeking to terminate his alimony obligation

and terminate or reduce his child support obligation.                     In a

supporting certification, plaintiff explained that the children

were now twenty-three and eighteen years old, that his child

support obligation had last been reduced to $175 per week in an

order dated August 7, 2009, and that this was his "third motion

to    reduce   or     eliminate     [his]   alimony    and    child   support

obligations    based      upon     [his]    current   medical    condition."




                                       2                              A-0300-14T2
Recounting his efforts, plaintiff acknowledged that his first

motion was denied on September 27, 2013 because he had failed to

include documentation.         The court denied his second motion in on

order   dated     January    17,   2014,      because    he     failed     to    show    a

permanent and significant change in circumstances.

      In support of the motion he filed in March 2014, plaintiff

attached    an     October    8,   2013       office    note        prepared    by    his

cardiologist stating that plaintiff had "sustained an extensive

anterior myocardial infarction, July 2013."                         The note further

explained that plaintiff was "experiencing debilitating symptoms

of   congestive     heart    failure    attributable           to    severe     ischemic

cardiomyopathy (left ventricular ejection – fraction 25%)."                           The

doctor stated in the office note that plaintiff was "certainly

not capable of working at this time and may not be able to

return to work unless there is significant improvement in his

cardiac status."          Plaintiff also attached a letter from the

Social Security Administration informing him of his entitlement

to Social Security Disability payments beginning August 2013.

      Defendant opposed the motion and filed a cross-motion.                            In

her opposition, defendant pointed out that plaintiff had not

filed   a   Case    Information       Statement        (CIS).         Defendant      also

pointed     out    that     despite    receiving        more        than   $13,000      in




                                          3                                     A-0300-14T2
"virtually a one week period," plaintiff made no payments toward

his significant support arrearages.

     In a reply certification, plaintiff attached an April 29,

2014 office note from his cardiologist explaining plaintiff's

cardiac condition and stating that plaintiff "is certainly not

capable   of   returning   to   work[,]   and[]   unless   there     is   an

unexpected dramatic improvement in his clinical status, I would

not anticipate that [plaintiff] will be able to return to work."

Five days later, plaintiff served defendant with a "Family Part

Case Information Statement."

     The court denied plaintiff's motion.         In a written order,

the court explained1:

          1.   Plaintiff's application for an [o]rder
          to   terminate  the    [p]laintiff's   alimony
          obligation is denied without prejudice.
          Plaintiff has failed to establish a prima
          facie   showing   of   changed   circumstances
          pursuant to Lepis v. Lepis, 
83 N.J. 139
          (1980).    Plaintiff has neither requested
          reconsideration nor filed an appeal of the
          [c]ourt's January 17, 2014 [o]rder denying
          this application, and has not submitted any
          additional proof regarding any permanent,
          significant      change      in      financial
          circumstances.   Defendant's late submission
          of an April 29, 2014 letter from his doctor
          does not sway this [c]ourt.      Further, the
          [c]ourt will not consider [d]efendant's very
          late submission of a CIS as he has not

1
  If the court also delivered an oral opinion, the court did not
reference the opinion in its order and the parties have not
included it in the appellate record.



                                   4                               A-0300-14T2
             complied   with  the   Rules   of  Court   in
             attaching the CIS to his original [m]otion.

             2.   Plaintiff's application for an [o]rder
             to   terminate   or,  in   the   alternative,
             modifying the [p]laintiff's child support
             obligation is denied without prejudice.
             Plaintiff has failed to establish a prima
             facia case of changed circumstances pursuant
             to Lepis v. Lepis, 
83 N.J. 139 (1980).

In   the   same    order,   dated    May    9,    2014,     the    court   granted

defendant's motion to enforce litigant's rights.

      Plaintiff    moved    for   reconsideration.          In    his   supporting

certification,     plaintiff      pointed   out    that    the    court    did   not

consider on the previous motion his CIS.                 Plaintiff argued that,

on the previous motion, the court appeared to accept defendant's

argument that plaintiff's Social Security Disability benefits

were partial and temporary, overlooking or perhaps being unaware

that such benefits are never partial or temporary, though they

can be terminated if the underlying condition triggering the

benefits improves to the point that the recipient can resume

work.      Lastly, plaintiff expressed incredulity that the court

was "not swayed" by his cardiologist's opinion that he could no

longer     work.     Plaintiff     attached      relevant       portions   of    his

cardiologist's file as well as a recent notice from the Social

Security     Administration       confirming      that    his     disability     was

"continuing."




                                       5                                   A-0300-14T2
    Defendant        once   again    filed      a     cross-motion    to    enforce

litigant's   rights.        The   court       denied   plaintiff's    motion      and

granted most of defendant's cross-motion.                The court explained:

            Plaintiff's application for an [o]rder for
            reconsideration of the 05/09/14 [o]rder to
            terminate his support obligations is denied
            without prejudice.      Despite his failure to
            file a brief with regard to his request for
            a reconsideration of the [c]ourt's May 9,
            2014     [o]rder,       [p]laintiff       requests
            reconsideration     of   the    [o]rder    denying
            substantial       and      permanent       changed
            circumstances. The [c]ourt has reviewed the
            paperwork    submitted     by    [p]laintiff    in
            support of this application, and does not
            find he has met his burden.              Plaintiff
            submitted an updated CIS (but not the
            previous one).       Plaintiff's CIS does not
            indicate [p]laintiff is unable to afford his
            lifestyle, indicating a low credit card debt
            of $900.00.      The [c]ourt cannot find any
            evidence it overlooked or that it erred in
            its determination to sustain [p]laintiff's
            motion for reconsideration.        Plaintiff also
            submitted an additional letter from his
            cardiologist, Jeffrey Kramer, M.D., dated
            April 29, 2014 indicating the [p]laintiff is
            currently not capable of returning to work
            unless    he   experiences      an     "unexpected
            dramatic    improvement      to    his    clinical
            status[.]"[]    However, a letter sent by Dr.
            Kramer on the same date to another doctor
            indicates [p]laintiff is making progress.

    Plaintiff argues on appeal that the trial court abused its

discretion by determining he had not demonstrated a change in

circumstances.        His   argument      is     uncomplicated:        he    had     a

disabling    heart    attack      and,   as     his    cardiologist    explained,

plaintiff "is certainly not capable of working at this time and



                                          6                                 A-0300-14T2
may not be able to return to work unless there is a significant

improvement in his cardiac status."            His disability is further

evidenced by the fact that he remains out of work, and has

qualified    for,   and    is   receiving    Social    Security    Disability

benefits.

     The duty to pay alimony and child support is always subject

to   modification     or   termination      upon   a   showing    of   changed

circumstances.      Lepis v. Lepis, 
83 N.J. 139, 146 (1980).              Among

the "changed circumstances" courts have recognized in warranting

modification are a "decrease in the supporting spouse's income"

and "illness, disability or infirmity arising after the original

judgment[.]"    Id. at 151 (citations omitted).          Nonetheless,

            The party seeking modification has the
            burden     of     showing     such      "changed
            circumstances" as would warrant relief from
            the   support    or   maintenance     provisions
            involved. A prima facie showing of changed
            circumstances must be made before a court
            will order discovery of an ex-spouse's
            financial   status.     When   the   movant   is
            seeking modification of an alimony award,
            that party must demonstrate that changed
            circumstances have substantially impaired
            the ability to support himself or herself.
            This   requires    full   disclosure    of   the
            dependent     spouse's     financial     status,
            including tax returns. When the movant is
            seeking modification of child support, the
            guiding principle is the "best interests of
            the children." A prima facie showing would
            then   require   a   demonstration    that   the
            child's needs have increased to an extent
            for which the original arrangement does not
            provide.



                                      7                                A-0300-14T2
             [Id. at 157 (citations omitted).]

       If   the   party    seeking       modification         or     elimination     of    a

support obligation establishes a prima facie showing of changed

circumstances that has "substantially impaired the [obligor's]

ability to support himself or herself," the court should require

both    parties     to    make    "full    disclosure"          of    their   financial

status,     including     tax    returns,       and    thereafter       determine       the

extent      of    any    modification          of     the     alimony       obligation.

Ibid.

       In addition to demonstrating changed circumstances, a party

seeking to modify alimony and child support obligations must

comply with the court rules.                The rules require, among other

things, that

             [w]hen a motion or cross-motion is brought
             for the entry or modification of an order or
             judgment for alimony or child support based
             on changed circumstances, the pleading filed
             in support of the motion shall have appended
             to it a copy of the prior case information
             statement or statements filed before entry
             of the order or judgment sought to be
             modified and a copy of a current case
             information statement.

             [R. 5:5-4(a).]

       Here,     plaintiff   on    his    original          motion    did   not   file     a

timely current CIS and it appears from the appellate record that

he did not file any previous CIS.                   Those documents were not only




                                           8                                      A-0300-14T2
required to be filed with the initial pleadings in support of

the motion, but they would have contained information relevant

to a determination as to whether plaintiff established a prima

facie case of changed circumstances.

       Plaintiff did eventually submit documents establishing that

he    had    suffered   a     disabling   heart   attack,     resulting      in   his

eligibility for Social Security Disability benefits.                       The trial

court stated that plaintiff's "late submission of an April 29,

2014 letter from his doctor does not sway this [c]ourt," but

that statement could be interpreted in several ways.                        Did the

court       disregard   the    cardiologist's     opinion     because      plaintiff

belatedly submitted it on his motion?                 Did the court not believe

that    plaintiff       had      suffered     a   disabling        heart     attack,

notwithstanding that he was not working and was receiving Social

Security Disability benefits?             Or did the court conclude that a

heart attack that disables a person from working and qualifies

that person for Social Security Disability is not a changed

circumstance, notwithstanding the language in Lepis that courts

have recognized illness, disability or infirmary arising after

the    original     judgment     as   a   qualifying     changed     circumstance?

Although      the   court's     statement     could    have   been   clearer,     one

possibility is that without a previous and current CIS the court

could not make a reliable decision as to whether plaintiff's




                                          9                                 A-0300-14T2
circumstances had undergone such a significant change that the

court    should    order     new   financial      disclosures      from     plaintiff

pursuant    to     Rule    5:5—4(a).      The    court     declined    to    consider

plaintiff's belatedly submitted CIS.                      In view of plaintiff's

failure to comply with the court rules, we cannot conclude that

the court misapplied its sound discretion in denying plaintiff's

motion.     See Larbig v. Larbig, 
384 N.J. Super. 17, 21 (App. Div.

2006).

       Plaintiff has appealed only from the court's denial of his

motion for reconsideration.               A motion for reconsideration is

addressed    to    the    "'sound    discretion       of    the    [c]ourt,     to   be

exercised in the interests of justice.'"                    Cummings v. Bahr, 
295 N.J.    Super.     374,   384    (App.    Div.    1996)     (quoting      D'Atria    v.

D'Atria,     242     N.J.       Super.    392,      401     (Ch.    Div.     1990)).

Reconsideration      is     reserved     for    "cases     which   fall     into   that

narrow corridor" where the prior decision was "based upon a

palpably incorrect or irrational basis," or failed to consider

or   appreciate     "probative,         competent    evidence[,]"      or    where     a

"litigant wishes to bring new or additional information to the

[c]ourt's attention which it could not have provided on the

first application[.]"           Ibid.     (quoting D'Atria, supra, 
242 N.J.

Super. at 401-02).




                                          10                                  A-0300-14T2
      Here, because plaintiff's original motion was defective,

and because plaintiff does not appear to have requested the

court to consider any information that was not available to him

when he filed the original motion, we cannot conclude the trial

court    abused      its     discretion         by       denying   plaintiff's

reconsideration motion.

      We note that the trial court denied both motions without

prejudice.    We presume that means that the court will consider

the merits of plaintiff's motion when he files a motion that

complies with the procedural requirements of the court's rules.

When that occurs, if the court determines plaintiff has not

established a prima facie case of changed circumstances, we are

confident    it   will   include    a    thorough    explanation    for    either

rejecting the reports of plaintiff's doctors without a hearing

or   otherwise    concluding   that      plaintiff    has    not   demonstrated

changed circumstances, notwithstanding that he suffered a heart

attack that disabled him from working, an "illness, disability

or   infirmity    arising   after       the   original    judgment"   that      our

Supreme Court has cited as an example of a changed circumstance.

Lepis, supra, 
83 N.J. at 151 (citations omitted).

      Affirmed.




                                         11                               A-0300-14T2


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