JOSEPH D. BOWEN v. SUSAN BOWEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JOSEPH D. BOWEN,

Plaintiff-Appellant,

v.

SUSAN BOWEN,

Defendant-Respondent.

___________________________________

August 18, 2015

Submitted July 21, 2015 Decided

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 defendant 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." Recounting his efforts, defendant 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 "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 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."

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 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.

[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 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 circumstances had undergone such a significant change that the court should order new financial disclosures from defendant 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).

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.

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.