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Dueno v. Dueno

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 27, 2007

ELSA DUENO, PLAINTIFF-RESPONDENT,
v.
ANTHONY DUENO, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, FM-18-17-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 9, 2007

Before Judges Lintner and Alvarez.

Defendant Anthony Dueno appeals from an order denying modification of alimony and child support payable to plaintiff Elsa Dueno. The parties' 1996 divorce judgment incorporated a property settlement agreement which fixed the amount of monthly payments. The youngest child of the marriage, now of age, is permanently disabled and resides with plaintiff.

Since the divorce, defendant, who is now sixty-seven, has retired from his second career as a result of significant medical problems, including the loss of vision in one eye and heart disease. He is remarried and has an infant.

Several motions for enforcement of litigant's rights as well as modification of alimony and child support have previously been filed since the divorce. In July 2006, defendant sought again to reduce his financial obligations to plaintiff and their child, alleging changed circumstances resulting from his health and medical expenses. Defendant did not attach copies of medical bills to this application. Accordingly, by letter opinion issued August 2006, the motion was denied. In reaching its decision, the motion court specifically mentions defendant's failure to file appropriate documentation going back to 2003, when he suffered his first stroke.

Thereafter, both parties filed for reconsideration. Defendant at last appropriately documented his medical expenses of $10,710.92 for 2005 and of $36,364.60 for 2006. In November 2006, the reconsideration motions were denied. In her otherwise detailed opinion, the motion judge made no reference to the medical bills belatedly supplied in support of the requested modification. In fact, she noted that defendant proffered no new change in circumstances since the August order which would warrant review. This appeal followed. For the reasons set forth below, we remand for the sole purpose of conducting a plenary hearing on the question of whether defendant is entitled to modification of his child support and alimony obligations based on the uninsured health care costs.

A litigant seeking modification of a support order must make a prima facie showing of changed circumstances in order to be entitled to a plenary hearing. Lepis v. Lepis, 83 N.J. 139, 157-59 (1980); Miller v. Miller, 160 N.J. 408, 420 (1999). Only then can a court assess the fairness of an existing order of support. Dorfman v. Dorfman, 315 N.J. Super. 511, 515 (1998). In deciding whether an order of support continues to be fair, a court must strive to balance the equities. Heuer v. Heuer, 152 N.J. 226, 233 (1998) (quoting Kazin v. Kazin, 81 N.J. 85, 91 (1979)). The documents defendant finally supplied in October 2006 were essential to the claims he unsuccessfully made on several prior occasions. Without them, no determination could have been made fairly. It is regrettable for the parties and the court that defendant previously failed to corroborate his claims and supply the necessary records. It is also regrettable for the parties and the court that at this late date the matter requires additional proceedings. But in the interest of justice, as it does not appear the motion judge considered defendant's proofs, a plenary hearing is necessary. Defendant will be afforded the opportunity to document the uninsured portion of his bills for medical treatment and the effect they have on his financial status. It may well be that these proofs will establish changed circumstances such as would warrant modification of defendant's obligations.

We do not retain jurisdiction.

20071127

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