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Thelmo v. Thelmo


January 22, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FM-15-1433-01N.

Per curiam.


Argued November 13, 2007

Before Judges Graves and Alvarez.

Defendant Franklin L. Thelmo appeals from a December 8, 2006 order, which, among other things, denied him a plenary hearing as to whether his asserted changed circumstances warranted a reduction in his child support obligations. The order also reaffirmed enforcement of litigant's rights previously granted to plaintiff Evamarie Thelmo. We affirm.

The parties divorced on February 25, 2003, and entered into a property settlement agreement which comprehensively addressed child support, including private school tuition, summer camp, dental insurance, and maintenance of $150,000 of life insurance. They have two children, ages fourteen and ten. Plaintiff is a registered nurse and defendant a urologist.

Based on plaintiff's motion to enforce litigant's rights, which defendant did not oppose, the court entered an order on October 6, 2006, that fixed defendant's support arrears at $15,105.77, imposed an equitable lien of $350,000 on defendant's office building as security for future support, and awarded plaintiff $1250 in attorney's fees. In mid-October defendant sought to vacate the October 6 order, and in early November sought to stay any future enforcement. The December 8 order now on appeal was the eventual outcome of the proceedings triggered by the various applications. Defendant's deteriorating health has caused him, he alleges, to be severely limited in his ability to practice medicine. At seventy-three, he suffers from pulmonary disease, cardiac issues requiring the implantation of a pacemaker, deterioration in his eyesight, and crippling problems in his dominant hand. He sold the marital home which he retained pursuant to the parties' agreement, has sold a condominium he bought thereafter, and, the plaintiff claims, is planning to return to live permanently in the Philippines. Relief was denied to defendant as the court found that without the filing of a Case Information Statement (CIS) or any other financial information, he could not establish a prima facie case of changed circumstances warranting a plenary hearing. Lepis v. Lepis, 83 N.J. 139, 158 (1980); see also R. 5:5-4(a) (requiring that when a motion is brought to modify an order or judgment for alimony or child support, the motion shall include copies of any prior CIS together with a copy of a current CIS).

The requirement that a CIS be filed when downward modification of support is sought is more than mere "window dressing." Gulya v. Gulya, 251 N.J. Super. 250, 253 (App. Div. 1991). It is necessary so the court will have "a complete picture of the finances of the movants in a modification case." Ibid.

As the motion court said: if defendant seeks to modify the terms of the [f]inal [j]udgment of [d]ivorce, he must first establish changed circumstances pursuant to Lepis. Defendant has shown nothing in this regard. Defendant's application is denied without prejudice . . . .

If there is a future application by the defendant[,] plaintiff will have the right to discovery, including but not limited to[,] a notice to produce and depositions of the doctor while waiting for a return date.

Any future application by the defendant must include a Case Information Statement and what happened to the funds from the sale of the defendant's various properties.

Perhaps defendant's confusion arises from the language in the cases referencing full financial discovery as opposed to the filing of a CIS. A CIS is the minimum criteria necessary to determine financial circumstances. It is an essential starting point, a snapshot of a person's financial circumstances. See Crews v. Crews, 164 N.J. 11, 27 (2000) (explaining that "CIS information generally reflects a more current financial picture of the parties"). But in Dorfman v. Dorfman, 315 N.J. Super. 511, 515 (App. Div. 1998) for example, the court said: the moving party has the burden to make a prima facie showing of changed circumstances warranting relief prior to the court ordering discovery of the full financial circumstances of each party. If that showing is made, and after receipt of ordered discovery, the judge then determines whether the changed circumstances justify modification. A plenary hearing may be necessary to adjudicate the matter if there are genuine issues of material fact. [(citations omitted).]

Id. at 517. In other words, a CIS and supporting documentation are threshold requirements for establishing changed circumstances. Substantial discovery may still thereafter be warranted prior to the determination of whether the circumstances have truly changed, or whether a plenary hearing is necessary because there are material conflicts of fact. Compliance with the rule and common sense require the filing of a CIS and appropriate supporting documentation, including tax returns, as called for by the judge's December 8 order. R. 5:5-4(a).

This case exemplifies the problem addressed by Rule 5:5-4(a). Here, plaintiff alleges that despite defendant's asserted limited ability to work, his significant proceeds from recent real estate transactions make any downward modification of support inequitable. Due to these conflicting claims, in the absence of a CIS, a court cannot make any assessment as to whether defendant's health establishes a prima facie case of changed circumstances. The burden is on defendant to comply with the court rules in order to make the necessary showing. To this point, he has not done so.



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