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Tekelch v. Tekelch

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 29, 2008

SUSAN R. TEKELCH A/K/A BOODY, PLAINTIFF-RESPONDENT,
v.
COREY D. TEKELCH, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1683-07D.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 6, 2008

Before Judges Carchman and R. B. Coleman.

Defendant Corey Tekelch appeals from a June 27, 2007 order of the family part denying his motion to decrease child support. In addition, defendant appeals from the denial of his motion for reconsideration, memorialized in an order of August 31, 2007.

We affirm.

Before stating the facts, we observe that the record supplied to us by defendant is woefully inadequate. We recognize that defendant is appearing pro se and modest indulgencies are appropriate; however, the sparing appendix provided, including only selective portions of the record and excluding matters considered by the judge in his ruling, does a disservice to not only the bench but the litigants as well. We recognize that on occasion, we have dismissed appeals for procedural deficiencies, see Cherry Hill Dodge, Inc. v. Chrysler Credit Corp., 194 N.J. Super. 282 (App. Div. 1984); see also Venner v. Allstate, 306 N.J. Super. 106, 110 (App. Div. 1997), a course of action we decline to follow here. Yet, nevertheless, some comment is warranted as we resolve this appeal on a less than adequate record.

The facts as they appear in the limited record before us are that plaintiff Susan Tekelch, now Susan Boody, and defendant Corey Tekelch were divorced by judgment of December 13, 2000. They have one child, a son, who is ten years old and resides with his mother.

The judgment of divorce provides that defendant "shall continue to pay $50.00 per week as child support for the minor child through the appropriate probation department." Of relevant interest to the issues raised on this appeal, the next paragraph of the judgment states that "[t]he Defendant must find employment as soon as possible." Other provisions of the agreement inform us that defendant was in arrears at the time of entry of the judgment.

In May 2007, defendant moved to decrease child support payments, simply indicating that he had no income "per doctors saying I can't work." The record before us contains nothing substantiating that allegation other than defendant's statements that he is undergoing medical tests, is on public assistance and later, that he could not secure employment as he had failed the private investigator's exam, resulting in a loss of his public investigator's license. The motion judge alluded to various medical records, but they were not included in the appendix.

So, too, various issues were raised by plaintiff although none of her submissions have been made a part of the record. She questioned whether defendant was operating a business with his live-in girlfriend or another friend living in his two other sons' apartment building. Nothing was provided by way of a Case Information Statement, see R. 2:5-1(f)(2), or other indicia of defendant's present financial circumstances. Ultimately, as we have noted, the judge determined that defendant's asserted change in circumstances was temporary, and he denied defendant's motion without prejudice. The motion for reconsideration generated the same result.

On appeal, defendant asserts that the "current child support obligation is manifestly unreasonable, arbitrary, and clearly contrary to reason and submitted evidence, and is the result of whim or caprice. The record and evidence submitted does not support the trial court judge's decision."

We adhere to the general rule that a party seeking modification of a support order bears the burden of demonstrating changed circumstances. Dorfman v. Dorfman, 315 N.J. Super. 511, 515 (App. Div. 1998) (citing Lepis v. Lepis, 83 N.J. 139, 157-59 (1980)). See also Isaacson v. Isaacson, 348 N.J. Super. 560, 579 (App. Div.), certif. denied, 174 N.J. 364 (2002). We will not modify a support award where the changed circumstances are merely temporary. Lepis, supra, 83 N.J. at 151; Bonanno v. Bonanno, 4 N.J. 268, 275 (1950).

As we have noted, our review here of the nature of defendant's changed circumstances is constrained by the absence of any meaningful record; nevertheless, we conclude that his asserted disability as well as his lack of employment is, indeed, temporary. Defendant's reliance on public assistance will be abated when he secures employment, his asserted medical conditions suggest no permanency, and we conclude that the judge appropriately denied the application without prejudice.

Affirmed.

20081029

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