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Zhao v. Zhang

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 23, 2009

HAI YAN ZHAO, PLAINTIFF-APPELLANT,
v.
FU ZHOU ZHANG, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FD-02-553-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 2, 2009

Before Judges Sabatino and Simonelli.

Plaintiff Hai Yan Zhao appeals from the denial of her motion to increase child support and alimony payments. She contends that the trial judge erred in failing to find changed circumstances. We affirm.

Because the record contains no complaint for divorce, no final judgment of divorce and no complaint for summary action for support, we cannot discern when and where plaintiff and defendant Fu Zhou Zhang were married, or even if they are presently divorced. However, from two orders entered in a non-dissolution matter on November 15, 2007, and from the child support guidelines attached thereto, we can discern that plaintiff sought custody and support for the parties' two children, but not alimony. Pursuant to the guidelines, defendant was ordered to pay $1802 in monthly child support. There is no order awarding plaintiff alimony.

The record also does not contain plaintiff's motion papers or any Case Information Statements. It merely contains three documents purportedly showing additional income defendant received from a bonus and stock dividends. From our review of the transcript of the hearing before the motion judge, plaintiff claimed changed circumstances based on these documents. The motion judge denied the motion, finding that the documents were insufficient to modify the current support order. We agree.

We first emphasize that in this non-dissolution matter, there is no evidence that plaintiff sought or was awarded alimony. Thus, we reject her contention that she is entitled to an increase in alimony.

Also, the three documents purportedly showing an increase in defendant's income are inadmissible hearsay. They are not verified by affidavit or certification made under oath by an individual with personal knowledge as required by Rule 1:6-6. See also Celino v. General Acc. Ins., 211 N.J. Super. 538, 544 (App. Div. 1986). The appending of those documents to the motion papers without such supporting affidavits or certifications does not constitute compliance with Rule 1:6-6. Celino, supra, 211 N.J. Super. at 544. Further, counsel's statements in motion briefs that are neither of record, judicially noticeable, nor stipulated do not constitute cognizable facts. See, e.g., Gonzalez v. Ideal Tile Importing Co., 371 N.J. Super. 349, 358 (App. Div. 2004), aff'd, 184 N.J. 415; Templeton Arms v. Feins, 220 N.J. Super. 1, 24 (App. Div. 1987).

We agree with the motion judge that plaintiff did not provide sufficient evidence showing changed circumstances warranting an increase in child support. Plaintiff failed to provide any competent evidence that defendant's income has increased or that she is entitled to an increase in child support.

Affirmed.

20090223

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