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Michele Almeida F/K/A Michele Buckman v. Kevin M. Dykhouse

February 9, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, FD-16-1730-98.

Per curiam.


Submitted January 24, 2012

Before Judges Reisner and Simonelli.

Defendant Kevin Dykhouse appeals from portions of a December 6, 2010 order of the Family Part, in favor of plaintiff Michele Almeida. We affirm in part and remand in part.

The parties, who were never married, have one son. They have engaged in protracted motion practice over the son's medical expenses and related financial issues. In this round, defendant appeals from those portions of a December 6, 2010 Family Part order requiring him to: pay plaintiff $760.96 for the son's unreimbursed medical expenses; pay fifty percent of plaintiff's health insurance premiums attributable to the son; and pay plaintiff's counsel fees in the amount of $3711 for the current motion.

To avoid any confusion in future proceedings between the parties, including the remand we are ordering here, plaintiff has not appealed from the provisions of the December 6 order requiring him to pay $1200 to plaintiff's counsel, pursuant to prior court orders; denying his request for proof of "insurance and registration"; and denying his request for parenting time. Defendant failed to brief the issue of his obligation to pay half the son's college expenses, thereby waiving his right to pursue that issue on appeal.*fn1 See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011).

In an earlier order, entered on April 4, 2008, the court ordered defendant to pay plaintiff $514 for unreimbursed medical expenses. Plaintiff admits defendant complied with the order and paid her the $514. In the motion giving rise to this appeal, plaintiff sought reimbursement for additional medical expenses, some of which pre-dated April 4, 2008. Defendant claimed that she was "double-dipping" or seeking duplicate payment for pre-April 4 bills. He also contended that in seeking payment for unreimbursed medical bills, plaintiff failed to account for her responsibility, as the custodial parent, to pay the first $250 of those expenses. He further claimed he should not be responsible for forty-eight per cent of the $682.25 cost of a new insulin pump for the couple's diabetic son, because it was allegedly a "gift" to the son from plaintiff. Plaintiff, on the other hand, submitted a certification attesting that the son's old insulin pump was outmoded, out of warranty, and too expensive to repair.

After hearing argument from the parties on October 15, 2010, the Family Part judge found, based on the record, that defendant was taking an unreasonable litigation position in refusing to contribute to the $682.25 cost of replacing "a four year old [insulin] pump, which wasn't particularly in good shape." He found that to be a reasonable expense. He also ruled that plaintiff was entitled to reimbursement for medical services rendered after the April 4, 2008 order was issued "or bills which appear to have been received after that date," and to which defendant had not contributed. The judge also indicated that he would give defendant a credit for diabetic supplies he purchased for the son while the son was visiting with him. He ruled that defendant was entitled to a $250 annual deduction from plaintiff's claim for unreimbursed medical expenses. However, he "reserved on all specifics" concerning the amount defendant owed, and whether defendant was required to make an additional contribution to the son's health care or whether an amount for health care had previously been incorporated into his child support obligation. The judge also stated, without giving reasons, that plaintiff's counsel could submit a "certification of services."

Based on the record presented to us, the only contested issue we can decide on this appeal concerns the insulin pump. As to that issue, the judge's decision to require defendant to pay his share of the $682.25 cost of the pump is supported by substantial credible evidence, and we affirm. See Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Defendant's assertion, that the pump was a "gift" to which he need not contribute, is utterly without merit. R. 2:11-3(e)(1)(E).

Although the judge indicated that he would give further consideration to the issues, the appellate record presented to us contains no further statement of reasons explaining: the basis for the court's additional award of medical reimbursement, beyond the $327.48 defendant owed for the pump; his order that defendant contribute to health insurance premiums; the reasons for awarding plaintiff her counsel fees; and findings as to the reasonableness of the amount of the fees sought. Therefore, we are compelled to remand this matter to the Family Part for reconsideration of those issues and a statement of reasons for whatever decision the court makes on the issues.*fn2 We do not retain jurisdiction.

Affirmed in part, remanded ...

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