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Bennett v. Bennett

Superior Court of New Jersey, Appellate Division

July 10, 2013

RICHARD BENNETT, Plaintiff-Respondent,
CHERYL BENNETT, Defendant-Appellant.


Submitted May 6, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-439-99.

Cheryl Bennett, appellant pro se.

Forster & Arbore, attorneys for respondent (Lawrence D. Forster, on the brief).

Before Judges Ashrafi and Guadagno.


In this appeal, defendant Cheryl Bennett continues litigation that began more than thirteen years ago and has returned the parties to court on numerous occasions to resolve financial disputes, including two appearances before us. Bennett v. Bennett, No. A-0939-04 (App. Div. June 14, 2006), Bennett v. Bennett, No. A-3009-07 (App. Div. Mar. 27, 2009).

Defendant appeals from the January 6, 2012 order of the Family Part denying portions of her post-judgment matrimonial motion. She argues that the court erred in: (1) denying her request for financial discovery based upon changed circumstances; (2) denying her request for a hearing to determine college allocations for the two children; (3) denying her request for reimbursement of certain of the children's medical expenses; (4) retroactively modifying plaintiff's percentage responsibility from 75% to 64.70%; and (5) denying her request for an increase in life insurance.

We have carefully considered the arguments of the parties in light of the record and the applicable law. We are satisfied that plaintiff's arguments lack sufficient merit to warrant further consideration in a written opinion. R. 2:11-3(e)(1)(E). We affirm the January 6, 2012 order substantially for the reasons stated by Judge Michael Paul Wright in his cogent and comprehensive written statement of reasons accompanying his order. We add only the following brief comments.

We will not disturb a trial court's factual findings if they are supported by competent, relevant and credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). This is particularly true in matters arising from the Family Part, in which we ordinarily defer to the judge's special expertise. See Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).

In denying defendant's request for financial discovery, Judge Wright found that defendant failed to present a prima facie showing of changed circumstances that would trigger financial disclosure. We agree. Defendant's primary argument is that the March 26, 2010 order, entered following our second remand, "established the child support based upon the parties' financial circumstances and the children's needs in 2004." Although the 2010 order was made retroactive to September 9, 2004, the order clearly established plaintiff's child support obligation, and the parties' respective share of income, as of the date of the order, March 26, 2010.

Defendant filed her current motion on August 8, 2011, slightly more than one year after the entry of the March 26, 2010 order. In order to make a prima facie showing to obtain discovery, she was required to show a change of circumstances from the entry of the 2010 order, not the 2004 order. See Lepis v. Lepis, 83 N.J. 139, 157 (1980) ("The party seeking modification has the burden of showing such 'changed circumstances' as would warrant relief from the support or maintenance provisions involved.") (emphasis supplied).

Defendant's submission of plaintiff's 2003 Case Information Statement and 2 002 income tax returns accompanied by her projection of what she assumes plaintiff's income "is likely to be in 2 011" amounts to nothing more than speculation Judge Wright's decision is adequately supported by substantial credible evidence in the record R 2:11-3(e)(1)(A)

To the extent that we have not specifically addressed any of defendant's additional arguments we find them to be without sufficient merit to warrant a discussion in a written opinion R 2:11-3(e)(1)(E)


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