NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2012
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-80-98.
Dunne & Associates, LLC, attorneys for appellant (F.R. "Chip" Dunne, III, on the brief).
Damiano Law Offices, attorneys for respondent (Toni Belford Damiano, of counsel; Nancy B. Murray, on the brief).
Before Judges Sapp-Peterson and Haas.
Defendant Michael Malanga (husband) appeals from the August 31, 2011 Family Part order denying his post-judgment cross-motion seeking a reduction in child support, an accounting of the custodial accounts of the two children of the marriage, and credit for previous medical payments made. On appeal, husband contends the court abused its discretion by failing to order a plenary hearing, was incorrect in its assessment of payments he made for unreimbursed medical expenses, and improperly denied his request for an accounting of wife's use of the $37, 000 in funds held in trust for each of the parties' children. We reject these contentions and affirm substantially for the reasons expressed in Judge Siobhan A. Teare's comprehensive August 31, 2011 written opinion.
The parties were divorced in 1999 following a thirteen-day trial. The final judgment of divorce (FJOD) granted custody of the two children born of the marriage to plaintiff Debra Malanga (wife). Husband was ordered to provide full health care insurance coverage for the children and pay 67.5% of unreimbursed medical expenses. The court additionally ordered that he pay $273 in weekly child support and execute the necessary documents "to change the designation of the trustee/guardian on any and all of the children's custodial accounts, which exceed $37, 000 each, to [wife's] name[.]"
In 2011, wife initiated an enforcement action because husband had defaulted on his obligation to pay his share of the unreimbursed medical and health expenses for several years and also for having allowed the health insurance to lapse for one month between December 2010 and January 2011. The court granted wife's motion and also granted husband's cross-motion for reimbursement of child support for the time their son lived with him and for reimbursement of medical expenses for son's psychiatric visits. The court denied husband's application to modify child support based upon changed circumstances, concluding that husband had failed to establish a prima facie case of changed circumstances under Lepis v. Lepis, 83 N.J. 139 (1980). In its June 14, 2011 order, the court expressly noted that husband failed to supply the court with his business tax returns or any medical evidence that he was in need of surgery.
Husband moved for reconsideration. The court conducted oral argument, during which it took sworn testimony from wife and husband. It also took testimony from husband's treating orthopedic surgeon, Dr. Peter Dipaolo.
Husband testified he put money into a 12% certificate of deposit account when the children were born, valued at $37, 000 at the time of the divorce. He estimated the value of the account would have accrued to $284, 528.73, if wife had maintained the account. He testified that he made direct payments for his children's activities. Husband also produced cancelled checks for the court's review. Many of the checks had nothing written in the memo portion. Those for which there were entries in the memo section bore the description, "[f]ull payment for un-reimbursed medical[, ]" "un-reimbursed medical 03" and "unreimbursed medical."
Dr. Dipaolo testified he is a friend of husband in addition to being his treating physician. He diagnosed husband as suffering from post-traumatic arthritis in his shoulders stemming from injuries husband sustained during high school. While husband had undergone shoulder surgery in early 1998 to remove calcium deposits, he found that the arthritis in his shoulders inhibited husband's range of motion, directly affecting husband's activities as an auto body mechanic. He had been recommending total joint replacement for both shoulders since 1998, noting that each shoulder would have to be done separately and recovery time would be three to four months.
Dr. Dipaolo also treated husband for post-traumatic arthritis in his right knee. He testified that husband had undergone surgery in 1999 to repair a patella tendon and a second surgery in 1999 to reconstruct his ACL. He also recommended total joint replacement, with the recovery time for this surgery requiring another three to four months. He did not recommend that this surgery be performed at the same time as the recommended shoulder surgery. He testified he had been recommending the joint replacement surgery for ...