NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1999-20
CLAUDIA C. OSIS,
Plaintiff-Respondent,
v.
TEOBALDO M. OSIS,
Defendant-Appellant. _______________________
Argued April 4, 2022 – Decided July 28, 2022
Before Judges Rose and Enright.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-1242-18.
Jodi Argentino argued the cause for appellant (Argentino Fiore Law & Advocacy, LLC, attorneys; Jodi Argentino, of counsel and on the briefs; Celeste Fiore and Christina Salvia, on the briefs).
Kenneth R. Rush, argued the cause for respondent (DiLorenzo & Rush, attorneys; Kenneth R. Rush, of counsel and on the brief.)
PER CURIAM In this post-judgment matrimonial matter, defendant Teobaldo Osis
appeals from a February 9, 2021 Family Part order: granting plaintiff Claudia
Osis's motion for alimony arrears; and denying his cross-motion to terminate or
modify his alimony obligation, and modify the parties' parenting schedule. On
appeal, defendant contends the motion judge abused her discretion by ordering
a lump sum alimony payment, without assessing defendant's ability to pay or the
parties' financial circumstances. Defendant also argues the judge erroneously
determined he failed to demonstrate a change of circumstances under Lepis v.
Lepis, 83 N.J. 139 (1980), warranting a reevaluation of alimony, and
modification of custody or parenting time. Procedurally, defendant claims the
motion judge abused her discretion by failing to hold oral argument on the return
date for the cross-motions and schedule a plenary hearing on the disputed factual
issues; deciding the cross-motions months after all moving papers were filed;
and failing to make sufficient findings of fact and conclusions of law.
Discerning no abuse of discretion or error of law warranting a reversal, we
affirm.
I.
The parties married in April 2012 and have two children together: a
daughter, born in December 2011, and a son, born in August 2016. Plaintiff also
A-1999-20 2 has a son, born in February 2009, from a previous relationship, whom defendant
has raised since the child's arrival from Peru at age two. 1
When the parties divorced in July 2019, they executed a marital settlement
agreement (MSA), which was incorporated in their dual judgment of divorce.
At that time, plaintiff had been released on bail, facing federal indictment in the
Eastern District of New York for drug trafficking charges, and was subject to
deportation if convicted. The MSA addressed that contingency as follows.
The parties agreed to share joint legal custody of all three children.
Plaintiff was designated the parent of primary residential custody, and defendant
was afforded equal parenting time pursuant to the two-week, rotating schedule
set forth in the agreement. However, the MSA provided defendant would have
sole legal and physical custody of all three children if plaintiff were
"incarcerated for more than [thirty] days, no longer permanently in the United
States, or until otherwise agreed [to] in writing or pursuant to court order."
The MSA specifically noted plaintiff's shift work at McDonald's
"change[d] with great frequency." Accordingly, plaintiff was permitted to
"suggest 'swaps' of parenting time as appropriate." If plaintiff and defendant's
1 Defendant has an adult daughter from another relationship, who is not pertinent to this appeal. A-1999-20 3 parents were unavailable to care for the children, defendant was required to
"arrange . . . and pay for alternate child care."
Defendant agreed to pay plaintiff $2,550 per month in alimony for three
years. As to the potential for earlier termination of alimony payments, the MSA
provided:
[A]limony shall automatically terminate upon [plaintiff]'s deportation, incarceration, or permanent absence from the United States ("permanent" meaning two months or more). Alimony shall be terminable upon [plaintiff]'s subsequent marriage or civil union and/or terminable or subject to reduction based upon cohabitation under N[ew] J[ersey] statute or case law or for any other change of circumstances.
Recognizing the parties shared parenting time of the three children, the
MSA specified the parties agreed to deviate from the Child Support Guidelines,
and neither party would pay the other "direct" child support. Instead, the parties
agreed to pay "all reasonable costs for the children which [we]re not already
included in child support on a [fifty-fifty] basis." Further, the parties stipulated
that if the parenting schedule or defendant's alimony obligation changed, the
equal allocation of the children's "reasonable costs" would be modified based
on "the actual parenting time and all income numbers."
About five months after the divorce, on December 26, 2019, plaintiff
applied, pro se, for an order to show cause for emergent relief, alleging
A-1999-20 4 defendant had not paid alimony since November 19, 2019. Plaintiff claimed
defendant's delinquency affected her ability to pay rent and, as such, she and the
children faced homelessness. Her emergent application was denied but a
hearing in the ordinary course was scheduled for January 24, 2020.
Defendant failed to appear on the January 24 return date. He later claimed
he was not noticed of the hearing. Because no order issued on that date, defense
counsel wrote to the court seeking permission to file a cross-motion and carry
the matter to March 27. The judge instead adjourned the return date to March
13 and allowed defendant to file responding papers by March 5. Defendant's
timely submission was limited to a certification with exhibits; it did not,
however, include a current case information statement (CIS). See R. 5:5-4(a)(4).
According to defendant, plaintiff "barely ever ha[d] parenting time with
[their] children." Defendant annexed to his certification copies of calendars,
memorializing plaintiff's missed overnight parenting time. Defendant claimed
plaintiff failed to provide advance notice of her schedule and neglected to
request swap time. As one notable example, defendant stated "in November,
[p]laintiff exercised only [two] of the [fourteen] overnights that she would have
had under the [MSA]." Defendant also asserted the children complained
plaintiff had no food in her home, "provide[d] nothing for their after[-]school
A-1999-20 5 activities," and failed to afford the children "basic things like haircuts."
However, defendant acknowledged plaintiff "ha[d] more parenting time than
usual" in December, albeit "while her motion was pending." He requested an
accounting as to the alleged alimony arrears and an ability-to-pay hearing.
According to defendant's merits brief on appeal, defense counsel
requested an adjournment the day before the March 13 return date "due to the
rising Covid-19 pandemic." The judge denied the request and indicated the
cross-motions would be heard "on the papers."
By mid-August 2020, with the parties' applications still undecided – and
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1999-20
CLAUDIA C. OSIS,
Plaintiff-Respondent,
v.
TEOBALDO M. OSIS,
Defendant-Appellant. _______________________
Argued April 4, 2022 – Decided July 28, 2022
Before Judges Rose and Enright.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-1242-18.
Jodi Argentino argued the cause for appellant (Argentino Fiore Law & Advocacy, LLC, attorneys; Jodi Argentino, of counsel and on the briefs; Celeste Fiore and Christina Salvia, on the briefs).
Kenneth R. Rush, argued the cause for respondent (DiLorenzo & Rush, attorneys; Kenneth R. Rush, of counsel and on the brief.)
PER CURIAM In this post-judgment matrimonial matter, defendant Teobaldo Osis
appeals from a February 9, 2021 Family Part order: granting plaintiff Claudia
Osis's motion for alimony arrears; and denying his cross-motion to terminate or
modify his alimony obligation, and modify the parties' parenting schedule. On
appeal, defendant contends the motion judge abused her discretion by ordering
a lump sum alimony payment, without assessing defendant's ability to pay or the
parties' financial circumstances. Defendant also argues the judge erroneously
determined he failed to demonstrate a change of circumstances under Lepis v.
Lepis, 83 N.J. 139 (1980), warranting a reevaluation of alimony, and
modification of custody or parenting time. Procedurally, defendant claims the
motion judge abused her discretion by failing to hold oral argument on the return
date for the cross-motions and schedule a plenary hearing on the disputed factual
issues; deciding the cross-motions months after all moving papers were filed;
and failing to make sufficient findings of fact and conclusions of law.
Discerning no abuse of discretion or error of law warranting a reversal, we
affirm.
I.
The parties married in April 2012 and have two children together: a
daughter, born in December 2011, and a son, born in August 2016. Plaintiff also
A-1999-20 2 has a son, born in February 2009, from a previous relationship, whom defendant
has raised since the child's arrival from Peru at age two. 1
When the parties divorced in July 2019, they executed a marital settlement
agreement (MSA), which was incorporated in their dual judgment of divorce.
At that time, plaintiff had been released on bail, facing federal indictment in the
Eastern District of New York for drug trafficking charges, and was subject to
deportation if convicted. The MSA addressed that contingency as follows.
The parties agreed to share joint legal custody of all three children.
Plaintiff was designated the parent of primary residential custody, and defendant
was afforded equal parenting time pursuant to the two-week, rotating schedule
set forth in the agreement. However, the MSA provided defendant would have
sole legal and physical custody of all three children if plaintiff were
"incarcerated for more than [thirty] days, no longer permanently in the United
States, or until otherwise agreed [to] in writing or pursuant to court order."
The MSA specifically noted plaintiff's shift work at McDonald's
"change[d] with great frequency." Accordingly, plaintiff was permitted to
"suggest 'swaps' of parenting time as appropriate." If plaintiff and defendant's
1 Defendant has an adult daughter from another relationship, who is not pertinent to this appeal. A-1999-20 3 parents were unavailable to care for the children, defendant was required to
"arrange . . . and pay for alternate child care."
Defendant agreed to pay plaintiff $2,550 per month in alimony for three
years. As to the potential for earlier termination of alimony payments, the MSA
provided:
[A]limony shall automatically terminate upon [plaintiff]'s deportation, incarceration, or permanent absence from the United States ("permanent" meaning two months or more). Alimony shall be terminable upon [plaintiff]'s subsequent marriage or civil union and/or terminable or subject to reduction based upon cohabitation under N[ew] J[ersey] statute or case law or for any other change of circumstances.
Recognizing the parties shared parenting time of the three children, the
MSA specified the parties agreed to deviate from the Child Support Guidelines,
and neither party would pay the other "direct" child support. Instead, the parties
agreed to pay "all reasonable costs for the children which [we]re not already
included in child support on a [fifty-fifty] basis." Further, the parties stipulated
that if the parenting schedule or defendant's alimony obligation changed, the
equal allocation of the children's "reasonable costs" would be modified based
on "the actual parenting time and all income numbers."
About five months after the divorce, on December 26, 2019, plaintiff
applied, pro se, for an order to show cause for emergent relief, alleging
A-1999-20 4 defendant had not paid alimony since November 19, 2019. Plaintiff claimed
defendant's delinquency affected her ability to pay rent and, as such, she and the
children faced homelessness. Her emergent application was denied but a
hearing in the ordinary course was scheduled for January 24, 2020.
Defendant failed to appear on the January 24 return date. He later claimed
he was not noticed of the hearing. Because no order issued on that date, defense
counsel wrote to the court seeking permission to file a cross-motion and carry
the matter to March 27. The judge instead adjourned the return date to March
13 and allowed defendant to file responding papers by March 5. Defendant's
timely submission was limited to a certification with exhibits; it did not,
however, include a current case information statement (CIS). See R. 5:5-4(a)(4).
According to defendant, plaintiff "barely ever ha[d] parenting time with
[their] children." Defendant annexed to his certification copies of calendars,
memorializing plaintiff's missed overnight parenting time. Defendant claimed
plaintiff failed to provide advance notice of her schedule and neglected to
request swap time. As one notable example, defendant stated "in November,
[p]laintiff exercised only [two] of the [fourteen] overnights that she would have
had under the [MSA]." Defendant also asserted the children complained
plaintiff had no food in her home, "provide[d] nothing for their after[-]school
A-1999-20 5 activities," and failed to afford the children "basic things like haircuts."
However, defendant acknowledged plaintiff "ha[d] more parenting time than
usual" in December, albeit "while her motion was pending." He requested an
accounting as to the alleged alimony arrears and an ability-to-pay hearing.
According to defendant's merits brief on appeal, defense counsel
requested an adjournment the day before the March 13 return date "due to the
rising Covid-19 pandemic." The judge denied the request and indicated the
cross-motions would be heard "on the papers."
By mid-August 2020, with the parties' applications still undecided – and
without leave of court – defendant filed a CIS and certification with exhibits,
including a list of plaintiff's missed parenting time during the month of June
2020. Defendant again argued plaintiff failed to uphold her parental
responsibilities under the MSA.
On February 9, 2021, the motion judge issued an order granting, in part,
plaintiff's motion for alimony arrears and directing defendant pay $4,000 in
arrears in a lump sum within thirty days. The judge denied defendant's cross-
motion in its entirety and issued a short statement of reasons within the ordered
paragraphs.
A-1999-20 6 Regarding defendant's application to terminate or modify alimony, the
judge concluded defendant "fail[ed] to demonstrate a significant change of
circumstances," finding "the very terms the parties agreed to not more than two
years ago ha[d] not materialized." According to the judge: "[p]laintiff ha[d] not
been deported, incarcerated, or permanently absent from the United States.
While the charges against [p]laintiff [we]re noted, none of the aforementioned
circumstances ha[d] yet occurred. Defendant remain[ed] bound to the obligation
he volitionally accepted." The judge also denied defendant's request to modify
the parties' parenting schedule stating, without elaborating, defendant "failed to
demonstrate a significant change in circumstances."
On March 8, 2021, defense counsel wrote to the motion judge, confirming
defendant remitted the $4,000 alimony arrears payment in full, but sought to
stay the February 9, 2021 order pending appeal. On March 11, 2021, the judge
denied defendant's application. This appeal followed.
II.
"Appellate courts accord particular deference to the Family Part because
of its 'special jurisdiction and expertise' in family matters." Harte v. Hand, 433
N.J. Super. 457, 461 (App. Div. 2013) (quoting Cesare v. Cesare, 154 N.J. 394,
412 (1998)). "Only when the trial court's conclusions are so 'clearly mistaken '
A-1999-20 7 or 'wide of the mark' should we interfere." N.J. Div. of Youth & Fam. Servs. v.
E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Fam. Servs. v. G.L.,
191 N.J. 596, 605 (2007)). "We will reverse only if we find the trial judge
clearly abused his or her discretion." Clark v. Clark, 429 N.J. Super. 61, 72
(App. Div. 2012). However, "all legal issues are reviewed de novo." Ricci v.
Ricci, 448 N.J. Super. 546, 565 (App. Div. 2017).
The child support and alimony provisions of a matrimonial settlement
agreement are subject to review and modification on a showing of changed
circumstances. Lepis, 83 N.J. at 146; N.J.S.A. 2A:34-23. Under that standard,
the judge determines whether the agreement is fair, equitable, and if it "should
receive continued enforcement without modification." Lepis, 83 N.J. at 148-49.
"When the movant is seeking modification of an alimony award, that party must
demonstrate that changed circumstances have substantially impaired the ability
to support himself or herself." Id. at 157. "When the movant is seeking
modification of child support, the guiding principle is the 'best interests of the
children.'" Ibid.
"The moving party has the burden of establishing a prima facie case of
changed circumstances before discovery of the opposing spouse's finances will
be ordered." Stamberg v. Stamberg, 302 N.J. Super. 35, 42 (App. Div. 1997);
A-1999-20 8 see also Lepis, 83 N.J. at 157. "By prima facie is meant evidence that, if
unrebutted, would sustain a judgment in the proponent's favor." Baures v.
Lewis, 167 N.J. 91, 118 (2001), rev'd on other grounds, Bisbing v. Bisbing, 230
N.J. 309, 334-35 (2017).
"Courts have consistently rejected requests for modification based on
circumstances which are only temporary or which are expected but have not yet
occurred." Lepis, 83 N.J. at 151. Premature filing of a Lepis motion will justify
its denial on the ground that the change has not been shown to be a permanent
condition or of lasting duration. Larbig v. Larbig, 384 N.J. Super. 17, 22-23
(App. Div. 2006) (deeming twenty months insufficient time to conclude
reduction in husband's income was permanent); see also Donnelly v. Donnelly,
405 N.J. Super. 117, 127-29 (App. Div. 2009) (explaining the defendant's Lepis
motion was properly denied following a similar motion filed nine months
earlier).
As a preliminary matter, we note defendant's cross-motion was deficient
for failure to file a current CIS pursuant to Rule 5:5-4(a)(4). Although the
judge's order did not expressly reflect that deficiency, the omission of a current
CIS foiled defendant's ability to make a prima facie showing of a substantial
change in his financial circumstances. Further, we are not persuaded the
A-1999-20 9 deficiency was cured by defendant's subsequent filing of an August 19, 2020
CIS. Defendant failed to seek leave to file the updated CIS and certification,
which asserted additional bases for relief, including allegations of missed visits
during the five-month period following the filing of defendant's cross-motion.
Nor does the record reflect plaintiff consented to the late filing or the motion
judge agreed to consider it.
Under these circumstances, we conclude the motion judge properly found
defendant failed to establish any legitimate reason to review his alimony and
support obligations, which were established under the MSA only eight months
before defendant filed his cross-motion seeking modification. Even if the judge
had considered defendant's August 2020 filing, the application was premature,
having been submitted to the court sixteen months after the MSA was
established. See, e.g., Larbig, 384 N.J. Super. at 22-23. Indeed, although
defendant initially certified plaintiff missed a great deal of parenting time in the
months leading up to the filing of motions, he nonetheless acknowledged
plaintiff saw the children more often while the parties' cross-applications were
pending in court. 2
2 Had defendant established an ongoing change in circumstances, relief would have been afforded by way of an adjustment in the child support award, not
A-1999-20 10 Moreover, it was not reversible error to fix defendant's arrears or direct a
lump sum payment to satisfy them. Defendant acknowledged he was in arrears
but disputed the amount owed. In that regard, his cross-motion sought any
alimony owed be calculated by the Probation Division (PD), and paid over time
"to cure" his arrearage. According to the judge's order, "the system Probation
uses to monitor and enforce support payments notes that [d]efendant was $4,000
in arrears." That amount is reflected in the PD's end-of-year-statement provided
in defendant's appendix on appeal.
Further, according to defendant's April 17, 2019 CIS, his gross income
was $139,127 in 2018, and he earned $1,505.11 in "overtime" and $11,661 in
"outside overtime" from January 1 to June 19, 2020. Those overtime payments
were included in his bi-weekly paychecks. We therefore discern no error in the
judge's decision, requiring defendant to satisfy his $4,000 arrearage promptly in
one payment.
Finally, we address defendant's procedural challenges to the order under
review. We recognize the better practice is to hear argument when requested.
See R. 5:5-4(a)(1) (providing family judges "ordinarily grant requests for oral
defendant's alimony obligation. See Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A ¶14(j), www.gannlaw.com (2022). A-1999-20 11 argument on substantive and non-routine discovery motions and ordinarily deny
requests for oral argument on calendar and routine discovery motions"); see also
R. 1:6-2(d); Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997).
In view of the length of time the motions remained undecided in this case
– notwithstanding defendant's deficient cross-motion – the more prudent course
would have been to schedule oral argument virtually. Nevertheless, even if a
motion involves a substantive issue, it is within the court's discretion to dispense
with argument if it would be unnecessary or unproductive, such as when no
additional information beyond the papers is necessary. See Palombi v. Palombi,
414 N.J. Super. 274, 286-88 (App. Div. 2010). Here, defendant had a full and
fair opportunity to present his arguments in support of his application to reduce
his alimony and child support payments. Because his proofs fell short, we
therefore discern no reason to remand this matter for oral argument.
To the extent not specifically addressed, defendant's remaining
contentions lack sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
A-1999-20 12