NANCY URIBE VS. JOSE URIBE (FM-02-0642-15, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: November 21, 2018
• Docket: A-5672-16T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5672-16T1

NANCY URIBE,

Plaintiff-Respondent,

v.

JOSE URIBE,

Defendant-Appellant. _______________________________

Argued October 31, 2018 - Decided November 21, 2018

Before Judges Fuentes, Accurso and Moynihan.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-0642-15.

Toni Ann Russo argued the cause for appellant.

Armando R. Horta argued the cause for respondent (The Horta Law Group, LLC, attorneys; Armando R. Horta, of counsel and on the brief).

PER CURIAM Defendant Jose Uribe appeals from an April 21, 2017 post-judgment order

denying his motion to reduce his child support payments and an August 4, 2017

order denying his request for reconsideration. Because we find no error in the

trial court's rulings, we affirm.

Defendant was divorced from plaintiff Nancy Uribe in March 2016 after

an eleven-year marriage. The parties entered into a marital settlement

agreement, incorporated into their judgment of divorce, in which they agreed

defendant would pay non-guidelines support of $441 weekly for the only child

of the marriage, their ten-year-old daughter.

Three months after entry of the judgment, defendant, representing himself,

sought a downward modification in his child support. Noting "the ink is not

even dry yet" on the documents, the court denied the motion, finding defendant's

application procedurally deficient and substantively without merit because

defendant failed to demonstrate changed circumstances.

Six months later, defendant, now represented by counsel, moved again to

modify his child support. In a certification in support of the motion, he claimed

to have lost his job shortly after the divorce and moved back to his family's farm

in Peru, where there was no work for him. Defendant also claimed that since he

was last before the court, his support obligation for another child in Peru, who m

A-5672-16T1 2 he claimed was "neurologically and cognitively disabled," increased to $138 a

week. He accordingly requested that his support for the parties' child be

decreased to $136 per week.

Plaintiff opposed the motion, claiming it was again deficient for failing to

provide evidence documenting defendant's claims and did not demonstrate

changed circumstances. Specifically, plaintiff claimed defendant refused to

provide anywhere near complete financial information when they were litigating

their divorce and insisted he was unemployed at the time the judgment was

entered. She noted their marital settlement agreement specifically provided that

the amount of the child support was "based on the combination of [defendant's]

current income, including unemployment, and other monies and assets available

to him." Plaintiff maintained defendant could not show changed circumstances

based on losing his job when he claimed to be unemployed when they were

divorced.

Plaintiff further maintained defendant owned businesses in Peru,

including the family farm, and asserted his motion only continued his pattern of

making claims about his finances not supported by competent evidence.

Regarding defendant's claim of increased support for his son in Peru, born

during the parties' marriage, plaintiff contended defendant "was already in

A-5672-16T1 3 [c]ourt in Peru" on that issue during the parties' divorce and was thus well aware

of his obligations to his son when he entered into the marital settlement

agreement setting support for their daughter.

After hearing argument, the trial court denied defendant's motion to

modify his child support. The court initially noted that several documents

submitted in support of the motion had not been translated from the original

Spanish. Comparing the case information submitted on the motion to the last

one defendant filed prior to the entry of divorce, the court concluded defendant

could not establish changed circumstances, because in 2015 defendant "had

limited income and he continues to have limited income."

The court further found that defendant failed to explain the circumstances

surrounding his support order in Peru, but noted plaintiff appeared correct that

the child "existed at the time of the divorce" and thus could not constitute a

change in circumstances. The court took pains, however, to note it was denying

the motion without prejudice, making clear that should defendant "be able to

present his documents in a cogent manner with back up, then of course he's free

to re-file at any point in time as he sees fit." Finding plaintiff was caused to

incur attorney's fees for defending a motion based on "too much speculation and

A-5672-16T1 4 too few facts," the court, after applying the applicable factors in R. 5:3-5,

awarded plaintiff fees of $5030.49.

Defendant did not re-file the motion supported by competent evidence as

suggested by the court. Instead, he moved for reconsideration, presenting

translations of some of the documents previously submitted and arguing his

child support obligation for his son in Peru "was not considered in the present

calculation of support because [his] attorney failed to take it into consideration."

The court denied the motion without argument and awarded plaintiff an

additional $3500 in fees for having to defend it, explaining "[t]he information

now sought to be introduced was available at the time the original [m]otion was

argued . . . and [was] available to the defendant for submission at that time."

Defendant appeals, reprising the arguments he made on reconsideration,

namely that he demonstrated a change in circumstances that should have

warranted a downward modification of his support or a plenary hearing, and that

the court erred in awarding plaintiff her counsel fees. We disagree.

A review of the record makes plain defendant failed to submit competent

evidence on the motion, including but not limited to the court order from Peru,

to which no apostille or other proof of genuineness was affixed, see N.J.R.E.

902(c) (addressing authentication of foreign public documents), necessary to

A-5672-16T1 5 permit relief. Further, the law is clear that reconsideration is not designed to

permit a disappointed party to supply additional information available to the

party when the motion was originally heard. Town of Phillipsburg v. Block

1508, Lot 12, 380 N.J. Super. 159, 175-76 (App. Div. 2005). Accordingly, we

cannot find the trial court erred in denying defendant's motions or in awarding

plaintiff her fees, see Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011)

(noting an award of counsel fees is committed to the court's sound discretion,

which will not be reversed absent an abuse of discretion).

We affirm the orders under review, substantially for the reasons expressed

by Judge Bottinelli in the opinion he delivered from the bench on April 21, 2017

and the statement of reasons appended to the order of August 4, 2017, denying

reconsideration.

Affirmed.

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