NANCY URIBE VS. JOSE URIBE (FM-02-0642-15, BERGEN COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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
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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
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[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
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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
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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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