RONDA OSWORTH v. MARK EHLERS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0060-05T50060-05T5

RONDA OSWORTH,

Plaintiff-Respondent,

v.

MARK EHLERS,

Defendant-Appellant.

____________________________________________________________

 

Submitted May 30, 2006 - Decided July 14, 2006

Before Judges Holston, Jr. and Gilroy.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FD-12-1343-04.

Keith, Winters & Wenning, attorneys for appellant (Brian D. Winters, on the brief).

Willard Geller, attorney for respondent.

PER CURIAM

Defendant, Mark Ehlers, appeals the Family Part's May 11, 2005 order for child support for Shelby Ehlers, age eleven, and Dakota Ehlers, age seven, the two minor children born of a twelve-year relationship, but without marriage, with plaintiff, Ronda Onward. Defendant also appeals the August 31, 2005 order denying defendant's motion for reconsideration. We affirm.

The parties, during their relationship, lived in a house owned by defendant at 26 Stockton Road, Kendall Park, South Brunswick. When the parties separated, plaintiff and the two children moved from the South Brunswick residence to a rental property at 414 Northumberland Way, Monmouth Junction. On February 18, 2004, a child support order was entered requiring defendant to pay $114 per week in child support for the two children. The order was entered based on defendant's contention that he was earning $22,564 annually based on an hourly rate of $12.00 per hour or $480 per week as a mechanic for Jamesburg Auto - Electrical Repair in Monroe. Defendant's 2004 W-2 and Form 1040 US Individual Tax Return corroborated defendant's income claim. Plaintiff asserted at the February 18, 2004 hearing that defendant's tax documents did not accurately reflect defendant's true income. As a result, the February 18, 2004 support order provided, "[Plaintiff] to prove any additional income, which would relate back to 1/31/04."

On or about April 11, 2005, plaintiff filed a motion seeking (1) increased child support for Shelby and Dakota, (2) an order requiring defendant to pay his share of unreimbursed medical expenses for the children, and (3) an order requiring defendant to bring his child support payments current.

In her certification in support of the motion, plaintiff certified, in applicable part:

3. I am employed as a school custodian and my entire income is reflected on my W-2. The defendant on the other hand, is an extremely skilled mechanic who can and does command an excellent hourly wage. Throughout our relationship, the Defendant has always made it a practice to be paid half "on the books" and half off. When the issue of the children's support was initially heard on February 18, 2004, the defendant alleged that he was making $480.00 a week which was based on a reported income of $12.50 an hour. In fact I would strenuously argue that his salary from his employer alone was twice that amount with the additional $12.50 an hour being paid to Mr. Ehlers in cash. . . .

A. In addition to his regular income from his employer, Monroe Quick Lube, (which I allege is understated by half), two to three times a month, Mr. Ehlers works for his employer on a Saturday. Whenever he works on a Saturday, he gets paid $100.00 in cash.

B. As indicated on the attached copy of his business card, Mark Ehlers has a towing and snow plowing business. I know that he has significant towing business. I also know that for every tow he performs he gets a $50.00 hookup fee and $1.50 per mile. He totally ignored this lucrative source of income when he misrepresented his income to the court.

C. In addition to the towing, the Defendant also does snow plowing work. He has done this work for years (including while we were together) and I know that anytime there was a significant snow fall, he would make at least $2,000.00 from his plowing.

D. Mr. Ehlers' lifestyle is inconsistent with his previously asserted earnings of $480.00 per [week] or $24,960.00 per year. I am uncertain as to what his rent/mortgage may be at the present time but when we all lived together at 26 Stockton Road, Kendall Park, New Jersey, he had no difficulty making the $1,500.00 monthly mortgage ($18,000.00 per year).

During the past few years he has made the following purchases:

1. An F 250 Truck for 30,000-35,000 CASH. He subsequently traded this vehicle in for a Grand AM GT and between $8,000 and $9,000 in cash back.

2. A Mustang Convertible for which he paid CASH.

3. A Harley Davidson Motorcycle for which he paid $4,000.00 CASH.

4. A Flat Bed Truck for which he paid $4,000 CASH.

He presently owns and insures at least two cars, two trucks and two motorcycles. Until approximately September 2004, he owned a cabin cruiser, which he had also purchased for cash. My daughters advise me that he plans to buy a forty-eight-foot boat. Additionally, he himself told me he was in the market for a new home.

Defendant did not file a certification in opposition but appeared pro se in opposition to the motion on its return date of May 11, 2005.

Following limited testimony and argument, the court entered an order dated May 11, 2005, requiring defendant to pay $225 per week in child support and $25.00 per week toward arrearages. The increased child support award was as a result of the court imputing income to defendant in the amount of $1,000 per week. The judge imputed income based upon the lifestyle of the parties during their twelve-year relationship and after making adverse determinations as to defendant's credibility. The judge found that defendant could not have maintained a $1,500 per month or $18,000 per year mortgage, for which defendant admitted he was not in arrears, made utility payments, and enjoyed a lifestyle in which he owned several vehicles and a boat on a $22,500 annual income. The judge, therefore, concluded that defendant had substantial additional income as an auto mechanic and in his operation of a towing and snow plowing business, over and above that reflected in his 2004 W-2 and Form 1040.

Defendant contended that his ability to purchase the vehicles, which he bought and sold, came from financing, using the equity from the house he had previously owned but had to sell because he could no longer afford it. As a result, the court informed defendant that he had the right to come back to court and "trace" exactly how the proceeds from the sale of his house were spent and how his vehicles were acquired.

On or about June 16, 2005, defendant filed a motion for reconsideration of the May 11, 2005 order and filed a certification in support thereof. In his certification, defendant stated, in applicable part:

Plaintiff argued at that time that I earned additional money off the books, but the Court did not find that she presented any proofs. Instead, the Court allowed her to prove any additional income of mine. I strongly suggest to the Court that her April 11, 2005 Certification also failed to show any additional income as required by the February 8, 2004 Order. Rather, Plaintiff's Certification is unsupported by any documentary proof as to my wages. Plaintiff's allegations were based on nothing more than her bald assertion that I earn more money than claimed. Her allegation that I easily covered the mortgage payment when we lived together is not true, as is her allegation that I earn cash for working on a Saturday. I do not earn $100 just for working on a Saturday. . . .

Currently, I am unemployed as I was laid off on May 22, 2005 from my work with Jamesburg Auto Electric Repair. I receive $552.00 gross bi-weekly from Unemployment Insurance. . . . I do not earn and have not earned any money off the books as Plaintiff alleges. . . .

[W]ith respect to Plaintiff's allegations that I earn extra money performing tow operations, I wish the Court to know that this is no longer true. Originally, I purchased the tow truck on the basis of Plaintiff's brother-in-law's promise to provide me with tow clients from his auto body shop. I invested in the tow truck, with the hope and intent that I would earn extra money. However, as soon as my personal relationship with the Plaintiff ended, I no longer received any tow leads from Plaintiff's brother-in-law. Moreover, I only towed for him a few times . . . .

With respect to Plaintiff's allegations that I also earn additional cash plowing, I wish the Court to know that this is also untrue. . . . [I]t was my intent to earn extra cash providing plow services. However, some of those leads became non existent because I was terminated from Al's Sunoco in West Windsor. Moreover, the truck I had used was a 1985 Chevy Blazer which ran into significant mechanical problems. As a result, I was forced to sell the Chevy Blazer. . . .

[T]he reason I was able to purchase those vehicles is because I received $65,560.71 from the sale of my home at 26 Stockton Road in Kendall Park. . . . Because I did not immediately purchase another home, I had the cash from the sale of my house available to purchase those vehicles. Thus it appeared to Plaintiff that I had a substantial income with which to support these purchases, but in fact that was not the case. I intend to keep the remaining funds from the sale of my house (approximately $55,000.00) as a down payment on another home. Thus, this amount should not be considered income for the purposes of calculating support.

. . . .

[T]he only reason I have those assets is because of the sale of my house and not because I earn money off the books, as alleged by Plaintiff. Plaintiff offers no proof that I earn cash off the books[.]

The court, however, deemed defendant's certification and the exhibits attached thereto insufficient to demonstrate how, on $22,500 of annual income, defendant could amortize, without falling into arrears, his $180,000 mortgage plus pay taxes. The court, in denying defendant's motion for reconsideration, essentially found defendant not credible based upon the limited income defendant asserted he earned versus defendant's ownership of several motor vehicles and a boat and an ability before the parties separated to support his residence.

On appeal defendant argues the motion judge (1) erred in granting an increase in child support because plaintiff failed to establish a change of circumstances; (2) erred in imputing income to defendant; (3) failed to support his decision by adequate findings of fact; and (4) erred in denying his motion for reconsideration.

Defendant's case information statement (CIS) submitted in support of his motion for reconsideration, dated June 10, 2005, lists four motor vehicles (a 2001 Grand AM valued at $7,000, a 1996 Mustang valued at $1,700, a 1989 Harley Davidson motorcycle valued at $8,000, and a 1989 Nissan UD Tow Truck valued at $4,000). Defendant's list of liabilities reflects no outstanding encumbrances on these motor vehicles. His CIS lists his total gross assets and net worth at $76,561. His certification in support of reconsideration acknowledges receipt of $65,560.71 from the sale of his Kendall Park home. He lists a savings account balance from the sale of his home in the amount of $55,861. However, a subpoenaed statement of account from N.J. Gateway Federal Credit Union in the name of Mark T. Ehlers t/a Marks Towing, for the period June 1 - June 30, 2005, shows a savings account balance of $73,096.78 and an additional $913 in a second account. Thus, the CIS filed by defendant understated defendant's assets by almost twenty-five percent.

The scope of our review is limited. Our Supreme Court has explained that "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact finding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Additionally, credibility determinations are always for the factfinder to determine. See Ferdinand v. Agric. Ins. Co. of Watertown, N.Y., 22 N.J. 482, 492 (1956).

Based on our review of the record, we are satisfied that there was sufficient, credible evidence for the trial judge to conclude that defendant's income was substantially in excess of that reported in the W-2 and Form 1040 that he submitted to the court. See Pascale v. Pascale, 113 N.J. 20, 33 (1988); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974); see also Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989). We are convinced, therefore, that the determinations made by the motion judge were reasonably reached on the evidence presented and were not "'clearly unfair or unjustly distorted by a misconception of law or findings of fact that are contrary to the evidence.'" Wadlow v. Wadlow, 200 N.J. Super. 372, 382 (App. Div. 1985) (quoting Perkins v. Perkins, 159 N.J. Super. 243, 247 (App. Div. 1978)).

Affirmed.

 

The court also ordered defendant to pay $451.60 in unreimbursed medical expenses within forty-five days.

Defendant's appendix exhibit DA83 shows a redacted settlement statement for the sale of 26 Stockton Road, Kendall Park, South Brunswick Township. The redacted settlement statement records a contract sales price of $273,000. However, neither a mortgage payoff figure nor net proceeds from the sale are shown.

(continued)

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A-0060-05T5

July 14, 2006