THERESA S. DUMONT-SKWARA v. JOSEPH J. SKWARA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3527-05T33527-05T3

THERESA S. DUMONT-SKWARA,

Plaintiff-Respondent,

v.

JOSEPH J. SKWARA,

Defendant-Appellant.

 

Submitted September 13, 2006 - Decided October 13, 2006

Before Judges Lefelt and Hoens.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-48-00.

Richard A. Russell, attorney for appellant.

Respondent did not file a brief.

PER CURIAM

Defendant Joseph J. Skwara appeals from the January 24, 2006 Order of the Chancery Division, Family Part, to the extent that it granted the motion of plaintiff Theresa Dumont-Skwara for reconsideration of the court's earlier order fixing child support. We affirm.

Although the history of the matrimonial litigation between these parties is rather complex, only the following facts are relevant to the issues advanced on appeal. The parties were married in November 1990 and divorced in October 2000. The Final Judgment of Divorce (JOD) required defendant to pay alimony to plaintiff for one year and fixed child support to be paid by defendant for the two children born of the marriage. The child support obligation in the JOD initially extended the child support amount that had been fixed in a pendente lite order. The JOD also provided that child support would be recalculated six months later. The JOD directed that the recalculation would utilize gross income of $33,000 for each of the parties and that it would also take into account health insurance and child care costs.

In October 2004, plaintiff moved for a modification of child support based on changed circumstances and for related relief. By Order dated November 19, 2004, the motion judge directed the parties to complete and exchange Case Information Statements (CIS) and to submit proposed worksheets in support of their contentions respecting child support. Following receipt and consideration of those submissions, the judge granted plaintiff's motion for a modification of child support. In his accompanying letter opinion dated January 19, 2005, the judge concluded that each of the parties was earning $500 per week and used that figure for his calculations. He noted, in part, that as to defendant this figure was based on his admitted income as set forth in his certification, although it was not entirely consistent with the information included in defendant's CIS or his tax return. The judge also noted that, as to plaintiff, the weekly income figure was one that he imputed. He described this sum as "fairly arbitrary, [but] consistent with her earning history both historically and recently."

Shortly thereafter, defendant sought an adjustment in the child support order. He did not challenge, at that time, the figure that the judge had used for his income. Rather, he argued that the judge had failed to credit him for the costs of providing health insurance for the children in accordance with the Child Support Guidelines. See Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix 1XA to R. 5:6A (2006). Defendant's formal motion for that and other relief was filed in March 2005. Plaintiff's cross-motion sought, among other things, discovery relating to defendant's income that had not been produced earlier and a further modification of the child support order. By Order dated April 19, 2005, the judge denied both the motion and the cross-motion.

In May 2005, plaintiff moved for reconsideration of the April 19, 2005 order to the extent that it denied discovery of defendant's income and child support modification. Defendant cross-moved for reconsideration, seeking similar relief by way of discovery about plaintiff's income and her efforts to secure employment. By Order dated July 7, 2005, the judge directed that the parties conduct discovery relating to the financial issues as they related to child support, to be completed within sixty days thereafter. At the same time, the judge appointed Lois Fried, CPA, who had been previously retained by plaintiff, to serve as the court-appointed expert for the purpose of determining defendant's income. The order also provided that the court would convene a plenary hearing to determine child support following the time set for the completion of discovery.

The parties filed motions and cross-motions thereafter relating to parenting time which are not directly relevant to the issues on appeal. When the parties appeared for the plenary hearing on January 6, 2006, defendant asserted that plaintiff had failed to appear for her deposition and that her motion for a modification of child support should be denied as a result. Defendant asserted further that the only issue that the court should address was his right to a modification of child support based on his payment of premiums for the children's health insurance. Following colloquy with counsel, the judge concluded that the hearing should not proceed in the absence of complete discovery and that the failure of both parties to cooperate in discovery required him to deny both motions for modification of child support. Before the judge had concluded the proceeding, however, defendant requested that the hearing proceed, pointing out that the judge could decide the child support issues based on Fried's expert report. The plenary hearing, during which both parties testified at length, continued thereafter for approximately a day and a half.

By Order dated January 24, 2006, the judge granted plaintiff's motion for reconsideration of the child support order, for reasons expressed in his written memorandum of decision issued the same date. Two aspects of that decision are relevant to the issues advanced on appeal. First, the judge imputed income of $57,000 to defendant in place of the evidence he had produced that suggested that his income was only $16,893 on average. Second, the judge noted that he was giving defendant credit for the costs he had incurred in payment for the children's health insurance costs.

Defendant raises the following points for our consideration on appeal.

POINT I

THE TRIAL COURT'S IMPUTATION OF INCOME TO THE DEFENDANT WAS ARBITRARY AND COMPLETELY UNSUPPORTED BY THE RECORD.

POINT II

DEFENDANT WAS DENIED DUE PROCESS BY THE TRIAL COURT.

We have considered these arguments in light of the record and the applicable legal principles and find them to be unpersuasive. We therefore affirm and we add the following observations.

We first note that the scope of our review of the trial court's factual findings is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact-finding." Ibid.

Applying this standard of review to the record, we find no basis on which to afford defendant relief on appeal. The essence of his attack on the judge's findings concerning imputation of income to him is that the tax return he supplied demonstrated that his disposable income was approximately $16,000 and the expert's report confirmed that claim. As the judge found, however, there are significant flaws in this analysis. The tax returns that defendant produced included both his personal and his business returns which revealed that he had gross income from his work as a financial advisor of approximately $128,000 in 2004. The expert's report found that defendant's reported net disposable income was based on business expenses that she could not verify. The judge, moreover, in analyzing the record, noted that a significant portion of the expenses attributed to defendant's business should not have been excluded for purposes of determining his income in accordance with the Child Support Guidelines. Reasoning in the alternative, the judge noted that defendant was voluntarily underemployed when compared to others in his field of endeavor with his years of experience.

The Guidelines permit imputation of income if the court is unable to determine income precisely or if a party is found to be underemployed. See Caplan v. Caplan, 182 N.J. 250, 265 (2005); Tash v. Tash, 353 N.J. Super. 94, 99 (App. Div. 2002); Bencivenga v. Bencivenga, 254 N.J. Super. 328, 331-32 (App. Div. 1992). Our review of this record demonstrates that there is ample support for the judge's findings and conclusions. In particular, we defer to the judge's finding that defendant's assertions about his inability to earn more than an extremely modest income were not credible. We concur with the judge's conclusion that, if defendant's assertions about the relationship between his apparent gross income and his business-related expenses were accurate, he was indeed underemployed. The judge's imputation to defendant of $57,000 in income, under the circumstances, was based on substantial credible evidence in the record.

We reject as well defendant's argument that the judge erred by failing to apply a credit in his favor based on evidence that showed that he had paid health insurance premiums to provide coverage for the couple's children. The child support worksheet appended to the judge's order explicitly gave defendant the credit for the premium payment to which he was entitled.

Nor do we perceive of any denial of due process in the conduct and scope of the proceedings. Defendant's arguments that he was deprived of an opportunity to conduct the discovery that he needed and that he was mistakenly led to believe that the only issue to be decided during the hearing was the health insurance credit are unpersuasive. Plaintiff's failure to appear for her deposition did not disadvantage defendant. The judge imputed income to plaintiff based on her salary at her new place of employment and neither she nor defendant challenges that finding on appeal. Therefore, her failure to appear for her deposition can only have been to her disadvantage rather than to defendant's. Moreover, when plaintiff failed to appear, defendant declined to be deposed, leaving plaintiff without the opportunity to learn information that might have assisted her in evaluating the true extent of defendant's income.

Regardless of which party might be responsible for the failure to complete discovery, when the judge proposed to simply deny all relief and invite the parties to file new motions for modification once they had completed discovery, it was defendant who insisted that the plenary hearing proceed. Nor did he object to the extended inquiry on plaintiff's behalf about the nature of his employment or the extent of his income and expenses. Defendant's assertion on appeal that he was deprived of due process is meritless in light of the record.

Affirmed.

 

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A-3527-05T3

October 13, 2006