TINA BRUSH v. RICHARD BRUSH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5022-04T55022-04T5

TINA BRUSH,

Plaintiff-Respondent,

v.

RICHARD BRUSH,

Defendant-Appellant.

_____________________________________________________________

 

Submitted June 14, 2006 - Decided June 30, 2006

Before Judges Wefing and Coburn.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Middlesex

County, Docket No. FM-12-11-04.

Kraft & Kraft, attorneys for appellant (Daniel R.

Kraft and Johanna D. Roccanova, on the brief).

Joan M.Donnelly, attorney for respondent.

PER CURIAM

Defendant Richard Brush appeals orders denying his motions for reduction of child support. We reverse and remand.

The parties were married in 1988, had three children together, and were divorced on January 29, 2002. Richard was then earning $115,000 per year at Ralph Lauren, and Tina was earning $42,000 per year at her job. Richard's child support obligation was set at $493 per week, which took into account the parties' respective salaries and the overnights when the children would be with him.

In February 2003, Richard lost his job at Ralph Lauren due to downsizing, which he certified was occurring throughout the garment industry in the United States. After ten months of unemployment, he found another job in the garment industry, this time with Michael Kors. Since he has not certified what his salary was there, the judge properly assumed, without expressly so stating, that it was at least the same as his income at Ralph Lauren. While working at Kors, Richard filed a motion to increase his parenting time. After a court-ordered mediation, the parties entered into a consent order that increased Richard's parenting time but kept intact all other aspects of the prior support order. Richard then moved to reduce his child support because of the children's increased overnights with him. The judge denied that motion and a second motion to the same effect, because of the parties' agreement to continue child support as before.

In November 2004, after nine months at Kors, Richard lost his job, again due to corporate downsizing. He certified that he searched extensively for jobs in the garment industry, which appears to be the only industry in which he has developed employable skills, and finally found one at Hanover Direct in December 2004, but at a salary of only $80,000 per year. A month later he filed a motion to reduce his child support obligation based on the changed circumstance of his decreased income.

The judge found that the increased overnights were not a changed circumstance because the parties had agreed that this change would not affect Richard's child support obligation. Although that ruling appears fair in the context of this case, we cannot agree with the judge's finding that Richard's loss of his job at Kors, and his acquisition of a job at Hanover Direct for $35,000 less per year than he was earning when the judgment of divorce was entered, were not changed circumstances.

Although the judge expressed the belief that Richard could earn more than $80,000 per year, there was no factual support for that belief. As we held in Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998), income may not be imputed unless the judge finds that a defendant "was, without just cause, voluntarily underemployed." The judge's other reason for denying relief was that the decrease in income, which he acknowledged was by itself substantial enough to be considered a changed circumstance, was only temporary. But that finding was based solely on the fact that Richard filed his motion only a month after getting the Hanover Direct job. Given the well-established problems in the garment industry, Richard's inability to find employment for almost a year after his discharge from Ralph Lauren, and the extensive job search he performed before accepting his present position, we see no basis for saying that his new, reduced salary is only temporary. Therefore, we remand for a further hearing, at which both sides should present updated financial information. See Lepis v. Lepis, 83 N.J. 139, 151-52 (1980).

 
Reversed and remanded.

(continued)

(continued)

4

A-5022-04T5

June 30, 2006