BERNADINE SMITH v. DANIEL MORALES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6070-04T56070-04T5

BERNADINE SMITH (f/k/a

BERNADINE DAVENPORT),

Plaintiff-Appellant,

v.

DANIEL MORALES,

Defendant-Respondent.

_______________________________________________________________

 

Submitted May 16, 2006 - Decided June 1, 2006

Before Judges Lefelt and R. B.

Coleman.

On appeal from the Superior Court of

New Jersey, Chancery Division, Family

Part, Morris County, Docket No.

FD-19-466-92.

Patricia L. Veres, attorney for

appellant.

Respondent, Daniel Morales, submitted

no brief.

PER CURIAM

Defendant, Daniel Morales, and plaintiff, Bernadine Smith, never married, but have had two children together. Defendant filed a motion seeking to decrease his $229 weekly child support obligation after a change of employment reduced his earnings. Plaintiff cross-moved for a child support increase, claiming defendant was voluntarily underemployed. Plaintiff, in the cross-motion, also sought reimbursement for out-of-pocket medical and camp expenses and enforcement of defendant's life insurance obligation. A hearing officer reduced defendant's child support to $140 per week, and a Family Part judge affirmed. Plaintiff appealed, and we reverse and remand.

Defendant's original support obligation was based upon his gross weekly income of $860 and plaintiff's imputed weekly income of $400. After taking a job closer to home but paying only $560 weekly, defendant, who is a boat mechanic, moved to reduce his support obligation. In plaintiff's cross-motion to increase child support, she supported her contention that defendant was underemployed with documentation demonstrating that defendant had annual income, around 1995 or 1996, of approximately $150,000. Plaintiff also supplied documentation indicating that after a child support lien had been satisfied, defendant transferred the deed of his home to his wife for the sum of $1.00, purportedly to avoid further liens for support.

"Current earnings are not the sole criterion to establish a party's obligation for support." Halliwell v. Halliwell, 326 N.J. Super. 442, 448 (App. Div. 1999) (citing Lynn v. Lynn, 165 N.J. Super. 328, 341 (App. Div.), certif. denied, 81 N.J. 52 (1979)). "The potential earning capacity of an individual, not his or her actual income, should be considered when determining the amount a supporting party must pay." Ibid. (citing Mowery v. Mowery, 38 N.J. Super. 92, 105 (App. Div. 1955, certif. denied, 20 N.J. 307 (1956)); see also Arribi v. Arribi, 186 N.J. Super. 116, 118 (Ch. Div. 1982) (citing Bonanno v. Bonanno, 4 N.J. 268, 275 (1950)).

"Our courts do not permit parents to evade their duty to support their children by quitting their jobs or by taking lower paying jobs, regardless of any good or bad faith in doing so." Id. at 458. A court may impute income to payors who voluntarily reduce their earnings. See Aronson v. Aronson, 245 N.J. Super. 354, 360-61 (App. Div. 1991).

Plaintiff argues that the judge should have, at least, determined whether the "advantage [of defendant having a job closer to home] substantially outweighs the disadvantage" to plaintiff. See Deegan v. Deegan, 254 N.J. Super. 350, 358 (App. Div. 1992) (dealing with voluntary retirement by payor spouse). Only if the court finds that the advantage outweighs the disadvantage, according to plaintiff, should the payor's conduct be viewed as having produced a legitimate change of circumstance entitling him to modification of the support obligation. Ibid.

In this case, the Family Part judge found simply that "the hearing officer did properly use the information that the parties have. I'm going to affirm the hearing officer's findings." No other findings were made by the judge. The judge also restricted his decision to a review of the hearing officer's action and did not fully decide plaintiff's cross-motion.

"A party not accepting a recommendation entered by the Child Support Hearing Officer shall be entitled to an immediate appeal of the recommendation[.]" R. 5:25-3(d)(2). The Family Part judge who hears the immediate appeal shall conduct a "de novo" [review] not on the record below." Ibid.

After concluding the de novo review, the court must "find the facts and state its conclusions of law." R. 1:7-4(a). As has often been said, the failure to comply with this obligation "'constitutes a disservice to the litigants, the attorneys and the appellate court.'" Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (quoting Kenwood Assocs. V. Bd. Of Adj., 141 N.J. Super. 1, 4 (App. Div. (1976)). "Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion. In the absence of reasons, we are left to conjecture as to what the judge may have had in mind." Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990). A trial court's obligation to make such findings and conclusions is therefore of critical importance.

In this case, for example, the trial court not only failed to explain the reasons why it was affirming the hearing officer, but also failed to set forth any findings pertaining to the main contention between the parties regarding whether voluntary underemployment had occurred. We also note that the original child support order imputed $400 of income to plaintiff and the hearing officer's recommended order did not. The court failed to address the propriety of this action also, merely noting that the child support modification would be further reduced if the court imputed income to plaintiff. Furthermore, the judge failed to decide all of the pending issues that had been part of the cross-motion but outside the jurisdiction of the hearing officer.

Because the absence of findings precludes us from determining whether the court afforded plaintiff the de novo review to which she was entitled, we are constrained to reverse the court's affirmance of the hearing officer's recommended decision and remand for de novo review. In addition, upon remand, the court shall decide whatever issues contained in plaintiff's cross-motion remain disputed between the parties.

Reversed and remanded. We do not retain jurisdiction.

 

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A-6070-04T5

June 1, 2006