DANIELLE E. MATHIAS v. TIMOTHY S. MATHIAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0184-08T30184-08T3

DANIELLE E. MATHIAS,

Plaintiff-Appellant,

v.

TIMOTHY S. MATHIAS,

Defendant-Respondent.

__________________________________

 

Submitted June 3, 2009 - Decided

Before Judges Rodr guez and Waugh.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Salem County, FM-17-238-07.

DeMichele and DeMichele, P.C., attorneys for appellant (Richard A. DeMichele, Jr., on the brief).

Holston, MacDonald, Uzdavinis, Eastlack, Ziegler and Lodge, attorneys for respondent (Teri S. Lodge, on the brief).

PER CURIAM

This appeal arises from the dissolution of a fifteen-year marriage between plaintiff Danielle Mathias and defendant Timothy Mathias. The trial court ordered Timothy to pay Danielle permanent and rehabilitative alimony. Danielle argues on appeal that the alimony awards are too low, and that the trial court erred by imputing too little income to Timothy and too much income to her. We affirm the trial court's findings with respect to Timothy's earning capacity, but vacate the present and future incomes imputed to Danielle and remand to the Family Part for further proceedings consistent with this opinion.

I.

We discern the following facts from the record. The parties were married on November 14, 1992. They have two children: a son, born May 1, 1993; and a daughter, born January 8, 1996. Danielle was twenty years old and working as a hair stylist at the time of their marriage. Timothy was thirty years old and employed as a state trooper.

Shortly after their son was born, the parties agreed that Danielle would quit her job as a hair stylist and focus on their son. Although Danielle worked intermittently throughout the marriage, Timonthy's earnings were the primary source of income for the family.

According to the parties' shared parenting plan, Danielle is the parent of primary residence and Timothy has 130 overnights with the children per year, consisting of each Wednesday and every other Friday, Saturday, and Sunday. They live less than a mile apart, which permits the children to ride their bicycles to each parent's home.

At the time Danielle left her position as a hair stylist in 1993, she was working on an hourly basis, approximately eighteen hours per week, earning $8 per hour plus tips.

Prior to having children, Danielle had aspirations to pursue a college education. Consequently, when their youngest child started preschool, the parties discussed Danielle's desire to return to school. In 1999, Danielle was briefly registered as a full-time community college student. However, she withdrew before classes commenced because Timothy made comments that made her feel guilty about the cost of the education and accompanying child care.

In 2004, Danielle began working as a teacher's aide at her son's elementary school, earning $1,353 that year. Danielle also returned temporarily to her prior position as a hair stylist, before eventually accepting a full-time position as a teacher's aide in 2005. She continued working full-time as an aide, grossing $13,151 in 2005 and $17,748 in 2006.

About six months prior to separating, the parties revisited Danielle's desire to return to school. At that time, Timothy had plans to retire within three years. The parties determined that Danielle should pursue a teaching career so that she could have her summers off, allowing the parties to spend their summers at a shore property they owned.

In January 2007, Danielle began taking a night class, but continued to work full-time at the elementary school as an aide. She wanted to attend school on a full-time basis, but Timothy was concerned that they would not be able to manage without her earnings. They discussed having Danielle earn supplemental income cleaning homes over the summer months if she quit her aide position and went to school full-time. They also considered going without her income in the summer of 2007 to see if they could forego her earnings permanently. The parties never implemented either plan. The parties separated in May 2007 and Danielle filed for divorce one month later.

In the fall of 2007, Danielle quit her position as a school aide and began attending community college full-time. She also began working part-time at a restaurant, alternating as a waitress, earning $2 per hour plus tips, and a food server, earning $7 per hour. There was considerable disagreement during the trial as to whether the parties had agreed to Danielle's quitting her school-aide position and attending school full-time. Danielle's gross income for 2007 was $16,519.

At the time of trial, Danielle was still enrolled as a full-time student, hoping to take an examination to become a registered nurse (RN) in 2010. Danielle submitted statewide and county-specific occupational wage data, which indicated that an RN in Salem County could potentially earn $52,790 annually. She emphasized that, because of the numerous licensing prerequisites, it was not possible to establish an exact date for her licensing as an RN. During cross-examination, however, Danielle confirmed that she planned to graduate in June 2010 and expected to take her state licensing examination as soon as it was offered.

As of the time of trial, Danielle was still working part-time at a restaurant. She stated that in early 2008 she had been working thirty to forty hours per week, but had reduced her hours to ten to fifteen hours per week because she was experiencing recurring headaches. Danielle supplemented the income she earned at the restaurant by working as a caretaker for a disabled elderly woman one night a week, at the rate of $12 per hour. She was uncertain whether she could continue the caretaking job because she anticipated conflicts with her school schedule.

Danielle testified at length about the time demands of her studies, and the challenges she experienced in managing work, school, and parenting obligations. As of the time of the trial, Danielle would finish school by 1:45 p.m. four days per week, and by 9:00 a.m. on Fridays. She agreed that her children, ages fifteen and twelve, did not require a babysitter. She asserted that, once the parenting plan went into effect in November 2007, Timothy had "limited" his help to the days that he was responsible for the children.

Danielle also testified that she still held a valid New Jersey cosmetology license, and conceded that she had earned more in 1993 as a hair stylist than she did now working at the restaurant. However, she testified that she did not intend to use her cosmetology license in the future. She stated that, although she had considered working somewhere other than at the restaurant, she had not actually applied anywhere else.

Timothy worked as a state trooper throughout the marriage. He was forty-five at the time of trial, and ten years away from mandatory retirement. His respective gross earnings in 2004, 2005, 2006, and 2007, were $132,318, $116,053, $125,207, and $104,083.

Beginning in 2006, overtime opportunities for state troopers were reduced. This led the parties to discuss their need to decrease spending. They also discussed the feasibility of Timothy seeking a transfer to improve his chances for a promotion. Timothy eventually obtained a transfer in 2008, and was working as a "road duty trooper" at the time of trial. However, he still did not earn as much in 2007 as he had in the three previous years.

Timothy testified that he had worked only six days of overtime in 2007, but conceded that he had not sought any overtime assignments since Danielle filed the complaint for divorce. He denied deliberately cutting his overtime earnings in 2007, and maintained that the budgetary curtailment of overtime opportunities had been compounded by his obligations to the children. Timothy further testified that he would not seek overtime even if the opportunities were available, because his primary objective was to be available for his children. At trial, Danielle pointed to statements made by Timothy in prior court filings that contradicted his explanation at trial, undermining his credibility on the issue.

Timothy emphatically denied Danielle's allegation that he did not help her with the children. He stated that he had in fact "begged" her to have more time with the children. The trial judge permitted that testimony, over objection, to rebut Danielle's own statements about the lack of assistance she received.

Lieutenant Kevin DiPatri, the commander of the station at which Timothy was assigned, testified for Timothy. His duties included the supervision of personnel and management of overtime hours. DiPatri provided testimony regarding overtime opportunities for state troopers, and stated that there was increased pressure to reduce overtime due to statewide budget concerns.

DiPatri explained that there are generally two types of overtime, staff overtime and supplemental patrols. The former could arise from being "held over" beyond the scheduled end of a shift due to circumstances arising from a particular assignment, attending a mandated training, or providing coverage when there was a shortage of troopers. However, he testified that troopers may be required to adjust their time prospectively or "give back" these types of overtime hours in exchange for compensation time. According to DiPatri, there were about 240 hours of staff overtime in May 2008, which amounted to an average of six hours per trooper. He attributed this unusual "spike" in staff overtime to mandated trainings and non-recurring drills, as well as a shortage of troopers.

DiPatri further explained that troopers could also apply for "supplemental patrols," which usually occurred on weekends in six- to twelve-hour shifts. In order to receive a supplemental overtime assignment, a trooper had to obtain approval from the supervisor and confirm that the overtime would not conflict with the staffing requirements in the station. DiPatri explained that a trooper would not be permitted to work a supplemental patrol unless there was a six-hour window of rest before and after the shift.

As to Timothy, DiPatri testified that his seniority would not necessarily entitle him to preference for supplemental overtime assignments. He also testified that a trooper would be "lucky" to accrue twelve hours of supplemental overtime in a given month, and that the chances of obtaining a supplemental assignment would be limited if the trooper could not work weekends, when the opportunities generally occurred. Based on the overtime statistics for Timothy's station at the time of trial, he could earn $1540 per month in overtime if he worked six hours of staffing overtime and sixteen hours of supplemental overtime. DiPatri also anticipated a downward trend in overtime opportunities because a new class of troopers was expected.

The parties resolved custody and parenting time issues by way of a parenting plan. Following a five-day trial, the judge issued an oral opinion on June 20, 2008. The final judgment of divorce was filed on July 28, 2008. This appeal followed.

II.

As previously noted, Danielle challenges the trial judge's findings with respect to the earning capacity of each party. The judge found that Timothy's present earning capacity was a gross annual income of $112,785. With respect to Danielle, the judge found that her current earning capacity was a gross annual income of $14,800, with a future annual-earning capacity of $52,790 upon graduation from the nursing program. She also challenges the accuracy of the trial judge's treatment of the tax consequences of his income calculations.

A.

Because the family courts possess special expertise in matters such as the calculation of support obligations, their factual determinations are entitled to a high degree of deference. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Crespo v. Crespo, 395 N.J. Super. 190, 193 (App. Div. 2007). This regard is particularly warranted when the trial record consists largely of testimonial evidence and entails credibility determinations. Cesare, supra, 154 N.J. at 412.

Consistent with this standard of review, "[f]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Therefore, an appellate court should not reverse a trial court's finding unless it finds that the determinations "'are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (citing Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)).

A trial judge establishing a spousal support obligation must consider the thirteen factors enumerated in N.J.S.A. 2A:34-23(b). See Crews v. Crews, 164 N.J. 11, 26 (2000) ("An alimony award that lacks consideration of the [factors set forth in N.J.S.A. 2A:34-23(b)] is inadequate . . . ."). Danielle does not challenge the legal standard applied by the trial judge. Instead, she challenges the factual findings which informed his application of the first factor, "[t]he actual need and ability of the parties to pay," N.J.S.A. 2A:34-23(b)(1), and the fifth factor, "[t]he earning capacities, educational levels, vocational skills, and employability of the parties," N.J.S.A. 2A:34-23(b)(5).

B.

Danielle contends that the gross annual income imputed to Timothy was too low because, in part, the trial judge considered "prejudicial and irrelevant testimony" regarding Timothy's desire to spend more time with the children.

During closing argument, Danielle had argued that Timothy was not seeking enough overtime and asked the judge to impute $120,000 per year to Timothy, comprised of a base annual salary of approximately $100,000, and six hours of staff overtime and sixteen hours of supplemental overtime per month. While the trial judge found that Timothy had not sought all available overtime opportunities, he concluded that Timothy was not likely to accrue the same amounts of overtime as he had during the marriage. Consequently, he imputed a gross annual income of $112,785 per year to Timothy, consisting of a base annual salary of approximately $100,000, and four hours of staff overtime and ten hours of supplemental overtime per month.

The difference between the income that Danielle advocated during closing and the income that the court ultimately imputed was two hours in staff overtime and six hours of supplemental overtime. The narrow issue before us, then, is whether the overtime hours imputed by the trial court are so inconsistent with the record that reversal is warranted. We find no basis for reversal here because "[a] trial judge's decision to impute income of a specified amount will not be overturned unless the underlying findings are inconsistent with or unsupported by competent evidence." Storey v. Storey, 373 N.J. Super. 464, 474-75 (App. Div. 2004).

Generally, "[a] supporting spouse's potential to generate income is a significant factor to consider when determining his or her ability to pay alimony." Miller v. Miller, 160 N.J. 408, 420 (1999). A party may not deliberately remain underemployed to evade his or her support obligations, and a trial judge has the discretion to impute a higher income to an individual if it finds that the party is intentionally earning less than he or she is capable of. Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001). However, we have recognized that there are no bright-line rules which govern the imputation of income. Storey, supra, 373 N.J. Super. at 474. See also Caplan v. Caplan, 182 N.J. 250, 270 (2005) (discussing factors a court should consider in imputing income for the purpose of calculating child support).

For instance, in Storey, supra, 373 N.J. Super. at 468, an obligor spouse appealed a trial judge's order denying his post-judgment application to reduce his alimony obligation based on his diminished earnings. We held that a trial judge must first assess whether the "obligor's decision [to earn less] is 'reasonable' under the circumstances," and that this assessment of reasonableness requires the consideration of many factors, such as the availability of work and parental responsibility for children. Id. at 469-71 (quoting Deegan v. Deegan, 254 N.J. Super. 350, 357 (App. Div. 1992)). The trial judge's findings as to Timothy's present earning ability were consistent with the governing legal principles outlined above.

Danielle contends that the judge placed "undue emphasis on the decrease in overtime," and did not fully account for Timothy's potential overtime earnings when it assessed his earning capacity. However, the trial judge specifically acknowledged that Timothy had a continuing obligation to work overtime:

The Court is also satisfied that Mr. Mathias has some opportunities for overtime that he has chosen not to pursue due to reasons that he expressed were child-rearing reasons . . . .

. . . .

I recognize that those types of overtime may be difficult to work in light of his child responsibilities, but [] his working some overtime was the standard [] of living that the parties enjoyed and there needs to be some responsibility on his part . . . to have to go that extra step to [] earn money when you can . . . .

After recognizing that Timothy had voluntarily declined to seek overtime opportunities, the trial judge next determined how much overtime he could reasonably expect to earn in light of his parenting obligations and the overtime limitations to which DiPatri attested.

The judge explained that he was imputing four hours of staff overtime per month, rather than the six hours advocated by Danielle, based on DiPatri's testimony that the latter figure was from an "exceptional month" not likely to recur. The judge also found that, although Timothy could not work supplemental overtime on the weekends he had the children, he could avail himself of supplemental overtime opportunities during the week. In accordance with these findings, the judge imputed ten out of the maximum of twenty-four hours of supplemental overtime discussed by DiPatri. The trial judge acted well within his discretion in making this determination. See Cesare, supra, 154 N.J. at 412 (recognizing that the trial judge is in the best position to assess the credibility of witnesses).

The second error Danielle alleges is that the trial judge based his findings on an improper consideration of "prejudicial and irrelevant testimony" regarding Timothy's attempts to spend more time with his children. Although the issue of parenting time was not a trial issue as such, Danielle was the first to raise her childcare obligations in testimony about her earning capacity. The trial judge appropriately admitted Timothy's statements on the issue for the purpose of rebutting Danielle's claim that she could not work more because of her parenting responsibilities. Danielle probed Timothy's motives for reducing his overtime hours on cross-examination and through prior inconsistent statements.

The trial judge found that Timothy's decision to prioritize the needs of his children over his career was "reasonable," commenting that Danielle "[had] also done the same thing." The trial judge made those remarks to recognize that the parties were "[b]oth . . . trying to do what's right" and not, as Danielle suggests, to justify the overtime imputed to Timothy. Ultimately, the trial judge required Timothy to work as much overtime as his existing parenting schedule would permit.

Finally, Danielle argues that Timothy's "desires to spend more time with his children [were] entirely irrelevant." This contention is inconsistent with case law and the alimony statute itself. Indeed, as discussed, we have held that parental responsibility is a relevant factor in determining whether a supporting spouse with diminished earnings has acted reasonably. Storey, supra, 373 N.J. Super. at 470-71. This factor is also specifically enumerated in N.J.S.A. 2A:34-23(b)(7). We find no error in the trial judge's consideration of Timothy's testimony for the limited purpose of assessing the reasonableness of his conduct.

Consequently, because his decision was well-supported by the record, we affirm the trial judge's decision to impute four hours of staff overtime and ten hours of supplemental overtime to Timothy each month, rather than the amounts advocated by Danielle.

C.

Danielle also challenges the trial judge's findings with respect to her present and future capacity to earn, arguing that the amounts imputed to her by the trial judge are too high and not supported by the record. Because we find the judge's basis for his imputation of present and future income to Danielle unclear, we remand the matter to the trial court for further consideration.

The trial judge imputed two incomes to Danielle. The amount of $14,800 per year as her current earning capacity was said to be based upon her earnings as of the time of trial. The amount of $52,790 per year for the future was based on Danielle's potential earnings upon graduation from nursing school.

The entirety of the court's reasoning for imputing the first sum of $14,800 to Danielle was contained in five paragraphs:

With regard to the plaintiff's ability to earn, what plaintiff is doing to earn money now I find to be reasonable. I find that she's doing everything that she can at the present time, and if not, more than she can at the present time.

Based upon the testimony and the evidence, she's currently working at the [restaurant] in Wilmington, Delaware. She's earning approximately $106 per week at the [restaurant] and $72 per week helping the elderly woman, which totals $178 per week.

Plaintiff [] is using all her free time, just about, to care for the children, to attend school and to study, but she did testify that she could potentially work another shift, but candidly, it's not going to amount to too much if she can pick up a shift or two, I believe was her testimony, every now and again.

And I did her calculations differently as well. [] I added a shift or two and I came out with a figure of approximately $300 that she could earn per week and then I did a basic calculation, which I just took minimum wage, which is $7.15 an hour and multiplied that by forty hours, and that comes out to $286 per week.

She can't work forty hours and she earns more than minimum wage in her present job, but to impute that amount to her, the Court deems to be reasonable in these circumstances; that is, that plaintiff has the ability to earn, on average over the course of the full year, $286 per week, which totals $14,800 [] per year.

As discussed, a trial judge has the discretion to impute income, but only after he has first found that a party is voluntarily unemployed or underemployed. Caplan, supra, 182 N.J. at 268; Golian, supra, 344 N.J. Super. at 341; Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998). In fact, "[s]uch a finding is requisite, before considering imputation of income." Dorfman, supra, 315 N.J. Super. at 516. There was no such finding here.

To the contrary, the court found that Danielle was doing all "if not, more than she [could] at the present time" and that what she was doing to earn money was "reasonable." He stated that Danielle "can't work forty hours" but nonetheless deemed it appropriate to impute an annual income which was based on forty hours of work per week. The oral decision provides little insight to the trial judge's reasoning and the facts relied upon to reconcile these contradictory findings.

Timothy has identified testimony which the trial judge could conceivably have relied on to conclude that Danielle was not earning to her full capacity. But Timothy does not explain how, on this record, we could properly assume that the trial judge in fact relied on that evidence when the trial judge did not reference the facts identified by Timothy in his findings.

The record shows that there was substantial disagreement as to whether the parties had agreed to, and whether the marital standard could have supported, Danielle's ultimate decision to quit her teacher's aide position and attend school on a full-time basis. Resolution of these issues would have been relevant to determining whether Danielle was underemployed and, if so, whether that status was reasonable. See Storey, supra, 373 N.J. Super. at 469-71 (discussing indicia of reasonableness when a party earns less than he or she is capable of). The absence of these findings warrants a remand. Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996) ("Naked conclusions are insufficient. A judge must fully and specifically articulate findings of fact and conclusions of law.").

Because the trial judge failed to find that Danielle was voluntarily and unreasonably underemployed, it follows that he was not in a position to impute to her income in excess of her actual income. See Caplan, supra, 182 N.J. at 268 ("In determining whether to impute income, the guidelines instruct that the trial court must first determine whether the parent has just cause to be voluntarily unemployed.").

We find similar problems with the trial judge's determination of Danielle's future earning capacity. He imputed $52,790 to Danielle, effective January 1, 2011, relying exclusively on wage data that Danielle submitted during trial, and making no specific findings as to why he concluded that a new RN would actually be able to achieve such earnings at that time.

The trial judge appropriately referred to the New Jersey Department of Labor statistics as a source to consider in imputing Danielle's future income producing capacity. Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A (12)(a) to R. 5:6A at 2324 (2009); see also Storey, supra, 373 N.J. Super. at 475. However, Danielle has not held a full-time job since the children were born. She has never worked as an RN, has no experience in the healthcare field, and has no specific prospective employers. There was no evidence that the yearly income imputed by the trial judge was an appropriate rate for an inexperienced, recently licensed RN in New Jersey.

In short, although the judge used the appropriate source for imputing income, he did not take other significant, relevant factors into consideration. A trial judge is tasked to "find the facts and state its conclusions of law thereon in all actions tried without a jury." R. 1:7-4(a). The judge here did not identify which particular facts persuaded him to conclude that Danielle could make the imputed sum of $52,790 as of January 1, 2011. We find, therefore, that the amount of income imputed to Danielle was not supported by the evidence. Overbay v. Oberbay, 376 N.J. Super. 99, 106-07 (App. Div. 2005).

D.

Danielle next challenges the sufficiency of the rehabilitative and permanent alimony amounts awarded by the trial. She asserts that the rehabilitative alimony amount is too low to enable her to achieve self-sufficiency, that the duration of the payment period is too short, and that the trial judge should have required Timothy to bear the costs of her education. As to the permanent alimony award, Danielle argues that the amount of the award is inadequate to sustain her at the marital standard of living.

Because our decision will require a recalculation of the alimony awards based on the re-determined income attributed to Danielle, we cannot specifically address the quantum of the awards made on the basis of the questioned figures. We make the following observations to guide the trial judge on remand.

A trial judge has broad powers to establish alimony in addressing the unique circumstances of the cases that come before it. Heinl, supra, 287 N.J. Super. at 344. The general purpose of alimony is to enable the supported spouse to maintain a standard of living comparable to the one enjoyed during the marriage. Ibid.

A court may thus award various types of alimony: permanent, rehabilitative, limited duration, or reimbursement. N.J.S.A. 2A:34-23(b). The specific purpose of rehabilitative alimony is to enable the supported spouse to "'complete the preparation necessary for economic self-sufficiency.'" Crews, supra, 164 N.J. at 34 (quoting Hill v. Hill, 91 N.J. 506, 509 (1982)). Self-sufficiency "describes the point at which the supported spouse is deemed to have reached a level at which he or she can support himself in a manner reasonably comparable to the marital standard of living." Ibid.

The record shows that the trial judge arrived at the alimony awards by determining the amount that Danielle needed in order to achieve the marital standard, and then combined the child support and alimony awards in order to cover that difference. The practical effect of that approach was that the child support award reduced Timothy's spousal support obligation. Case law is clear that child support belongs to the child, and not the custodial parent. Pascale v. Pascale, 140 N.J. 583, 591 (1995). Similarly, the purpose of alimony is to "enable the dependent spouse to maintain a standard of living reasonably comparable to the standard established during the marriage, while also considering the ability of the dependent spouse to become self-sufficient." Crews, supra, 164 N.J. at 33. The trial judge's methodology appears to have conflated these distinct obligations.

E.

Danielle's final basis for appeal is that the trial judge did not evaluate the tax implications of the alimony awards as required by N.J.S.A. 2A:34-23(b)(12). Because of our remand, we need not reach that issue. However, we note that, on remand, the trial judge should articulate his determination with respect to that factor.

III.

In summary, we affirm the trial judge's determination of the income imputed to Timothy, but vacate the imputation of income to Danielle. We remand to the Family Part for further consideration consistent with this opinion. We do not retain jurisdiction.

 
Affirmed in part; vacated and remanded in part.

(continued)

(continued)

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