RAMON A. BLANCAS v. TRACY BLANCAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1321-10T1

RAMON A. BLANCAS,

Plaintiff-Appellant,

v.

TRACY BLANCAS, n/k/a

TRACY KRAMER,

Defendant-Respondent.

_________________________________

March 16, 2012

Argued February 14, 2012 Decided

Before Judges A. A. Rodr guez, Sabatino, and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-705-09.

Matthew S. Coleman argued the cause for appellant (Karen Kirchoff Saminski, LLC, attorneys; Mr. Coleman, on the brief).

Brian E. Fleisig argued the cause for respondent (The Fleisig Law Firm LLC, attorneys; Mr. Fleisig of counsel and on the brief; Christopher O. Eriksen, on the brief).

PER CURIAM

Plaintiff Ramon A. Blancas appeals various aspects of a final judgment of divorce ("FJD") entered in this case after eight days of trial in August 2010. Among other things, plaintiff contests the trial court's (1) imputation of income to him for purposes of child support; (2) grant of sole legal and residential custody of the parties' daughter to his ex-wife, defendant-counterclaimant Tracy Kramer, f/k/a Tracy Blancas; (3) denial of unsupervised parenting time with his daughter; (4) change of his daughter's surname; (5) award of counsel and expert fees to defendant; (6) mandate that he purchase life insurance to cover his obligations under the FJD; (7) dismissal of the affirmative claims in his complaint and denial of his request to adjourn the trial an additional period; and (8) equitable distribution of marital assets, including an order requiring him to reimburse defendant for tuition expenses he incurred during the marriage.

For the reasons that follow, we affirm the terms of the FJD, except that we vacate the trial court's imputation of $136,791 in annual income to plaintiff and remand for further proceedings concerning that issue. We also remand for reconsideration of the fee-shifting awards to the extent that they may be affected by final resolution of the imputation issue.

I.

The following pertinent facts emerged at the trial, in which plaintiff represented himself and elected not to testify.

Plaintiff and defendant met in Mexico in January 2004. At the time, plaintiff was living and working as a lawyer in Mexico, his native country, and defendant, an American citizen, was living in the United States and working for a pharmaceutical company in New York. Defendant, then a widow, had been married twice before. Neither party had children from a prior relationship.

The parties married in August 2004. Plaintiff moved to the United States to live with defendant in New York. In April 2005, he became a permanent resident of the United States on the condition that he remain married.

One child of the marriage, a daughter, was born in May 2005. Defendant went on maternity leave and then worked part time for the pharmaceutical company until 2007 when she was laid off. She worked for another pharmaceutical company from 2007 through May 2009 when that firm also laid her off.

Plaintiff, meanwhile, enrolled in an English course at Pace University in September 2004. After he completed that program, plaintiff enrolled in an LL.M. program in securities and derivatives law at Fordham University School of Law in the fall of 2005. He graduated from Fordham in 2007. According to defendant's trial testimony, she financed plaintiff's full tuition at Pace and a portion of his Fordham tuition with her own funds. Defendant testified that she also tried to help plaintiff find a job, searching out career advice and job opportunities.

During their marriage, the parties started a company named "Enable U2." Defendant testified that she worked for Enable U2 for two weeks doing independent pharmaceutical contracting. Defendant initially incorporated the company in New York, and plaintiff later incorporated it in Mexico. Defendant testified that plaintiff set up two Enable U2 bank accounts in Mexico.

According to defendant's testimony, at the time of the marriage, she had a pension and a 401K account worth at least $83,000. At that point, she also had over $10,000 in her checking account and about $5000 in her savings account. Defendant testified that plaintiff did not bring any assets to the marriage.

Defendant testified that plaintiff had requested that she send money to Mexico to support his mother. She stated that, initially, they sent her $300 per month but that just before the parties' separation he "demanded" the payment be increased to $3000 monthly. When defendant was unable to pay that sum, plaintiff asked defendant's parents if they would send the money instead.

Defendant testified that plaintiff ultimately transferred approximately $11,000 to bank accounts in Mexico. Defendant also contended that plaintiff "pressured" her for money so that he could buy land in Mexico. He told her that he was going to use the money to start a business in Mexico, describing it as "some kind of legal advice or consulting business."

The parties purchased a home in Montclair for $240,000 in 2007. After the parties separated, the property went into foreclosure. Ultimately, defendant filed a bankruptcy petition.1

According to the trial proofs, during the course of the marriage, over $83,000 was withdrawn from defendant's pension account and over $127,000 was withdrawn from her checking and savings accounts. Defendant testified that her parents also loaned plaintiff $3500 to prepare and sit for the bar exam. However, as of the time of trial, plaintiff had not taken the bar exam nor had he fully repaid the loan.

According to the trial testimony of defendant and her own mother, plaintiff often did not participate in the daughter's care while the couple was living together. Plaintiff contested that assertion. He presented competing testimony from two acquaintances, who contended that they regularly saw plaintiff together with his daughter and that she seemed to be happy in his company.

In May 2007, plaintiff attempted to obtain a Mexican birth certificate for his daughter, which he did not procure until June 2008. Later that year, in October or November, plaintiff received a permanent United States residence card with no marital restriction.

By the summer of 2007 the parties' marriage had deteriorated. According to defendant's testimony, plaintiff threatened to relocate with their daughter to Mexico. The parties' relationship became increasingly contentious. By May 2008, they were no longer on speaking terms. They separated in June 2008 and obtained reciprocal restraining orders against each other.

Plaintiff, then represented by counsel, filed a complaint for divorce in the Family Part in September 2008. Defendant filed a counterclaim. She maintained custody of the daughter pending the divorce proceedings. According to the trial testimony, plaintiff stopped seeing the daughter after June 2008 and did not see her from that time through the time of trial.

After several adjournments, the case was tried on eight non-consecutive days in August 2010. Plaintiff was, by that point, self-represented because his third successive attorney had been relieved in April 2010 and not replaced. On the first day of the proceedings, plaintiff requested a further adjournment of the trial, which the court denied. Because plaintiff contended that he was unable to proceed without new counsel, the court dismissed his complaint and tried the matter solely on defendant's counterclaim.2 Plaintiff represented himself throughout the trial proceedings, examining witnesses and presenting arguments to the judge. Although English is not plaintiff's primary language, he declined the services of a Spanish interpreter on the second day of trial.

Defendant presented testimony from herself, her mother, an expert in vocational and rehabilitation counseling, and an expert in custody and parenting issues. As we have already noted, plaintiff presented testimony from two of his acquaintances who provided observations about the daughter's relationship with each of the parents. Plaintiff called no other witnesses, and he elected not to testify on his own behalf.

On the last day of trial, plaintiff moved into evidence a letter dated July 23, 2010, from the Department of the Army, stating that plaintiff had enlisted in the United States Army as a Specialist E-4. The letter further stated that plaintiff's basic training would last twenty-nine weeks and that he would be earning $1827 per month.

Upon considering the proofs, the trial judge3 issued an oral opinion on August 26, 2010, granting the parties a divorce and detailing his reasons with respect to the contested issues. A corresponding FJD was issued on September 30, 2010. The FJD was amended by several ensuing orders. On October 25, 2010, the court entered an order fixing child support, payable by plaintiff, at $500 per week, retroactive to the date of filing of the counterclaim. The terms of that child support obligation were repeated in an amended child support order dated December 6, 2010. Thereafter, on December 22, 2010, the court issued an additional order directing plaintiff to reimburse defendant for $14,875 in expert fees.

Among other things, the FJD and the supplemental orders of the trial court grant defendant sole legal and physical custody of the parties' daughter, consistent with the recommendation of the testifying expert and the court's findings as to the child's best interests. The court also granted defendant's request to change her own surname and that of the daughter to "Kramer," the surname of defendant's stepfather. Given the length of time since the daughter had seen her father, the court further ordered that the father's parenting time be resumed, initially, on a supervised basis. As suggested by the testifying expert, the court appointed a reunification therapist to aid in the resumption of a father-daughter relationship.

The trial court made several determinations with respect to financial issues. It did not award alimony to defendant, who had not sought it in her counterclaim or at trial. The court did, however, award child support to defendant. In making that calculation, the court, for reasons we will explore in more detail in Part II(B) of this opinion, infra, imputed $136,791 in annual income to plaintiff and approximately $82,000 in annual income to defendant. Based upon those figures, the trial court applied the Child Support Guidelines and computed a weekly child support obligation of $500. The court rejected plaintiff's arguments that the imputation of his income was too high and that his recent enlistment in the military at a much lower rate of pay warranted a significant reduction in his imputed earnings.

As to equitable distribution, the trial court found that most of the assets that defendant had owned at the time of the marriage had been dissipated. The court awarded any funds that may have remained in the parties' Mexican accounts to defendant. In addition, the court ordered plaintiff to reimburse defendant for any costs she paid in furtherance of his education.

The FJD further required plaintiff to purchase $1 million in life insurance coverage to help assure his compliance with his financial obligations to defendant and their child. Further, the trial court ordered that plaintiff reimburse defendant for $99,324.25 in counsel fees and $14,875 in expert fees. Other miscellaneous aspects of the terms of the divorce, which are not germane to this appeal, need not be discussed here.

Plaintiff now appeals numerous aspects of the FJD and the trial court's related orders on the grounds identified at the outset of the opinion. Defendant has not cross-appealed any of the court's determinations.

II.

A.

We begin with a brief discussion of the trial court's rulings granting sole legal and residential custody of the parties' daughter to defendant. We also consider, in a related vein, the court's requirement of supervised parenting time, its appointment of a reunification therapist, and its grant of a change of the child's surname. On the whole, we affirm those determinations, substantially for the cogent reasons expressed by the trial judge in his oral rulings.

We approach these custody-related issues with a deferential standard of review. The conclusions of trial judges regarding child custody are "entitled to great weight and will not be lightly disturbed on appeal." DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976); see also Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div.), certif. denied, 28 N.J. 147 (1958). Moreover, because the trial judge was the fact-finder and because he had the opportunity to assess the credibility and demeanor of the witnesses first-hand, we defer to his factual determinations, so long as they are supported by substantial credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974); see also Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Our "[a]ppellate review does not consist of weighing evidence anew and making independent factual findings; rather, our function is to determine whether there is adequate evidence to support the judgment rendered at trial." Cannuscio v. Claridge Hotel & Casino, 319 N.J. Super. 342, 347 (App. Div. 1999). Given the Family Part's special expertise, appellate courts must accord particular deference to fact-finding in family cases and to the conclusions that logically flow from those findings. Cesare, supra, 154 N.J. at 412-13.

On the custody issues, defendant presented testimony at trial from Judith Brown Greif, Ph.D. Dr. Greif has a master's degree in social work from the University of Chicago and a doctorate in clinical social work from Adelphi University. She is a licensed clinical social worker and a member of the National Association of Social Work. As of the date of trial, Dr. Greif had thirty years of work experience in the areas of divorce and custody, and she had previously been qualified as an expert.

In performing her evaluation of the custody and parenting issues, Dr. Greif conducted a series of interviews with plaintiff, defendant, and defendant's new boyfriend. Dr. Greif also met with the parties' daughter two times. The expert observed the daughter's interactions with her mother and the boyfriend. She did not observe the daughter's interactions with plaintiff because the child had not seen her father in over two years.

Based upon her investigation, Dr. Greif recommended that defendant have sole legal and residential custody of the daughter. The expert testified that the defendant is "certainly very involved and engaged with the child," noting, by comparison, that in over two years plaintiff had not seen the daughter or sought visitation by the court. Dr. Greif also expressed concern about the father's enlistment in the Army, especially given that he did not know where he would be stationed or how his work duties would affect his parental relationship.

Dr. Greif recommended that the child and plaintiff participate in reunification therapy because they had been separated for a significant period of time. However, she testified that such reunification therapy should not commence while plaintiff is still enlisted in the Army because "[i]t would not be advisable to start the reunification process, and then have him disappear for 29 weeks, because that is just a replay of what's happened."

Upon considering Dr. Greif's opinions, as well as the testimony of the lay witnesses, the trial judge concluded that it was in the child's best interest to be in the sole legal and physical custody of defendant. On the whole, the judge found defendant's testimony credible and discounted the competing testimony offered by plaintiff's acquaintances.

The judge rejected plaintiff's contention that he was the primary caretaker for the child during the parties' marital cohabitation, noting that "for much of this time [plaintiff] was in school[.]" The judge also found it significant that plaintiff had taken no steps in over two years to pursue visitation with his daughter.

Applying various pertinent factors under N.J.S.A. 9:2-4, the judge reasonably concluded that it was in the daughter's best interest to grant defendant sole legal and physical custody.

With regard to the parents' willingness to accept custody, the judge found that it was "unrefuted that [plaintiff] over time became detached from the child" and that [defendant] "clearly was the primary care giver for this child." The judge also noted that "there's no testimony from [plaintiff] as to how he would provide care and lodging for this child while in the [A]rmy" and that plaintiff provided the court with no testimony himself addressing the issue of custody.

The judge did state that he considered the previous alleged domestic violence a "non-issue." He also noted that the child's preference was not a factor in this case because she was too young to express one.

The judge found the stability of defendant's home life especially as compared to what plaintiff's home life would be like were he to join the Army to "weigh[] heavily in favor" of giving defendant custody. The judge found that parental employment status was not an issue here as both parents were unemployed at the time of trial.

The judge's conclusion, although it represents an exception to the frequent grant of legal custody to both parents, is justified in these circumstances and is supported by substantial credible evidence in the record. See Wilke v. Culp, 196 N.J. Super. 487, 496 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985) (recognizing that custody and visitation by a parent may be judicially restricted in certain instances in order to safeguard the child's interests).

We likewise sustain the trial court's condition of supervised visitation with the father and the appointment of a reunification counselor. These measures were endorsed by Dr. Greif and were reasonably adopted by the trial court in light of the proofs. See ibid.

The trial court also acted within its discretion in granting the requested change of the child's surname to match that of the custodial parent. See Gubernat v. Deremer, 140 N.J. 120, 144-45 (1995) (adopting a presumption that the surname the custodial parent selects for the child is in his or her best interest); Holst-Knudsen v. Mikisch, ___ N.J. Super. ___, ___ (App. Div. 2012) (slip op. at 20-22) (applying that presumption). But see Emma v. Evans, ___ N.J. Super. ___, ___ (App. Div. 2012) (slip op. at 7) (rejecting such a presumption where the parties were previously married).

Even if, for the sake of discussion, such a presumption did not apply as a matter of law, there is ample justification in this record to sustain the trial judge's determination, particularly given the judge's findings concerning the significant period of time during which plaintiff has had no contact with his daughter.

B.

We next turn to the financial issues, the most significant being the trial court's imputation of income and the child support calculations that were predicated on those income assumptions.

A critical factual question at trial was plaintiff's employability in the United States in the legal profession. As we have noted, plaintiff was trained as and formerly worked as an attorney in Mexico. He thereafter obtained an LL.M. at Fordham during the parties' marriage. However, plaintiff has not been admitted to the bar of any state, and he apparently has not worked for a legal employer in this country.

Defendant presented testimony at trial on this subject from Dr. David Stein, an expert in vocational and rehabilitation counseling. Dr. Stein holds a Master of Science degree in Vocational Rehabilitation Counselor Education from Kansas State Teachers' College and received a doctoral degree from Columbia Pacific University in 1986. He earned a graduate certificate in Life Care Planning from Capital University Law School in 2004. Dr. Stein has worked continuously since 1973 as a Vocational Rehabilitation Counselor. He is a licensed counselor in New Jersey, is a member of the American Rehabilitation Counseling Association, and is a past president of the American Board of Vocational Experts.

Dr. Stein conducted a vocational assessment of plaintiff in February 2010. First, Dr. Stein interviewed plaintiff in order to obtain "vocationally relevant information," such as his age, education, and work history. Then, Dr. Stein took that information and followed the United States Department of Labor's methodology to evaluate what jobs plaintiff would be qualified to perform.

According to plaintiff's resume, he had served as in-house counsel for Holiday Inn Hotels in Guadalajara, had been an associate at a Mexican law firm, had served as Assistant Legal Director for the Ministry of the Interior in Mexico City, and had been a law professor in Guadalajara. Based upon this information and the fact that plaintiff had obtained an LL.M. degree from Fordham University Law School, Dr. Stein opined that plaintiff could be expected to earn between $136,791 and $165,094 annually as an attorney in the New York City metropolitan area. Dr. Stein noted in this regard that plaintiff has an advanced degree in the law, is bilingual, and has worked in the corporate sector. The expert further opined that if plaintiff were to enlist in the Army as an entry-level specialist, earning $1827 per month, he "would be significantly underemployed."

The trial judge substantially credited Dr. Stein's expert testimony. In particular, the judge adopted Dr. Stein's assessment that plaintiff presented a very attractive profile for employability. The judge noted Dr. Stein's reference to statistics issued by the Department of Labor in determining that plaintiff was capable of earning between $137,000 and $165,000 annually. However, the judge concluded that, given the poor state of the economy, "it's only fair to calculate or impute for the purposes of calculation to [plaintiff] the low end of the salary range as testified [to by Dr. Stein.]" The judge thus concluded that plaintiff was capable of earning $136,791 per year.

With respect to plaintiff's recent enlistment in the armed forces, the trial judge observed, "it is [a] patriotic and laudable endeavor on his own part, [but that] does not mean that his child should suffer and be supported by less than what his earning potential is[.]"

On appeal, plaintiff contests the level of earnings imputed to him by the trial court because it is based upon unreasonable assumptions about his employability as a practicing attorney in the New York City area. Plaintiff stresses that he has not taken and passed the bar examination, that he has never worked for an American law office, and that his prior work as an attorney in Mexico does not assure that he will be employable as an attorney in the United States earning $136,791 or more per year. He also stresses that his present salary in the armed services is far less than $136,791. Thus, plaintiff argues, the trial court's calculation of child support is flawed.

We are guided by several legal principles in reviewing this issue. Subject to exceptions, the determination of a parent's child support obligation is generally to be guided by application of the child support guidelines. R. 5:6A. "The fairness of a child support award resulting from the application of these guidelines is dependent on the accurate determination of a parent's net income." Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2504 (2012).

If a trial court determines that a parent is "without just cause, voluntarily underemployed or unemployed" it may impute income to that parent. Ibid. Such a finding must be made before any income is imputed. Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998). A parent is voluntarily underemployed where he or she is "intentionally failing to earn that which he or she is capable of earning." Ibid.

When imputing income, trial courts first consider the parent's "potential employment and earning capacity using the parent's work history, occupational qualifications, educational background, and prevailing job opportunities in the region." Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2505 (2012).

We recognize that a trial court's imputation of income for purposes of child support generally will not be disturbed absent an abuse of discretion. Ibrahim v. Aziz, 402 N.J. Super. 205, 210 (App. Div. 2008); Storey v. Storey, 373 N.J. Super. 464, 479 (App. Div. 2004). That said, we conclude that this matter presents a rare instance where such discretion was misapplied and that the issue of income imputation must be remanded to the trial court for reconsideration and additional fact-finding.

Although plaintiff was previously employed in various legal positions in Mexico, that foreign employment as an attorney does not necessarily assure that he will obtain lucrative employment as an attorney in the United States. Plaintiff is not admitted to the bar in any state, which, of course, is a precondition to serving as a practicing attorney. Although he has now obtained an LL.M. degree from a prestigious American law school, plaintiff has no track record of working for a third-party legal employer in the United States.

Even if, hypothetically, plaintiff sat for and passed the bar, that is no guarantee of a job in the law, particularly in the current highly-competitive job market for recently-admitted attorneys. His prior service as a lawyer in Mexico and his international contacts might provide client-generating potential, but that prospect must logically be tempered by his lack of work experience in the American legal system. It may well be that plaintiff might realistically have to seek employment as a lesser-paid associate, or serve as a paralegal, or work at a lesser-paying law firm, or seek a position outside of the New York area, given his unproven skills as a lawyer in this country. Under the circumstances, we conclude that, notwithstanding Dr. Stein's ambitious expert assumptions, the trial court erred in imputing $136,791 in annual income to plaintiff.

We consequently remand for reconsideration of the income imputation issue as to plaintiff.4 The trial court shall conduct a plenary hearing on the issue to supplement the proofs adduced at trial. As part of its assessment, the trial court should give renewed consideration to plaintiff's current military service and, in particular, examine whether or not the public policies underlying the Servicemembers Civil Relief Act ("SCRA"), 50 U.S.C.A. App. 501 to -597, and the Soldiers' and Sailors' Civil Relief Act, N.J.S.A. 38:23C-1 to -26, New Jersey's version of the SCRA, potentially bear upon the income analysis. In particular, the trial court shall consider whether plaintiff is currently underemployed within the armed forces itself, and whether he reasonably could have pursued, or can pursue, higher-earning positions within the military that might reward him for his legal training.

Pending the trial court's renewed examination of the imputed income issue, plaintiff's child support level shall not be reduced. If, after the remand proceedings, the court finds that a reduction of plaintiff's imputed income is warranted, it shall consider whether any retroactive adjustment of arrears is justified. We dictate no timetable for the completion of the remand, given that the logistics of scheduling further hearings may be complicated by plaintiff's ongoing military obligations. We also leave it to the discretion of the trial court to determine if additional discovery and expert opinion are appropriate.

Because of the inconclusive status of the income imputation issue, we do not pass at this time upon the trial court's award of counsel fees and expert fees to defendant. Such fee-shifting hinges, in part, upon financial considerations, see Williams v. Williams, 59 N.J. 229, 233 (1971) and Rule 5:3-5(c), and the review of those fee awards must abide the outcome of the remand proceedings. The trial court shall retain the authority to make appropriate adjustments to the fee awards, depending on the outcome of the income imputation issue on remand.5

C.

The additional points raised on appeal by plaintiff concerning equitable distribution, life insurance, and other matters lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). Those determinations are supported by ample credible proof and equitable justification, and they are consequently affirmed.

Affirmed in part and remanded in part. We do not retain jurisdiction.

1 Plaintiff has since also filed a bankruptcy petition. Defendant's and plaintiff's bankruptcies apparently do not appear to affect the issues now on appeal.

2 Although plaintiff opposed many of the items of relief sought by defendant, he did not contest the divorce itself, which the parties mutually desired.

3 The judge is now deceased.

4 We discern no error, however, in the trial court's imputation of income as to defendant.

5 Any application for appellate counsel fees by either party is likewise referred to the trial court for initial disposition. See R. 2:11-4.