SUSAN TOTH v. BRIAN JANSSEN

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION


SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3254-10T4





SUSAN TOTH,


Plaintiff-Appellant,


v.


BRIAN JANSSEN,


Defendant-Respondent.


________________________________________________________________

September 20, 2012


Submitted February 15, 2012 - Decided


Before Judges Yannotti, Espinosa and Kennedy.


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-374-96.


Lanza & Lanza LLP, attorneys for appellant (John E. Lanza, of counsel and on the brief).


Respondent has not filed a brief.


PER CURIAM

Plaintiff appeals from an order of the court that fixed her child support obligation and made it retroactive to a date prior to the date defendant filed a motion for modification of child support. We affirm in part, reverse in part and remand for further proceedings.

Following the parties' divorce in 1998, plaintiff was the parent of primary residence for their two children. In July 2009, plaintiff filed a motion to relocate to California with the children so she could care for her terminally ill father. The court granted her request with respect to the parties' daughter but denied the request as to their son and designated defendant the parent of primary residence as to him. Neither party was ordered to pay child support.

In December 2009, the parties' daughter chose to return to New Jersey to reside with defendant. In February 2010, defendant filed a motion for a change of custody and modification of child support. The court awarded primary custody of both children to defendant and, when the parties failed to mediate the support issue, held a plenary hearing.

Defendant is self-employed as a painter. The court determined that his average earned income was $35,000 per year. The court rejected plaintiff's argument that defendant was underemployed and declined to impute income to him based upon the New Jersey Department of Labor Prevailing Wage Rate for a painter of new construction, which showed a range of wages from $72,570 to $84,614 per year.

Plaintiff was employed as a nurse for most of the period from 1991 to 2006. She earned her highest salary, $80,000, between 2002 and 2003. At her last job, as a floor nurse at Hunterdon Medical Center from 2004 to 2006, she earned an annual salary of $65,000. She was not employed after moving to California with her husband to care for her father. She claimed that, in addition to her responsibilities related to her father, she was unable to work because she was disabled due to a back injury. The court rejected plaintiff's claim that she was unable to work because she was disabled and found that she was willfully unemployed. The court declined to apply either the California minimum wage or the California Department of Labor Wage Statistics for a registered nurse. Instead, the court imputed the amount she had earned at her last employment, $65,000, to plaintiff as her income.

The court entered an order in January 2011 that modified the child support as follows:

The child support for the period of October 25, 2008, to September 1, 2009 shall be negative $57[.]00 per week payable to the Plaintiff resulting in a credit to the Defendant of that amount for that time period. The child support for the period of September 2, 2009, to December 10, 2009, shall be $102.00 per week payable by the Plaintiff to the Defendant. The child support from December 11, 2009, to the present shall be $259.00 per week payable by the Plaintiff to the Defendant.

In this appeal, plaintiff argues that the trial court erred by: failing to afford her some credit for the time spent caring for her father; making the support award retroactive to a date prior to defendant's application; and in its calculation of defendant's income.

In reviewing a decision of a family court, we "defer to the factual findings of the trial court," N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008), in recognition of the "family courts' special jurisdiction and expertise in family matters . . . ." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, and credible evidence." Cesare, supra, 154 N.J. at 411-12. It is only "when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'" that we will intervene and make our own findings "to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v G.L., 191 N.J. 596, 605 (2007); see also Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

Applying these principles to the facts here, we are satisfied that there was an adequate basis in the record for the trial court's conclusion that an income of $65,000 should be imputed to plaintiff. Her employment history demonstrated her capacity to earn this amount and the California Department of Labor statistics reflect income ranges similar to her historic earnings.

In support of her claim that she was unable to work, plaintiff testified as to her back problems and surgery to replace a cervical disk in June 2010. She also presented letters, but no testimony, from physicians. Plaintiff testified that she could not work because the pain in her back prevented her from sitting or standing for long periods of time. Yet, she admitted that, if employed as a nurse, she had the opportunity to sit, stand, or alternate between positions while caring for patients. She never sought a reasonable accommodation from an employer to enable her to work; never sought employment outside the nursing field and did not file an application for disability benefits. We are satisfied there was sufficient credible evidence in the record to support the trial court's conclusion that plaintiff failed to show she was disabled and unable to work.

Plaintiff also argues that the trial court erred in failing to reduce her imputed income by the time she spent caring for her father. However, as the court noted and plaintiff acknowledged, her father was not dependent upon her for care. The court further noted that the record failed to show that plaintiff tended to her father on a twenty-four hour basis. Because plaintiff's father had the benefit of nursing services, the trial court's conclusion that his needs did not preclude her from obtaining employment was supported by the record.

Turning to the income attributed to defendant, the record does not support a calculation of defendant's income as $35,000. On his case information statement (CIS), dated December 30, 2010, defendant claimed he earned $19,944 in the prior year and that his earnings for the current year were $24,000. He had a $100,000 mortgage on his home, which he valued at $330,000, and had a monthly mortgage payment of $1405.78. He claimed annual expenses that exceeded $54,000. Therefore, according to defendant's CIS, his expenses were $30,000 more than his income in 2010. Based upon defendant's stated income, he would have less than $8,000 to pay approximately $37,000 in expenses for the entire year after he paid his mortgage. Even at the $35,000 income the court attributed to him, defendant's expenses for 2010 would exceed income by more than $19,000. Yet, the only debt he listed beyond his mortgage was $7500, consisting of an unpaid legal fee of $1500 and $6,000 in credit card debt. These numbers cannot be reconciled. The court's determination that defendant's income should be calculated at $35,000 therefore was not supported by adequate, substantial, and credible evidence.

Plaintiff also argues that the trial court erred in ordering a retroactive modification of her child support obligation. N.J.S.A. 2A:17-56.23a states in pertinent part:

No payment or installment of an order for child support . . . shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed either directly or through the appropriate agent.


Defendant filed his motion for modification of child support in February 2010. Pursuant to the statute, any modification could only be ordered as of the date his notice of motion was mailed. It was, therefore, error to make the modification of support retroactive to October 25, 2008.

In summary, we affirm the trial court's finding with respect to the income imputed to plaintiff. We reverse the trial court's rulings as to the income attributed to defendant and the retroactive modification.

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.