YVONNE A. HOPKINS v. DAVID O. HOPKINS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

YVONNE A. HOPKINS,

Plaintiff-Respondent,

v.

DAVID O. HOPKINS,

Defendant-Appellant.

July 24, 2013

Submitted May 7, 2013 Decided

Before Judges Alvarez and Waugh.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-0979-03.

David O. Hopkins, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Defendant David O. Hopkins appeals a January 10, 2012 order of the Family Part requiring him to pay $700 per month in alimony, calculating alimony arrears retroactive to November 29, 2006, and ordering him to pay $300 per month towards that sum. The payee, plaintiff Yvonne A. Hopkins, is defendant's former wife. We affirm.

We will not detail the extensive procedural history in this matter, as it is not relevant to the issues before us. Suffice it to say that this is defendant's third appeal from alimony orders. In addition to challenging the monetary award, defendant also appeals from the trial judge's denial of his application that she recuse herself from the case. The judge rendered her decision after a plenary hearing conducted over two days, resulting from the remand in the second appeal taken by defendant. See Hopkins v. Hopkins (Hopkins II), No. A-4431-08 (App. Div. Sept. 30, 2010) (slip op. at 7). Defendant was ordered to pay $300 per week in alimony for the period of November 29, 2006, through November 30, 2008; $975 per month from December 1, 2008, through December 31, 2009; $650 per month from January 1, 2010, through August 31, 2010; and $700 per month from February 1, 2011, through December 31, 2011. The $700 ongoing obligation and $300 towards arrears was ordered effective January 2012.

The parties divorced in 2006 after a long-term marriage. They have three adult children, one of whom suffered a severe brain injury in 1998 as the result of a hit-and-run accident. He requires round-the-clock care and lives with plaintiff. Plaintiff, formerly a music teacher, last worked in 1997, then earning $33,750. Commencing in 2010, she began to receive $717 per month in Social Security benefits. The child residing with her receives $620.30 in Social Security benefits because of his disability, and an additional $100 per month in Supplemental Security Income. Plaintiff moved to Texas to reside with family, but the arrangements were unsatisfactory. In 2010 she returned to New Jersey. She is currently involved in Texas litigation over money she expended to make the home in which she was then living wheelchair accessible. Her current case information statement reflects modest monthly living expenses totaling $2362. Her combined monthly income for herself and her disabled child is $1437.

Defendant earned $65,000 in 2002, which included income from his job as a business telephone salesman. His income decreased in subsequent years, with approximate earnings of $57,000 in 2003, $49,000 in 2004, $41,000 in 2005, $40,000 in 2006, $43,000 in 2007, and $39,000 in 2008, including approximately $5000 in unemployment benefits. Defendant's employer terminated him in 2008. He received $528 weekly in unemployment benefits, ending in September 2010.

Defendant worked in pharmaceutical sales earlier in his career, but believed he was no longer qualified to work in the field. He interviewed for a position as a legislative director at a political organization, but did not receive the job.

Defendant stopped looking for work after his unemployment benefits ran out in 2010, testifying that he became discouraged, and retired. He was sixty-three years old when he chose to retire rather than continue looking for work. Defendant currently receives $1512 per month in Social Security benefits; until recently, he also possessed a real estate license. Defendant only earned two commissions in the past ten years, $1300 for selling a lot to Habitat for Humanity, and $6000 for selling a house to a connection he made while volunteering on a political campaign. He let his license lapse in June 2011 rather than pay the $500 fee to renew it. The Internal Revenue Service (IRS) currently holds a tax lien of $360,000 against defendant, who has previously completed bankruptcy proceedings. He anticipates the IRS will write off its lien as uncollectable in the near future. In the bankruptcy, defendant discharged almost $200,000 in credit card debt.

Defendant currently lives with his brother in a home formerly owned by his deceased mother and currently owned by his sister. He pays $800 in property taxes and other expenses in lieu of rent, in addition to utilities. He presented a monthly budget of $2161, while claiming earnings of only $1459 in Social Security. Plaintiff is sixty-five years of age; defendant is sixty-six years old. Defendant has accumulated nine new credit cards since his bankruptcy, which he uses to cover some of his expenses and which are, by his description, "maxed out."

At the conclusion of the hearing, the trial judge determined that defendant was capable of earning approximately $40,000 per year, despite his extended unemployment. She also determined that defendant was not entitled to voluntarily retire, and that his decision to stop looking for employment in 2010 was "premature." She further found that he could attempt to renegotiate his rental arrangement with his sister as a way to reduce his expenses, and that he was capable of earning at least $250 per week. For these reasons, the trial judge awarded $700 per month in alimony going forward, exclusive of the $300 monthly arrears contribution.

On appeal, defendant raises the following points:

POINT I

THE TRIAL COURT AGAIN IMPROPERLY IMPUTED INCOME TO ME. THE APPELLATE DIVISION['S] PREVIOUS OPINION(S) ASSERTED THAT THE FAMILY TRIAL COURT IMPROPERLY IMPUTED INCOME TO ME WITHOUT EVIDENCE TO SUB[S]TANTIATE IT AND ALIMONY SUPPORT BASED UPON THE IMPUTED AMOU[N]T.

POINT II

THE TRIAL JUDGE WAS OVERTLY BIASED AND HOSTILE TO ME THROUGHOUT AND CONDUCTED THE CASE IN A MANNER THAT COMPROMISED THE INTEGRITY, IMPARTIALITY, NEUTRALITY AND DIGNITY OF THE ADJUDICATIVE PROCESS AND AN ABUSE OF DISCRETION.

POINT III

THE JUDGE'S REFUSAL TO TREAT MY "INVOLUNTARY" RETIREMENT AS A CHANGE OF CIRCUMSTANCE WAS AN ERROR.

In general, the scope of review of a trial court's findings of fact is limited, and these findings are "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). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding," including cases involving child support, alimony, and divorce. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Further, a family court's decision regarding imputation of income for the purpose of alimony or child support will only be reviewed for abuse of discretion. Tash v. Tash, 353 N.J. Super. 94, 99 (App. Div. 2002). "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).

I

We do not agree with defendant that the trial court erred by imputing income. His contention is, simply stated, that his only source of income is $18,000 in Social Security benefits, that he is now sixty-six, and that he is incapable of finding work. In his view, the court should have considered this significant reduction in earnings to have been involuntary, and found it to be a change of circumstances which warranted the complete elimination of any alimony obligation.

Defendant also argues that his retirement at a minimum constitutes a change of circumstances necessitating modification of his alimony obligation. A change in circumstances may, in certain situations, justify a modification in alimony. See Lepis v. Lepis, 83 N.J. 139, 151 (1980). In determining whether a supporting spouse's retirement constitutes such a change in circumstances, a court should look at "'the age, health of the party, his motives in retiring, the timing of the retirement, his ability to pay maintenance even after retirement and the ability of the other spouse to provide for himself or herself.'" Deegan v. Deegan, 254 N.J. Super. 350, 357 (App. Div. 1992) (quoting In re Marriage of Smith, 396 N.E.2d 859, 863 (Ill. App. 1979)).

An obligor seeking to retire before the age of sixty-five must meet a higher burden in order to modify alimony. See Silvan v. Sylvan, 267 N.J. Super. 578, 580-81 (App. Div. 1993). An involuntary retirement merely requires an analysis of the "alteration in the parties' financial circumstances" in determining whether an adjustment in alimony is warranted. Deegan, supra, 254 N.J. Super. at 355. Even if retirement is voluntary, "where a payor spouse has substantial reasons for retiring (i.e., health concerns) and the effect on the payee spouse is minimal (due, for example, to other available income, qualifying for Social Security, or new employment) the balance will be struck in favor of" permitting early retirement. Id. at 358. But where "the payor spouse simply wants a new life and the payee spouse will become destitute without support, the payee's interests will prevail." Ibid. In order to prevail, the payor spouse must show "that the advantage substantially outweighs the disadvantage to the payee." Ibid.

In this case, defendant's initial unemployment occurred through no fault of his own, as his employer terminated him when the telephone sales business experienced financial difficulties. His decision to retire in October 2010, however, at the age of sixty-three, was made not because of any health issues, but because he became discouraged about finding work. He showed evidence that he unsuccessfully searched for work online, but he did not prove he engaged in more substantial efforts at seeking employment, nor did he establish an inability to obtain at least a part-time job to supplement his income. In this case, defendant's retirement was indeed premature, particularly in light of the fact plaintiff provides round-the-clock care to a disabled adult child.

Furthermore, "[i]mputation of income is a discretionary matter not capable of precise or exact determination but rather requiring a trial judge to realistically appraise capacity to earn and job availability." Storey, supra, 373 N.J. Super. at 474. "Rarely is there evidence that an obligor turned down an offer of employment at a fixed amount, and proof of that or similar certainty is not a prerequisite to imputation." Ibid. The obligor spouse has the burden of establishing "that he or she is earning at capacity, i.e., not underemployed, in order to avoid imputation." Ibid. A finding of voluntary underemployment is required prior to imputing income. Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998).

There is simply nothing about defendant's history, based on our review of the record, which would lead us to conclude that he is or was unemployable and that he had no choice but to retire. We therefore concur with the trial court's conclusion that he can earn income beyond his Social Security benefits and that imputation of income was appropriate. The trial judge did not abuse her discretion in concluding that defendant became voluntarily unemployed at the age of sixty-three and that $40,000 in income should be imputed to him in calculating his alimony obligation. See Storey, supra, 373 N.J. Super. at 474-75. We agree with the trial judge that defendant is capable of earning a total of at least $40,000 per year, as her decision is supported by adequate, substantial, credible evidence. See Rova Farms Resort, Inc., supra, 65 N.J. at 484.

Additionally, the advantages of early retirement to defendant did not outweigh the detriments to plaintiff. See Deegan, supra, 254 N.J. Super. at 358. Plaintiff currently receives only $717 per month in Social Security benefits and cares for her disabled adult son, leaving her unable to work. Plaintiff testified that she had resorted to relying on food banks to feed herself and her son because she was not receiving alimony. She pays housing costs of $1719 per month in addition to transportation and personal expenses; while she will likely need to find ways to reduce these costs, she needs assistance from defendant. Hence, the judge's findings are supported by the record.

II

With regard to bias, we believe defendant's arguments to be so lacking in merit as not to warrant much discussion in a written opinion. See R. 2:11-3(e)(1)(E). Both parties were disruptive during the course of the hearing and at times disrespectful both of the court and of each other. Their life circumstances certainly shed some light on the despair and anger they expressed. However, a judge has a duty to disqualify him or herself only in those situations in which they are unable to reach a fair and unbiased decision. See R. 1:12-1. It was apparent from the record that there were times the trial judge experienced difficulty controlling the admission of evidence and the flow of the hearing. But there was adequate, substantial, credible evidence supporting the trial judge's decision. This was a difficult case with two self-represented litigants who had years of acrimonious litigation behind them.