BRENDA SANTIAGO v. EDWIN WILLIAM CONCEPCION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3726-11T4

BRENDA SANTIAGO,

Plaintiff-Respondent,

v.

EDWIN WILLIAM CONCEPCION,

Defendant-Appellant.

February 27, 2013

Argued January 23, 2013 - Decided

Before Judges Yannotti and Hoffman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FD-07-2154-10.

Edwin William Concepcion, appellant, argued the cause pro se.

Respondent has not filed a brief.

PER CURIAM

Defendant Edwin Concepcion appeals from a February 21, 2012 Family Part order granting plaintiff's motion for an increase in child support. Plaintiff argues that the motion judge erred in imputing income to him based upon his occupation. For the reasons that follow, we affirm.

I.

Defendant has been self-employed as an attorney since 2009, following his admission to the bar in 2008. Plaintiff Brenda Santiago works part time at a bakery. The parties were never married. On November 19, 2009, plaintiff gave birth to their son, A.S.

The initial child support order entered on January 6, 2011 imputed only minimum wage income of $290 per week to defendant. At the time, plaintiff was receiving Temporary Assistance for Needy Families (TANF). Three months later, plaintiff filed a motion to increase child support, which the family court denied, as plaintiff was still receiving TANF payments. In October 2011, plaintiff filed a second motion to increase child support. At that point, plaintiff had obtained part-time employment and was no longer receiving TANF payments.

The judge imputed an annual salary of $30,000 to defendant. After crediting defendant with fifty-two overnights, the judge increased defendant's child support obligation to $105 per week.

II.

Our scope of review of the trial court's determinations in this context is limited. Given the Family Part's special expertise, appellate courts must accord particular deference to determinations by Family Part judges. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). This general principle of deference extends to the Family Part's decisions on motions to modify child support. Every application to modify a support obligation "rests upon its own particular footing and the appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters." Martindell v. Martindell, 21 N.J. 341, 355 (1956).

Our rules require that the trial court apply the child support guidelines (the guidelines) when considering child support; however, the court may modify or disregard the guidelines where good cause is shown. Good cause shall consist of a) the considerations set forth in Appendix IX-A, or the presence of the other relevant factors which may make the guidelines inapplicable or subject to modification, and b) the fact that injustice would result from the application of the guidelines. The determination of good cause lies within the sound discretion of the court. Moreover, if the guidelines are not applied, or if the guidelines-based award is adjusted, the reason for the deviation must be explained.

[Caplan v. Caplan, 182 N.J. 250, 264 (2005) (internal quotation marks and citations omitted).]

A party seeking to modify the amount of child support is required to make a showing of "changed circumstances." Lepis v. Lepis, 83 N.J. 139, 157 (1980). An increase or decrease in either the custodial or non-custodial parent's income constitutes a changed circumstance that may warrant a modification of his or her child support obligation. Id. at 151.

A party may not deliberately remain unemployed or underemployed in order to shirk his or her support obligations, and a trial judge has the discretion to impute a higher income to any individual the judge believes is doing so. Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001) (citing Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998)). Current earnings have never been viewed as "the sole criterion [upon which] to establish a party's obligation for support." Weitzman v. Weitzman, 228 N.J. Super. 346, 354 (App. Div. 1988) (internal quotation marks and citation omitted), certif. denied, 114 N.J. 505 (1989).

Rather, "a court 'has every right to appraise realistically [a parent's] potential earning power.'" Ibid. (quoting Mowery v. Mowery, 38 N.J. Super. 92, 102 (App. Div. 1955), certif. denied, 20 N.J. 307 (1956)). A party's "potential to generate income is a significant factor to consider when determining his or her ability to pay [support]." Miller v. Miller, 160 N.J. 408, 420 (1999). Prior to imputing income to a party, the court must determine whether the party is, "without just cause, voluntarily underemployed." Id. at 516. "Inherent in a finding of 'underemployment' is the notion the obligor is intentionally failing to earn that which he or she is capable of earning." Ibid.

"If the court finds that either parent is, without just cause, voluntarily underemployed . . . . [t]he court may impute income based on . . . the average earnings for the that [parent's] occupation as reported by the New Jersey Department of Labor (NJDOL)[.]" Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A 12 at 2550-51 (2013).

III.

Initially, we note that the judge did not err by determining there were changed circumstances. When the family court entered the initial child support order, plaintiff received TANF. On the return date for the motion under review, plaintiff was employed at a bakery and was no longer receiving TANF. Even though plaintiff was only earning $130.50 per week working part-time, the judge imputed income to her of $290 per week, representing full-time employment at minimum wage.

We further reject the argument that the judge should not have imputed defendant's income at $30,000, when his previous year's income tax return showed an income of $15,000. The motion judge did not err by determining that plaintiff was voluntarily underemployed. A parent cannot "choose to remain in, a position . . . [of] diminished or no earning capacity and expect to be relieved of or to be able to ignore the obligations of support to one's family." Arribi v. Arribi, 186 N.J. Super. 116, 118 (Ch. Div. 1982).

The judge found that A.S.'s basic needs such as food, clothing, and shelter must be met and that if defendant can only earn the minimum wage as an attorney, he needs to seek other employment or pursue other avenues to supplement his income. The judge rejected plaintiff's argument that the court should impute an annual income of $50,000 to defendant, based upon the average earnings for an attorney, as reported by the New Jersey Department of Labor. Instead, the judge imputed only $30,000 to defendant, in obvious recognition of the difficult economic climate and defendant's circumstances. The judge was well within her discretion to determine that a person with a college degree and law degree should be able to earn at least $30,000 per year.

Defendant further argues that plaintiff's motion to increase child support should have been denied because the court denied plaintiff's previous motion only ten months earlier in April 2011. A judge can take into account the proximity of time between the date of a motion to increase child support and the date of the previous child support order. Larbig v. Larbig, 384 N.J. Super. 17, 22 (App. Div. 2006). If there is a short time period between the motion and prior order, the judge can consider that factor in deciding whether to grant relief. Ibid. Here, the family court denied plaintiff's previous motion to increase child support because plaintiff was still receiving TANF. The circumstances changed when plaintiff secured employment and was no longer receiving TANF.

Based upon the motion record, we conclude that the Family Part acted within its discretion in granting the application to increase defendant's child support obligation. Defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.