CHRISTOPHER BARNES v. GERALDINE BARNES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5834-11T1

CHRISTOPHER BARNES,

Plaintiff-Appellant,

v.

GERALDINE BARNES, n/k/a

GERALDINE PRODELL,

Defendant-Respondent.

__________________________

October 21, 2013

Submitted October 9, 2013 Decided

Before Judges Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County,Docket No.FM-08-0796-03.

Staci L. Spinosi, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Plaintiff appeals from an April 30, 2012 order decreasing his alimony obligation, and a June 15, 2012 order denying reconsideration. We affirm.

The parties were married for approximately sixteen years and had no children together. In 2004, they obtained a judgment of divorce and the court ordered plaintiff to pay defendant $120 per week permanent alimony. In 2010, plaintiff filed a motion to terminate his alimony obligation contending that he was disabled and could no longer work. The judge denied that motion, plaintiff appealed, and we reversed. Barnes v. Barnes, No. A-2021-10 (App. Div. Mar. 9, 2012). We directed the judge to determine if plaintiff had established a prima facie case of changed circumstances, and then if so, to resolve whether to terminate or modify his alimony obligations. Id. (slip op. at 4).

In April 2012, the judge conducted a lengthy hearing at which plaintiff, his counsel, and pro se defendant appeared. On April 30, 2012, the judge rendered an extensive oral opinion granting plaintiff's motion and reducing his alimony obligation to $90 per week. The judge found the parties credible and concluded that changed circumstances existed. He rejected defendant's contention that she was unable to work because of a disability and then imputed income to her. This appeal followed.

On appeal, plaintiff argues that the judge erred by imputing an insufficient amount of income to defendant. He contends that had the judge imputed more income to defendant, then his alimony obligation would have ended. Plaintiff also asserts that the judge did not properly consider defendant's ability to work.

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). 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 findings 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. (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)).

A trial judge has the discretion to impute income, but only after first finding that a party is voluntarily unemployed or underemployed. Caplan v. Caplan, 182 N.J. 250, 268 (2005); Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001); 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. Here, the judge determined that defendant was unemployed voluntarily, and conducted the difficult task of identifying an amount of income to impute to defendant.

"Imputation 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 v. Storey, 373 N.J. Super. 464, 474 (App. Div. 2004). An alimony award should "take into consideration the real facts and circumstances of each party's financial situation including actual income, expenses, support from other sources and potential earning capacity." Connor v. Connor, 254 N.J. Super. 591, 604 (App. Div. 1992). On appeal, a trial judge's imputation of a specific amount of income "will not be overturned unless the underlying findings are inconsistent with or unsupported by competent evidence." Storey, supra, 373 N.J. Super. at 474-75. There are no bright-line rules that govern the imputation of income. Id. at 474; see also Caplan, supra, 182 N.J. at 270. Against these standards, we see no abuse of discretion.

Using the case information statements provided by the parties, the judge found that plaintiff is receiving monthly social security disability benefits in the amount of $1893. The judge rejected defendant's contention that she was disabled and unable to work, and then painstakingly and carefully reviewed the parties' financial situation including actual income, expenses, support from other sources, and potential earning capacity. The judge then imputed to defendant $15,600 annual income, or $1300 per month, and lowered plaintiff's alimony obligation by $30 per week.

After careful consideration of the record, we are satisfied that plaintiff's remaining arguments lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.