DONNA PROVOST v. ROBERT PROVOST

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DONNA PROVOST,

Plaintiff-Respondent,

v.

ROBERT PROVOST,

Defendant-Appellant.

____________________________

March 25, 2015

Submitted February 10, 2015 Decided

Before Judges Fasciale, Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-923-99.

Rachel S. Cotrino, attorney for appellant.

Donna Provost, respondent pro se.

PER CURIAM

Defendant appeals from a March 13, 2014 order imputing his income, modifying his child support obligations for the parties' children, and compelling him to make payments for a child's college tuition and related expenses. We remand and direct the judge to more fully develop the record to determine whether defendant changed careers, and thereafter determine whether imputation of income is warranted.

I.

The parties, who divorced in 2001, had three children, M.P., born in 1993, N.P., born in 1995, and R.P., born in 1997. Plaintiff is the residential custodial parent pursuant to the dual final judgment of divorce, which contained the terms of their agreement (the "Agreement"). The Agreement provided that defendant would pay child support until emancipation, which was defined in the Agreement as "the completion of the child's formal education on a matriculated basis, whether it be graduation from a four year undergraduate school or high school . . . so long as the child is diligently pursuing formal education . . . and obtaining passing grades." The Agreement also stated that the parties would "negotiate the issues of college expenses [and tuition] according to the then prevailing statutory case law."

In July 2009, defendant lost his job as a mechanic at a Porsche dealership (the "dealership"). His tax return from 2008 reflected an annual gross income of $68,016. Defendant spent a few months looking for another job, but then opened his own auto repair shop where he purportedly earned much less. On this record, it is unclear exactly what defendant's job duties were as a mechanic at the dealership, compared to what they were at his auto repair shop.

In December 2011, defendant sought to modify his support obligation. The court found that defendant's income decreased significantly following his termination as a mechanic at the dealership. The judge further found that defendant had failed to present "competent proof of a diminished earning capacity as a mechanic or a good faith attempt at finding another mechanic's position following his termination . . . ." The judge imputed $68,016 as defendant's income, based on his 2008 tax return, finding that it was the best indicator of his earning capacity. Defendant unsuccessfully moved for reconsideration of that determination.

In 2013, plaintiff moved to compel defendant to pay for college expenses for the minor children, as well as other relief including an increase in child support. Defendant cross-moved for a reduction in his support obligations, again arguing the same change in circumstances. The application for college expenses was denied as to M.P., who was emancipated. The judge conducted a hearing to review defendant's child support obligation regarding N.P., a full-time college student, and R.P., who resided with plaintiff.

On March 13, 2014, the court rendered an oral decision upholding the imputation of income, finding that defendant had changed careers. He entered an order recalculating child support to $271 per month for N.P., requiring defendant to contribute $6200 towards N.P.'s college tuition and expenses for the 2013-2014 school year, and requiring defendant to pay fifty percent of the parents' obligation for N.P.'s second, third, and fourth year of college. The court also ordered the parties to comply with the Agreement and negotiate the college contributions for R.P., and in addition, ordered defendant to continue paying his support obligation of $177 per week for R.P. The court determined that defendant's imputed income for purposes of both child support and college contribution continued to be $68,016.

On appeal, defendant argues that the judge erred by imputing income to him because he was involuntarily unemployed, sought employment, and found an appropriate job. Defendant argues that the judge erroneously found that his actions amounted to a change in careers. Defendant also contends that the judge miscalculated his child support for R.P. and otherwise erred in determining his obligations to pay college tuition and related expenses.

Because we are remanding for the judge to more fully develop the record as to whether defendant changed careers and then determine whether income imputation is warranted, we need not reach defendant's contentions regarding college payment and child support obligations.

II.

Appellate review is particularly deferential to family courts' findings of fact because of their unique jurisdiction and expertise. Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We have previously held that to obtain a change of circumstance based on current earnings, a person

who has selected a new, less lucrative career must establish that the benefits he or she derives from the career change substantially outweigh the disadvantages to the supported spouse. Absent that showing, a judge should deny the motion [for a change in circumstance], in effect imputing prior earnings unless the obligor establishes, in the alternative, that his capacity to earn is diminished, in which case the judge should impute earnings consistent with the obligor's capacity to earn in light of the obligor's background and experience. The burden of persuasion is on the obligor.

[Storey v. Storey, 373 N.J. Super. 464, 468-69 (App. Div. 2004) (emphasis added).]

In Storey, the defendant worked as a computer hardware specialist making $111,000 a year. Id. at 475. His computer-related employment was terminated after his divorce, and rather than finding another job in the field for which he was qualified, the defendant moved to Florida to join a woman he was dating, where he had "no prospects for employment[,]" and he began work as a massage therapist making $300 a week. Ibid. The defendant had no training, experience, and "expressed no other rational reason for his interest in [massage therapy]." Id. at 476. We concluded that the trial judge's decision to impute income based on the prevailing wages for computer service technicians was appropriate.

Here, the judge found that "to some extent [defendant] did change careers. He went from a salary or hourly wage employee doing auto repairs at [the dealership] to opening his own business doing such repairs." It is unknown what the judge meant by "to some extent." He then analyzed defendant's contentions under our holding in Storey.

The judge also found, however, that defendant remained in the same line of work, and that after defendant's "termination as a mechanic . . . [defendant] start[ed] a new business in the same field[.]" The judge found that defendant's business is "Porsche repairs" in which he "services clients at various racing events where he attends these racing events to service clients' cars . . . which support[s] the fact that [defendant] is an experienced auto mechanic on Porsches."

On this record, we are unable to conclude that there is sufficient evidence to show that defendant changed careers. That is so because the record is incomplete. Defendant was a Porsche car mechanic for the dealership, then remained as a Porsche mechanic, but for his own business. Although plaintiff asserts, and defendants admits, that defendant now does other tasks such as marketing, bookkeeping, and building maintenance, the record is devoid of any indication that defendant did not perform similar tasks at the dealership.

We note that it is inconsequential and not outcome-determinative whether defendant was previously a salaried employee and is now a proprietor for the purpose of determining whether a career change occurred. It matters instead whether "he or she is working at capacity in employment consistent with [his or her] skills and experience." Storey, supra, 373 N.J. Super. at 472; accord Lynn v. Lynn, 165 N.J. Super. 328, 340-42 (App. Div. 1979) (imputing income to a doctor who left his current profession to be re-trained in a different field of medicine because this was a "change in the course of his medical career").

The record shows that at least some of defendant's current work is within the scope of his skills and experience as a Porsche mechanic. However, the record is devoid of defendant's prior work experience. As a result, the judge did not make any findings as to whether defendant is working at capacity in employment consistent with his skills and experience. On remand, should the judge find that defendant changed careers, the judge must then determine whether the benefits defendant derived from the career change substantially outweighed the disadvantages to plaintiff. Storey, supra, 373 N.J. Super. at 468. No such findings were made in this regard. See id. at 473 (applying the standard in Deegan v. Deegan, 254 N.J. Super. 350, 358 (App. Div. 1992), for determining whether a benefit to one party substantially outweighs the detriment to another).

If the judge concludes, after further developing the record, that defendant's current and prior employment involve similar skills and experience such that defendant did not change careers, the judge must then consider defendant's contention under the applicable law including under our holding in Dorfman v. Dorfman, 315 N.J. Super. 511, 516-17 (App. Div. 1998).

In Dorfman, the defendant, an accountant with an average salary of $100,000, was terminated from his accounting firm after his divorce, and subsequently accepted a $60,000 a year job as an accountant after being unable to find the same work at comparable pay. Id. at 514-17. We reversed the judge's decision to impute income of $100,000 to the defendant because we concluded that the defendant was not voluntarily underemployed, and that "[s]uch a finding is requisite, before considering imputation of income." Id. at 516. We noted that the defendant in Dorfman, upon his termination, "immediately sent out resumes, followed through with phone calls, and arranged for interviews[,]" but that his "significant salary reduction, clearly constitut[ed] changed circumstances." Id. at 517. We have defined underemployed to mean not "earning at capacity[.]" Storey, supra, 373 N.J. Super. at 474.

We note that the judge has already made preliminary findings in this regard. The judge found that

defendant testified that once he opened his business he never again looked for other work . . . to perform auto repairs.

So there have been no efforts to find work as a mechanic where he earned this higher salary of $68,000 back in 2008. And at best, he made a meager effort to find a job after he lost his employment with [the dealership].

So only a few months go by before he starts a new business, limiting the time to actually find other employment.

And based upon [his] testimony he . . . perhaps sought out [but] . . . there were no other jobs available, [but he] never really delineat[ed] what the efforts were where he applied or anything of that nature.

The judge also noted that defendant had two employees and "paid out almost double in wages of what he would net on gross receipts." The judge found that defendant "in 2011 . . . paid out over $46,000 in labor. He netted [$]24,181. [In] 2012[,] he paid, again, out $46,000 in labor, [and] netted $34,000. [In] 2013[,] [he] paid out $66,000 in labor and his net was approximately $31,000 . . . ." Finally, the judge found that defendant's case information statement does not reflect the amount of debt related to his business that one would expect if defendant's financial situation is as he depicted, suggesting that defendant is not being fully transparent in his financial disclosures. If the judge reaches a Dorfman analysis, the judge must determine whether defendant is voluntarily underemployed.

Reversed and remanded for further proceedings consistent with this opinion. We leave to the discretion of the judge how to conduct the remand proceedings. After the judge determines whether to impute income to defendant, the judge should then determine defendant's obligations to pay child support and contribute to college tuition and expenses. We do not retain jurisdiction.