TARA MARINO v. JAMES MARINO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

TARA MARINO,

Plaintiff-Respondent,

v.

JAMES MARINO,

Defendant-Appellant.

__________________________________________

May 9, 2016

Argued February 22, 2016 Decided

Before Judges O'Connor and Suter.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-300-08.

Angela C. Paternostro-Pfister argued the cause for appellant (Morris, Downing & Sherred, L.L.P., attorneys; Ms. Paternostro-Pfister, on the brief).

Tara Marino, respondent pro se.

PER CURIAM

Defendant James Marino (father) appeals a May 23, 2014 order directing he pay $134 per week in child support to plaintiff Tara Marino (mother), as well as an August 22, 2014 order denying his motion for reconsideration of the May 23, 2014 order. After reviewing the record and applicable legal principles, we reverse and remand for further proceedings.

I

The parties were married on September 7, 1996 and divorced on April 29, 2009. The parties have one child, presently seventeen years of age. Incorporated into the judgment of divorce is the parties' property settlement agreement, which, among other things, designated the mother as the primary caretaker and provided that the father pay the mother $100 per week in child support.

On August 16, 2010, the court granted the mother's motion to relocate the parties' child to Delaware. During the relocation hearing, the mother represented to the court that two of the reasons she wanted to move were that her fiancé resided in Delaware and that she had landed a position that was to pay her more than the $43,992 per year she was earning in New Jersey.1

Because of the change in circumstances, on September 16, 2011 the court entered an order directing, among other things, the parties to file and exchange copies of their three most recent paystubs, income tax returns, and W-2 forms so that child support could be recalculated. The mother was also ordered to provide "information concerning" her fiancé's income, as she and her fiancé had a child after the parties divorced. The order also indicated that, after the exchange of financial information, the parties were to appear before a child support hearing officer for the recalculation of child support. Significantly, any change in child support was to be retroactive to June 24, 2011.

The mother did not provide the father with the subject financial information and, in July 2013, he filed a motion to compel the mother to immediately turn over this information, as well as her 2011 and 2012 income tax returns. He also requested he be credited for any overpayments of child support retroactive to June 24, 2011.

It is unclear what the mother provided to the court, but she did produce some financial information as a result of the father filing the motion. According to the tax returns she produced, in 2010 her adjusted gross income was $29,024. In 2011 she earned only $3,186, all of which was unemployment compensation, and did not file a tax return. In 2012 her gross income was $9,336, $6,681 of which was unemployment compensation. She did not earn any income or file any tax returns in 2013. In 2014, she was unemployed through at least May 2014. Because she did not work in 2011, 2013, and during the first five months of 2014, she did not have any paystubs or W-2 forms to produce from these time periods.

On the return date of the motion, the court heard brief testimony from the parties on the issue of child support, but the testimony was either cumulative to what had been provided in the parties' certifications or was immaterial. On May 23, 2014,2the court entered an order directing the father to pay $134 per week in child support, retroactive to June 24, 2011. The order states child support was calculated by "utilizing an imputed income of $9,336 [per year] for [the mother]." The statement of reasons attached to the order does not explain why the court imputed to the mother her 2012 gross income. A child support guidelines worksheet annexed to the order reveals the other-dependent deduction was not factored into the child support equation.

The father filed a motion for reconsideration of the May 23, 2014 order. He argued the court erred by imputing to the mother only $9,336 per year in income when she had earned $43,992 per year at the time of the parties' divorce; that earning $9,336 per year was below the minimum wage;3and that the mother had not offered any explanation why she was not working or indicate she was incapable of earning at least $43,992 per year. Finally, he pointed out the mother had failed to produce any income information about her fiancé so that the alternate dependent deduction could be factored into the child support equation.

The mother did not refute the father's assertions in her response to his motion for reconsideration. In her brief on appeal, the mother stated she did not provide her fiancé's financial information because she believed under Rule5:5-2(f) such information was confidential and need not be revealed.4

The Court's Order of May 23, 2014, took into consideration the financial status of the Parties. The Court read the submissions of the Parties, as well as heard oral testimony. Child support of $134/week was calculated utilizing an imputed income of $9,336.00 for Plaintiff and an income of $39,285 was attributed to Defendant. The Court has properly considered the matter and concluded that the income imputed to Plaintiff is satisfactory and the child support calculation derived from that income is appropriate.

II

On appeal, the father's principal contentions are that the court erred when it imputed only $9,336 per year to the mother for the purpose of calculating child support, and failed to compel the mother to produce her fiancé's financial information.

Our "review of a trial court's fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). We will not disturb the trial court's findings unless they lack support in the record or are inconsistent with the substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J.474, 483-84 (1974). However, we owe no special deference to the trial court's conclusions of law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

"Imputation of income is a discretionary matter not capable of precise or exact determination[,] but rather requir[es] a trial judge to realistically appraise capacity to earn and job availability." Elrom v. Elrom, 439 N.J. Super. 424, 434 (App. Div. 2015) (citations omitted). If a parent is voluntarily unemployed or underemployed without just cause, the court is required to impute income. Caplan v. Caplan, 182 N.J.250, 265 (2005) (citation omitted); seealso Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R.5:6A at www.gannlaw.com (2016).

Specifically, when a parent is voluntarily underemployed or unemployed without good cause, the court must

a. impute income based on potential employment and earning capacity using the parent's work history, occupational qualifications, educational background, and prevailing job opportunities in the region. The court may impute income based on the parents' former income at that person's usual or former occupation or the average earnings for that occupation as reported by the New Jersey Department of Labor (NJDOL);

b. if potential earnings cannot be determined, impute income based on the parent's most recent wage or benefit record (a minimum of two calendar quarters) on file with the NJDOL (note: NJDOL records include wage and benefit income only and, thus, may differ from the parent's actual income); or

c. if a NJDOL wage or benefit record is not available, impute income based on the full-time employment (40 hours) at the New Jersey minimum wage ($8.25 per hour).

[Child Support Guidelines, supra, Guideline 12, www.gannlaw.com.]

Here, the imputation of income to the mother, who proffered no explanation why she was not working and earning at least $43,992 per year, was the appropriate remedy. There was no other conclusion to draw from the evidence but that the mother was unemployed without good cause. However, we are unable to fathom why the trial court found the imputation of only $9,336 per year to the mother acceptable in light of the facts and above-cited legal principles. Simply stated, the trial court's decision lacks support in the record. Based upon the mother's work history, the court was required to impute income to her in an amount founded upon the standards set forth above. Seeibid. Even if the record were devoid of evidence about the mother's earnings history, because she was capable of working, at the least the minimum wage should have been imputed to her.

As the amount of income imputed to the mother was erroneous as a matter of law and the alternate dependent deduction was not determined when the court calculated child support, we reverse that provision of the August 22, 2014 order that denied the father's motion for reconsideration of the May 23, 2014 order and vacate that provision in the latter order that compelled the father to pay child support in the amount of $134 per week.

We remand this matter for the trial court to hold a hearing within sixty days to determine, consistent with this opinion, the appropriate amount of child support the father is to pay, retroactive to June 24, 2011. In light of the passage of time, the court shall hold a case management conference within ten days to determine the discovery the parties shall exchange, on an accelerated basis, to enable the court to make its determination. That discovery shall include, but not be limited to, the mother producing the fiancé's financial information since September 16, 2011.

At the hearing the court shall consider what the father should have been paying from June 24, 2011 to the present, taking into consideration not only any changes in the father's income since June 24, 2011, but also the appropriate amount of income that must be imputed to the mother from June 24, 2011 to May 23, 2014, as well as after May 23, 2014 to the present if she has remained unemployed or underemployed, and the fiancé's income since June 24, 2011. We leave to the trial court's discretion what sanctions shall be imposed if a party does not timely produce all discovery that is ordered.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 The record does not disclose the salary she was to earn in her new job in Delaware.

2 The record does not disclose the reason the father's motion was not decided until May 23, 2014, but the record does indicate the parties and the court were plagued with other matters to resolve, which predominately concerned parenting time.

3 When the father filed his motion for reconsideration in June 2014, the minimum wage in Delaware was $7.75 per hour or $16,120 per year. Del. Code Ann. tit. 19, 902 (2013).

4 Rule 5:5-2(f) states that a "Family Case Information Statement and all attachments thereto shall be confidential and unavailable for public inspection, pursuant to R. 1:38-3(d)(1)." We do note, however, that this Rule does not preclude us from disclosing the financial information we address in this opinion.