JENNIFER A. PUGMIRE v. THOMAS E. PUGMIRE

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0641-04T20641-04T2

JENNIFER A. PUGMIRE,

Plaintiff-Respondent,

v.

THOMAS E. PUGMIRE,

Defendant-Appellant.

_______________________________________________________________

 

Submitted September 27, 2005 - Decided

Before Judges Hoens, R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, FM-11-1176-99B.

Christopher R. Barbrack, attorney for appellant.

McLaughlin & Cooper, attorneys for respondent (Albert Cooper, of counsel; Leanne Pike Treese, on the brief.)

PER CURIAM

Defendant Thomas Pugmire appeals from an August 31, 2004 order of the Family Part, Mercer County, denying defendant's motion for reduction of child support and to enforce litigant's rights by requiring plaintiff Jennifer Pugmire to apply for health insurance coverage for the children of the marriage.

On this appeal, defendant argues that the trial court erred by (1) including certain income tax deductions in his gross income while failing to impute income to plaintiff; (2) failing to hold a plenary hearing; and (3) not enforcing the court's own order requiring plaintiff to procure health insurance for the children. We disagree and affirm as to points one and two. Point three has been rendered moot. Plaintiff and her children are now covered by insurance through her employment, the expense of which is borne completely by her.

Plaintiff and defendant were married on June 21, 1986. The marriage produced three children: Cassandra, Thomas and Ellie. The parties entered into a property settlement agreement (PSA), which was incorporated into the final judgment of divorce on December 23, 1999. The child support provision of the PSA stated:

7. HUSBAND agrees to pay WIFE, for the support of the children born of the marriage, commencing on December 1, 1999 and continuing through November 30, 2003, the sum of FOUR HUNDRED EIGHTY DOLLARS ($480.00) per week. Support for each child shall cease upon the earliest of the following dates:

(A) The date the child is emancipated;

(B) The date the child dies; or

(C) The date the HUSBAND dies.

Said amount shall be renegotiated prior to November 30, 2003, so that effective December 1, 2003, child support shall be based upon the income of both parties as of December 1, 2003. Neither party will seek to modify the support prior to December 1, 2003, provided that WIFE remains a full-time student and is not employed on a full-time basis.

Defendant sought a reduction in his child support obligations based on plaintiff's graduation from nursing school with an anticipated August 1, 2003 start date of her new job, and his own declining economic position. Defendant asserts that a change of circumstances has occurred based on his purported decrease in income and plaintiff's ability to earn income due to her completion of the nursing program. The trial court denied defendant's motion for a reduction of child support.

"When the movant is seeking modification of child support, the guiding principle is the 'best interests of children.'" Lepis v. Lepis, 83 N.J. 139, 157 (1980). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).

The Child Support Guidelines provide:

a. If income from any source is sporadic or fluctuates from year-to-year (e.g. seasonal work, dividends, bonuses, royalties, commissions), the amount of sporadic income to be included as gross income shall be determined by averaging the amount of income over the previous 36 months or from the first occurrence of its receipt whichever time is less.

[Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-B to R. 5:6A at 2327 (2006).]

Here, defendant's income is comprised of commissions. He stated at the January 16, 2004 motion argument: "The truth of the matter is, yes, I'm a commissioned employee and sometimes commissions are bigger and sometimes they're less." Therefore, the trial court did not err in determining that defendant's income was sporadic.

The Child Support Guidelines provide specific instructions for income derived from self-employment or operation of a business as follows:

b. Income and expenses from self-employment or the operation of a business should be carefully reviewed to determine gross income that is available to the parent to pay a child support obligation. In most cases, this amount will differ from the determination of business income for tax purposes.

c. Specifically excluded from ordinary and necessary expenses, for the purposes of these guidelines, are expenses allowed by the IRS for:

***

(11) any other business expenses that the court finds to be inappropriate for determining gross income for child support purposes.

[Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-B to R. 5:6A at 2327 (2006) (emphasis added).]

Here, the court, within its discretion, determined that the substantial legal and professional expenses deducted by defendant on his Schedule C should be excluded from ordinary and necessary expenses. Defendant deducted $202,734 in 2000, $173,496 in 2001 and $41,506 as a result of carryovers from the prior two years. Those deductions were added back into defendant's income resulting in the trial court concluding that defendant earned more at the time of his application for reduction than he did when the child support was initially set. The court averaged thirty-six months of defendant's gross income, 2000, 2001 and 2002, which resulted in an average gross income of $150,547, well above the $70,000 per year upon which the child support obligations were originally calculated. The trial court disregarded the 2003 tax return because it was incomplete, defendant's W-2 was not attached, and a schedule C was not annexed.

Defendant did not provide any evidence as to what the funds deducted were used for, nor did he provide any explanation with regard to the deductions. Moreover, as to the current appeal, defendant has still not clarified the nature of those expenses. Defendant was on notice that the Child Support Guidelines required the trial court to examine such deductions thoroughly. Defendant had an obligation to demonstrate the appropriateness of those deductions and his failure to do so justified a return of those expenses to gross income. At the very least, defendant should have done more than simply assert that he has incurred expenses, which, on their face, are unreasonable.

The Child Support Guidelines permit imputation of income "[i]f the court finds that either parent is, without just cause, voluntarily underemployed or unemployed." In her November 26, 2003 certification, plaintiff stated:

In paragraph 16 of my certification dated August 27, 2003 I acknowledged that I had graduated from nursing school and on August 4th had begun a four month mandatory nurse resident program at University Medical Center of Princeton. This program involved working full time; however, as I pointed out, I was uncertain of how many hours I would be able to work or would be available for me.

4. Working full time while in the nurse residency program has been difficult for the children, specifically for Thomas and Ellie. I had to leave home at approximately 6:15 A.M. and didn't return home until approximately 4:15 P.M.

Our son's grades have dropped this quarter in part because I have not been able to help him with school work as much as I used to before I started the nurse resident program. Our daughter Ellie, who just turned nine, has had a much harder time while I was in the nurse resident program. Specifically, she cries in the morning when I leave for work and she takes my nightgown in her backpack to school everyday. I have had conferences with her teacher several times because of missed homework which is something that had never been a problem in he past.

During this probationary period my work days are generally ten hours long from the time I leave in the morning until the time I get home which doesn't leave much time to do anything other than make dinner, get the kids showered and into bed and get to bed myself. As a consequence of this schedule I am exhausted and cranky most of the time and the children feel the effect of this.

5. I want to work in the oncology unit and the only position available on that floor is part time for 16 hours per week. I will be working 2 evenings a week from 11: 00 P.M. to 7 A.M. and I will be paid $25.81 an hour or I will gross $412.96. Accordingly, on a yearly basis I will have income of approximately $21,474.

Not only will this schedule afford me the ability to spend substantial time with the children, but it will obviate the need for work related day care. Furthermore, this work schedule includes both health insurance as well as dental coverage for our children.

The trial court concluded the reasons for plaintiff working part time constitutes just cause not to impute income. We agree.

"[A] plenary hearing [is not required] in every contested proceeding for the modification of the terms of a judgment or order relating to alimony or support." Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976). The trial court has the ability to "hear and decide motions or orders to show cause exclusively upon affidavits." Ibid. See R. 1:6-1, R. 1:6-6 and R. 4:67-5. Defendant had a chance to divulge his deductions at the motion hearing but did not. A plenary hearing would only have given him a second chance to explain the suspicious deductions.

 
Affirmed.

(continued)

(continued)

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A-0641-04T2

December 13, 2005