MELISSA SPIELBERGER BECK v. CURT P. BECK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3972-03T53972-03T5

MELISSA SPIELBERGER BECK,

Plaintiff-Respondent,

v.

CURT P. BECK,

Defendant-Appellant.

___________________________________

 

Argued September 21, 2005 - Decided

Before Judges Grall and Levy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-2283-95.

Ravinder S. Bhalla argued the cause for appellant.

Nirmalan Nagulendran argued the cause for respondent (Miller, Meyerson, Schwartz & Corbo, attorneys; Mr. Nagulendran, on the brief).

PER CURIAM

Defendant Curt P. Beck appeals from a February 9, 2004 Family Part order establishing child support at $450 per week and denying his cross-motion for a plenary hearing on the issue.

Defendant and plaintiff, Melissa Spielberger Beck, were married on October 22, 1988, had one child, Curt Werner Beck II, born on December 4, 1991, and separated on April 26, 1995. Plaintiff filed a complaint for divorce on May 5, 1995.

The parties reached agreement on custody and parenting time that provided for joint legal custody of the child, with plaintiff having primary residential custody. The agreement, which also established a visitation schedule, was memorialized in a consent order on February 23, 1996. The understanding was later incorporated into a property settlement agreement as part of a dual judgment of divorce entered on October 31, 1996. On that date, the parties also placed on the record an agreement that established alimony and child support to be paid by defendant for the next seven years, beginning November 1, 1996. They also agreed that, at the conclusion of the seven years, the amounts would be recalculated by the court in accordance with N.J.S.A. 2A:34-23.

The agreement required that, for the first three years, defendant pay $1,200 per month for child support, $300 per month for child care expenses and $800 per month in alimony. After three years, the alimony payment would be reduced in two stages, first to $600 per month and later to $400 per month. However, it was also agreed that, if the child did not require child care in the seventh year, alimony for that year would be $700 per month. In any event, child support was to remain constant at $1200 per month for the entire seven years.

Near the end of the seven years, on October 27, 2003, plaintiff filed a motion to recalculate child support. On November 20, 2003, defendant, an attorney, filed pro se opposition to plaintiff's motion and a cross-motion seeking sundry relief related to plaintiff's alleged failure to abide by previous court orders. In an attached certification, defendant stated, in part:

From April 2001, to August 7, 2003 Defendant was employed as a securities litigator at Abbey Gardy LLP, in New York, New York. Since August 7, 2003 he has been unemployed. Defendant is currently seeking employment.

Defendant has no current income and has had no income since August 7, 2003. Since August 7, 2001 Defendant has been living off savings and by his borrowing capacity - both are now exhausted.

Defendant also contended that plaintiff had no need for additional child support, that her case information statement ("CIS") was "incomplete" and "demonstrably false" and that her last complete CIS in 2001 showed assets of "well over $300,000," most of which were "in highly liquid mutual fund accounts."

Following a hearing on December 12, 2003, the court entered an order setting defendant's child support payment at $500 per week. The order also required plaintiff to provide the court with proof that she was enrolled in alcohol-abuse counseling and to file an amended 2002 tax return and a completed CIS. The order allowed defendant to file responsive certifications, and both parties were ordered to return to court on January 16, 2004.

On January 14, 2004, defendant filed another "cross-motion" requesting a plenary hearing. In support of that cross-motion, defendant filed another certification to which he attached printouts from several Internet sources that he maintained demonstrated that "the average salary of trial lawyers with [his] level of experience (but without any disability) ranges from a low of $78,000 to a high of $127,000." He also attached copies of labels from medicine containers which he certified demonstrated that "for over six months [he was] medicated with the following: (1) Paroxetine (Paxil), (2) Strattera, (3) Ambien, (4) Tempazepam (Restoril), (5) Endodan (Percodan) (6) Hydrocodone (Vicodin), and (7) Meperidine (Demerol)." In his brief, defendant asserts that he suffers from clinical depression and, as a result, is unable to make the same child support payments that he made when his salary was $229,000 annually.

In further support of that position, defendant attached a copy of a May 30, 1996 letter addressed "To Whom It May Concern" in which Dr. Larry Kirstein stated that defendant had been referred to him suffering from a severe depressive episode requiring both medication and psychotherapy and that defendant had attempted suicide by shooting himself in the chest in 1978 or 1979. The letter described defendant's symptoms and medications and stated that, although defendant would like to return to his career, he was "too unstable and symptomatic to function at the level required by a law firm of Weil, Gotshal's caliber."

Defendant also attached several certifications. Thomas L. Dyal, Jr. certified that, in January 2004, defendant borrowed $10,000 from him. Dyal further stated he was aware "that [defendant's] wife was first hounding him and then suing him for money . . . ."

Una Elias, an employee of a court-reporting service who stated that she had been "involved in providing various services, including court reporting service, employment and staffing services to members of the legal profession in New York City and throughout the Unites States for over seven years," certified:

[D]ue to a number of factors, including the weak economic market and a surfeit of lawyers seeking jobs, as well as the firm he was just recently associated with, the hiring prospects for a litigator such as [defendant] are very bleak. In my professional opinion, it is unreasonable to expect that [defendant] will be able to find employment in the legal field at anything near his last past salary of $229,000 per annum in the current market.

In my professional opinion, it is reasonable to expect [defendant] to find temporary or permanent employment in the current job market in the metropolitan area, given his skill level and seniority, that provides compensation in the $110,000 to $125,000 range (the "reasonable compensation parameters").

It is reasonable to expect that, provided the compensation sought by [defendant] is kept to within the reasonable compensation parameters, [defendant] could expect to be fully employed in the legal field within as little as two to three months if the position is a temporary position and within six to eight months if the position is a full time one. The further [defendant's] compensation needs exceed these reasonable compensation parameters the longer the amount of time it will take for [defendant] to find employment.

Leia Marley filed a certification stating that she had known defendant for more than six years, alleging harassment by plaintiff, praising defendant as a terrific father and educator, and, in anticipation of a claim by plaintiff that defendant had taken her to the Bahamas, claiming that she, in fact, had taken defendant. She also said she noticed defendant's symptoms reappear.

On February 6, 2004, the court denied defendant's motion for a plenary hearing, but reduced his child support payment to $450 per week. An order memorializing that decision was entered on February 9, 2004. Defendant filed this appeal on February 27, 2004.

In reaching the decision to deny a plenary hearing and reduce support, the court accepted that defendant had valid reasons for deciding to leave his employment. However, the judge also found that there was no evidence of any attempts made to find another job. The court noted that the certifications submitted by defendant were not from people who had relevant expertise, at least none that was apparent from the certifications. Furthermore, the court stated: "[Y]ou haven't shown me, by way of letters, by way of listings, by way of employment recruitment, by way of opportunities, positions that you've applied for and interviewed for, what your record is as far as gaining employment." The court further found that neither the medication information nor the 1996 letter from Dr. Kirstein submitted by defendant provided any reasonable basis for concluding that defendant was disabled and, therefore, unable to be re-employed in a position commensurate to that which he left. The court stated: "You haven't given me a doctor's report that says you have any disability. You're showing me seven different medications, two of which have expired, three of which are for pain. What you're telling me [is that] your disability [is not] pain related. It has to do with depression." The court questioned why defendant had not provided a more current report than Dr. Kirstein's 1996 letter. Although defendant replied that it would have been "enormously expensive," moments later he argued that he wanted to bring Dr. Kirstein in to testify.

The court found that defendant had presented no information that created a genuine issue of material fact that would require a hearing. Given that determination, the court concluded that, in the absence of re-employment at a salary that would be appropriate for use in calculating child support, defendant's salary for the previous year would have to be used.

Giving defendant credit for parenting time based upon his representation of the amount of time he would have his child for visitation in the future, the court concluded that defendant would have his child thirty percent of the time. On that basis, his weekly support obligation was reduced from $500 to $450.

On appeal, defendant argues that the court incorrectly imputed to him his former salary of $229,000 and, in addition, incorrectly used a "sole parenting worksheet" to calculate child support. We find no fault with the trial court's findings or conclusions and, therefore, affirm.

Where "there is nothing in the record . . . to indicate that the defendant is incapacitated or otherwise incapable of working or that his unemployment is other than temporary," there is no abuse of discretion in dismissing an application for a modification of support. Bonanno v. Bonanno, 4 N.J. 268, 275 (1950). In this case, those were precisely the court's findings with respect to defendant. After carefully reviewing defendant's evidence in support of his claim that a disability prevented him from obtaining employment comparable to the job he left, including the 1996 letter from his doctor, his list of medications and several certifications, and after considering the relevance of that evidence and the qualifications of those who certified to opinions, Judge Maureen P. Sogluizzo concluded that defendant failed to show anything tending to establish his claim. We find no basis for disturbing her conclusion. "A party asserting inability to work due to disability bears the burden of proving the disability. Ordinarily, then, that party must produce evidence to carry that burden." Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001). Furthermore, given the total absence of timely, relevant and credible evidence that might establish defendant's position, Judge Sogluizzo also correctly concluded that there was no genuine issue of material fact requiring resolution at a plenary hearing. We conclude that the findings and conclusions of Judge Sogluizzo are supported by substantial, credible evidence in the record. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). Therefore, there was no need for a plenary hearing. See Lepis v. Lepis, 83 N.J. 139, 157 (1980).

In addition, we find no abuse of discretion in Judge Sogluizzo's determination to impute income to defendant.

Both the [Child Support Guidelines] and the case law of this State explicitly permit the imputation of income where earnings cannot be determined. Pressler, Current N.J. Court Rules, Appendix IX-A, "Considerations In Use of Child Support Guidelines," subpart 12 (2002); Bencivenga v. Bencivenga, 254 N.J. Super. 328, 331-32, 603 A.2d 531 (App. Div. 1992); Mowery v. Mowery, 38 N.J. Super. 92, 102, 118 A.2d 49 (App. Div. 1955), certif. denied, 20 N.J. 307, 119 A.2d 791 (1956).

[Tash v. Tash, 353 N.J. Super. 94, 99 (App. Div. 2002).]

Likewise, we find no abuse of discretion in the judge's decision to impute income at defendant's prior salary level. "A trial judge's decision to impute income of a specified amount will not be overturned unless the underlying findings are inconsistent with or unsupported by competent evidence." Storey v. Storey, 373 N.J. Super. 464, 474-75 (App. Div. 2004) (citations omitted). Here the record amply supports the judge's findings that defendant had quit his job and failed to prove he was incapable of finding comparable employment. The decision to impute income at defendant's prior salary level was, therefore, supported by competent evidence.

Finally, we reject defendant's argument that the court erred in failing to use the Shared-Parenting Worksheet to calculate support. The use of the Shared-Parenting Worksheet is not automatic. Its use is discretionary and is designed for situations in which expenses for the child are duplicated or shifted based upon the amount of time each parent spends with the child. Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2313 (2005). In this case, defendant failed to request the use of the Shared-Parenting Worksheet. Moreover, the judge, nevertheless, accepted defendant's representation of the time he would be spending with his child in the future, and, on that basis, reduced his child support obligation by $50 per week. We find no error or abuse of discretion in the judge's determination.

 
Affirmed.

(continued)

(continued)

11

A-3972-03T5

November 29, 2005