DEBORAH R. TROYER v. THOMAS J. TROYER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3712-05T23712-05T2

DEBORAH R. TROYER,

Plaintiff-Respondent,

v.

THOMAS J. TROYER,

Defendant-Appellant.

________________________________________

 

Submitted February 6, 2007 - Decided March 21, 2007

Before Judges Lisa and Grall.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Hudson County, FM-09-2908-02.

Libero D. Marotta, attorney for

appellant.

John H. Anlian, attorney for respondent.

PER CURIAM

Defendant Thomas J. Troyer appeals from an order amending a final judgment of divorce. That order was entered on remand from this court. Troyer v. Troyer, No. A-3470-03 (App. Div. Apr. 15, 2005). We directed the trial court to reconsider defendant's obligation to pay alimony to his former wife, plaintiff Deborah R. Troyer. Id. at 7-8. The judge took additional testimony and entered a modified support order that is supported by the record and neither arbitrary nor capricious. Accordingly, we affirm.

The parties were married on July 14, 1992. Id. at 2. They have three children. Ibid. The oldest child was born on June 9, 1993, and the youngest child was born on January 20, 1999. Ibid. Prior to the birth of the parties' first child, plaintiff, who is a high school graduate, worked as a beautician and then as an accounts payable clerk. Ibid. After the birth of the youngest child, plaintiff worked two evenings per week as a telemarketer for about six months. Ibid. Throughout the marriage, defendant was employed by the United States Postal Service and frequently worked overtime. Ibid. He earned $66,153 in 2000, $62,750 in 2001 and $47,307 in 2002. Id. at 4. He explained that his parenting time did not permit him the flexibility he needed to work overtime as demanded by the Postal Service. Ibid.

After a trial on equitable distribution and support, the court granted plaintiff rehabilitative alimony in the amount of $450 per week for twelve months and limited duration alimony in the amount of $375 for ten years. Id. at 5. Child support was set at $158 per week for twelve months and $145 per week thereafter. Ibid. Defendant appealed and challenged the alimony award. Stating that a support "award cannot be so unbalanced as to leave the supporting spouse nearly destitute," we remanded, noting that defendant should not be forced to live in his parents' home and should be able to have his own residence, and that we were unable to conclude that the award was fair and equitable. Id. at 7.

The following relevant facts were developed at a hearing on remand. Defendant's normal hours of work are from 7:30 a.m. until 3:30 p.m. The Postal Service offers three types of overtime: off-day overtime; early morning overtime, which begins at either 3:00 a.m. or 5:00 a.m., depending upon the needs of the Postal Service; and evening overtime, which commences after the normal shift. An employee interested in working overtime must sign up for the type of overtime he or she is willing to work on a quarterly basis. In the absence of an extreme emergency, when an employee who has volunteered is assigned overtime, the employee is subject to discipline for refusing to work. According to plaintiff, prior to her filing for divorce defendant worked overtime all of the time, usually on his day off or in the evening but sometimes in the morning.

Defendant has parenting time on alternate weekends from Friday through Sunday, which precludes weekend overtime. Because his eyesight prevents him from driving in the dark, he cannot work overtime at night. He is unable to work overtime in the morning because the hours are "too much" for him.

In 2005 defendant earned $43,000.49. His base salary for 2006 was $44,736.

At the time of the divorce trial, plaintiff indicated that she intended to take courses to learn medical billing and develop her computer skills. She did not take a course. She accepted employment with a bank earning $17,750 per year, approximately $8.50 per hour. She did not take a second job as a beautician or in another field because she could not do so and meet the needs of her children.

The judge discredited defendant's testimony about his inability to work overtime during either the morning or evening shift. On that ground, the judge imputed to defendant earnings equivalent to the average of his earnings for the years 2000, 2001 and 2002, which is $58,576 per year.

The judge found that despite ample opportunity and funds, plaintiff failed to take a course that would have permitted her to earn $12.00 per hour. On that ground the judge terminated rehabilitative alimony. Finding plaintiff's explanation for her decision to work only one job to be reasonable given the age of the children, the judge declined to impute additional income to her.

The judge considered this court's determination that the support awarded at the time of the divorce was inequitable. Consistent with defendant's testimony and the case information statement he submitted on remand, the judge found that he continued to live in his parents' home, had expressed no interest in moving and would have expenses amounting to a total of $1200 per month if he purchased a car.

The judge reduced alimony to $120 per week and, after recalculating child support in accordance with the guidelines, fixed child support in the amount of $240 per week. Thus, defendant's weekly support obligation was reduced from $520 per week to $360 per week. The judge considered the overall effect of the award. She determined that defendant would have pre-tax income of approximately $39,555 after payment of alimony and child support, and that plaintiff would have approximately pre-tax income of $36,470 to meet her needs and those of the children.

On appeal defendant argues that the alimony and child support order should be reversed. He contends that the judge erred in imputing income to him and did not give proper consideration to this court's decision. The argument lacks sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). Plaintiff argues that the alimony award is too low, but she did not file a cross-appeal. Her claims are not properly before us, and they lack merit as well.

A trial court's rulings on an application to modify alimony, including the decision to impute income, are discretionary rulings, which we will not overturn unless the court abused its discretion, failed to consider controlling legal principles or made findings that are inconsistent with or unsupported by competent evidence. See Storey v. Storey, 373 N.J. Super. 464, 479 (App. Div. 2004); Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996). We give substantial weight to determinations that are based upon the credibility of witnesses that the judge has had an opportunity to observe. Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993).

At the hearing on remand, the parties presented evidence that was not adduced at the time of trial or before this court on direct appeal. The judge had an opportunity to assess anew defendant's explanations for his decision to decline overtime in light of the new schedule for parenting time, his expenses and plans for the future and the plaintiff's explanations for her failure to take advantage of the opportunity afforded to her by the award of rehabilitative alimony. The judge's factual findings based upon that evidence are supported by the record and not inconsistent with this court's remand or controlling legal principles. We see no basis for disturbing the order entered.

Affirmed.

 

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A-3712-05T2

March 21, 2007