NASI CECA v. ARIJETA CECA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6180-05T56180-05T5

NASI CECA,

Plaintiff-Appellant,

v.

ARIJETA CECA,

Defendant-Respondent.

________________________________

 

Submitted March 27, 2007 - Decided June 19, 2007

Before Judges Payne and Lihotz.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-98-06.

O'Donnell & Dumbroff, attorneys for appellant (David H. Dumbroff, on the brief).

Respondent filed no brief.

PER CURIAM

Plaintiff appeals from certain provisions of a final judgment of divorce (FJOD), which imputed income attributed to him to determine his obligation to pay limited duration alimony to defendant. We affirm the trial court's determination of imputed income, however, as stated below, we are constrained to reverse the trial court's determination of the amount and duration of alimony, and we remand for additional factfinding.

The facts relevant to the issues raised in plaintiff's appeal are taken from the trial record before the Family Part. Plaintiff, Nasi Ceca, now age thirty, and defendant, Arijeta Ceca, now age twenty-seven, were married on April 25, 1999. The parties have two children: one who is now seven, and the other who is now five. Plaintiff has a minor child from a prior relationship, who does not reside with him. In April or May 2005, the parties separated; defendant and the children remained in the former marital home and plaintiff moved to his parents' home. A final restraining order (FRO) issued under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, was entered on May 5, 2005, in Arijeta Ceva v. Nasi Ceca, Docket No. FV-19-486-05.

Plaintiff filed a complaint for divorce based on extreme cruelty on August 25, 2005. Defendant filed a counterclaim for divorce also based on extreme cruelty on September 15, 2005. Trial was held on June 27 and June 28, 2006. The parties were the only witnesses. The trial judge issued an oral opinion at the conclusion of the evidence, and entered the FJOD on June 28, 2006. A written supplemental FJOD was filed on July 19, 2006.

During the marriage, plaintiff's principal employment was with Chilton Memorial Hospital where he worked as a fireman/ mechanic. His pay stub, dated June 10, 2006, showed a gross bi-weekly income of $1,652. Until sometime in 2004, plaintiff additionally worked thirty hours per week as a part-time driver for QSP Pharmaceuticals.

Plaintiff testified that he and his brother started Mountain View Tree Service, LLC (Mountain View) in 2001. During his ownership, plaintiff stated he and his brother worked on Saturdays and earned approximately $300-$400 per month. Plaintiff introduced the corporate income tax returns that reflected the gross profit of the business as: 2003-$19,296; 2004-$34,446; and 2005-$72,716.

In 2004, plaintiff explained that financial constraints necessitated that he sell his one-half interest in the business to his brother for $100 plus his brother's assumption of the $6000 corporate debt. Plaintiff acknowledged that in the summer 2005, he "picked up some days" working for his brother and was paid $100 per day.

Defendant was not employed outside the home during the marriage. She commenced employment as a sales clerk with Helzberg Diamonds in the last week of December 2005, and earned a bi-weekly gross income of approximately $1100.

At trial, defendant testified that she continued to see plaintiff riding with his brother in the Mountain View trucks. Defendant believed plaintiff never sold his interest in the business because he loved the work and had told her the business generated about $1000 per day. To support her position, defendant presented documents she averred were found in the former marital home after the parties had separated. The documents were Mountain View estimate sheets from for periods in 2003, 2004, and the first quarter of 2005. The record provided on appeal only contains invoices from 2004. Over eighty of these invoices were marked "paid in full" and stated that a cash payment was received. Defendant testified that the total gross receipts reflected by the estimates/invoices for a portion of the years presented were: 2003-$90,603; 2004-$196,714; and 2005-$34,498.

The trial judge expressed his factual findings on this issue, as follows:

[T]hese documents were used as both estimates and invoices and all of these documents have notations on them that they were either paid in full or that cash was received or a check was received.

. . . .

Now, the interesting thing about these invoices is they were found by the defendant[,] according to her testimony[,] after the plaintiff either left or was removed from the house following the [FRO].

Mr. Ceca testified that []his interest in the business was sold in early 2004. If that were the case, one obvious question that arises is why would Mr. Ceca have these invoices at his residence[?] The only conclusion that I can reach is that Mr. Ceca had an ongoing interest in the business that continued after January 2004[,] and well through the pendency of this litigation, and perhaps up to the present. Why would Mr. Ceca have had a package of 40 or 50 invoices for the period of February through April and May of 2005 at his residence unless Mr. Ceca was a partial owner of . . . the business[?]

. . . .

The other reason I reached this conclusion is that . . . Ms. Ceca testified that she[,] on a number of different occasions, . . . saw Mr. Ceca . . . with his brother and father in the [company] truck well after the parties separated and Mr. Ceca, according to her, was still actively involved in the business.

The other interesting fact[,] which I gleaned from Mr. Ceca's documents, P-3 in evidence, which include a letter to his accountant, Mr. Mahler, dated February 21, 2004, he purports to communicate . . . that he sold his business interest . . . to his brother. In that letter[,] he says that [h]is brother paid him one dollar. Not a hundred dollars, but one dollar. I have to wonder whether this was a document . . . created after the fact to try to back[]track and establish . . . that a sale took place when in fact it did not.

I also look at the partnership returns Form 1065 . . . Mr. Ceca provided to the Court[,] which are . . . part of P-3 in the evidence package, these documents purport to show that the total . . . gross revenue from all sources for this business in 2003 was $26,561[,] that the gross revenue for the business in 2004 was $55,528[,] [and] that the gross revenue for the business in 2005 was $84,073. Well[,] the invoices for 2004 alone[,] according to D-2 in evidence[,] total $196,714. That's about $150,000 . . . more than what was disclosed in the partnership return.

These documents cause me to have the view and lead me to the conclusion that the business . . . produced a lot of cash . . . income. . . . And I find that Mr. Ceca benefited from this business and the cash that this business derived. I find it would be incredibly stupid on the part of anyone, whether it be Mr. Ceca or anyone else, to willingly or voluntarily give up an interest in this type of business but for one reason . . . to hide income or to take the position that the business failed or the business was sold . . . because the parties were separated and Mr. Ceca . . . was engaged in an effort to try to minimize and show as low an income as possible.

. . . .

The parties bought a house in 2004 in Ogdensburg, New Jersey. They're paying a mortgage of over $2,000 per month including taxes and interest. . . . The only person who was working was Mr. Ceca and his claim was that he made only 40 to $45,000 a year. And the mortgage payments alone are . . . over $24,000 a year. That's over 65 percent of Mr. Ceca's after[-]tax income if he's only working at Chilton Memorial Hospital. There is no way these parties could have survived financially and paid for this house based upon Mr. Ceca's income at Chilton Memorial Hospital alone. It would be impossible. Absolutely impossible to support him[], his wife, and the two children . . . plus pay . . . the mortgage and the taxes and the interest, without this additional side income.

. . . .

I have to find[,] . . . based upon the finances of the parties that this . . . business generated . . . an additional $480 at least per week. And that's probably on the low side. $480 per week times 52 equals just under $25,000 a year. And again, I emphasize that that $480 is probably extremely on the low and surely conservative side. I have every reason to believe that it was much higher than that but I can't arrive at a conclusion that it was higher than that with a specific number because I don't have the proofs to document it.

Plaintiff's arguments that the evidence was improperly admitted and considered, as well as the contention that the trial court was bound by the amount of income reported in the corporate informational returns filed by the LLC because they represent a "determination by an administrative agency [which] carries a presumption of correctness," are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

The determination of whether to impute income lies within the discretion of the trial judge. See Storey v. Storey, 373 N.J. Super. 464, 474 (App. Div. 2004). "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." Overbay v. Overbay, 376 N.J. Super. 99, 106-07 (App. Div. 2005) (quoting Storey, supra, 373 N.J. Super. at 474-75). In this matter, the trial judge relied upon the testimony of the parties tempered by his credibility determinations, and the documentary evidence. Because of the Family Part's special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding whenever supported by adequate, substantial and credible evidence. Cesare v. Cesare, 154 N.J. 394, 413 (1998); Rova Farms Resort v. Investors Ins. Co., Inc., 65 N.J. 474, 483-84 (1974). The evidence in this record amply supports the trial court's finding regarding plaintiff's involvement with the business and the conclusion to impute income to him as a result of that involvement.

The second challenge presented by plaintiff on appeal is that the trial court erred in making an award of limited duration alimony in the amount of $450 per week for a period of ten years. When reviewing an alimony determination, deference is given to the trial judge's factual findings, Cox v. Cox, 335 N.J. Super. 465, 473 (App. Div. 2000), and we should not disturb the alimony award unless these findings are not "supported by substantial credible evidence in the record as a whole." Ibid. (quoting Reid v. Reid, 310 N.J. Super. 12, 22 (App. Div.), certif. denied, 154 N.J. 608 (1998)). In determining an appropriate alimony award, the goal is "to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage." Crews v. Crews, 164 N.J. 11, 16 (2000). The trial court should not merely consider the economic contributions of the parties, but should recognize that "marriage is an adaptive economic and social partnership." Cox, supra, 335 N.J. Super. at 479. Limited duration alimony considers a dependent spouse's contribution to a relatively short-term marriage that nevertheless reflected the concept of a marital partnership. Id. at 476.

To determine whether to award limited duration alimony, the trial judge must make specific factual findings regarding the statutory factors set forth in N.J.S.A. 2A:34-23b, adjusted only to reflect the limited duration of the marriage. Id. at 483. Plaintiff argues that no lifestyle findings were made and that the trial court failed to make a finding of defendant's needs.

The trial judge elicited some testimony regarding the marital lifestyle, including that the parties resided in a single-family home in Ogdensburg, New Jersey, valued for $305,000 at the time of trial, which was encumbered by a mortgage with a monthly mortgage payment of over $2000; and that in the recent past, the parties had several vehicles: a 2001 Mitsubishi Spider, which was repossessed in June 2004; a 1991 Isuzu pick-up truck, which was unencumbered and driven by plaintiff; a 2002 Mercedes E430, which was repossessed in June 2006; and an unencumbered 1990 Chevrolet Caprice driven by defendant.

Regarding the other statutory factors, the trial court considered plaintiff's ability to pay, as presented by his testimony of his regularly incurred expenses, among which were: $100 per week to his parents for board, $104 per week for child support for his oldest child, $160 per month for auto insurance, $60 per week for gasoline and automobile maintenance, $20 per week for health insurance and $10 per week for dental insurance for the family, and $100 per month for the debt resulting from the Mitsubishi repossession. Also, limited findings with respect to the propriety of awarding limited duration alimony considered the parties' ages, the short length of their marriage, defendant's limited education and lack of work experience, plaintiff's gross income of $842 per week, along with imputed income of $480 per week, defendant's gross income of $550 per week, and defendant's primary responsibility to care for the children.

While it is clear from the record that the trial judge reviewed each party's Case Information Statement (CIS) filed in September 2005, plaintiff is correct that defendant provided no testimony regarding her need for support, to supplement her earnings, so as to satisfy her expenses. While this fact may be self-evident inasmuch as defendant and the children resided in the former marital home which had a monthly mortgage obligation that exceeded defendant's monthly net income, the trial court, nevertheless, must establish the level of defendant's current need as related to the marital lifestyle. Neither party addressed marital lifestyle, except to state that their bills, including the mortgage, were paid from plaintiff's earnings.

A lifestyle determination and a finding on the dependent spouse's need are imperative to sustain the exercise of discretion in setting the proper amount of any alimony award. Crews, supra, 164 N.J. at 35. Thus, we determine a remand is required to provide specific findings on the standard of living established during the parties' marriage and defendant's need for support. As necessary, the trial judge may be required to revise child support in the event that the level of alimony is changed.
Affirmed in part and reversed and remanded in part for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

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A-6180-05T5

June 19, 2007