CHARLES E. OLIVER, III v. SHARON OLIVER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1971-12T2

CHARLES E. OLIVER, III,

Plaintiff-Appellant,

v.

SHARON OLIVER,

Defendant-Respondent.

_________________________________

February 5, 2014

Submitted: January 29, 2014 Decided:

Before Judges Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-269-10.

Charles E. Oliver, III, appellant pro se.

Sharon Oliver, respondent pro se.

PER CURIAM

In this post-judgment matrimonial matter, plaintiff appeals from the November 16, 2012 Family Part order increasing his child support obligation. We remand and direct the court to make the requisite findings of fact and conclusions of law.

The parties were married in March 2002, separated in July 2009, and divorced in June 2010. They have a daughter, who is now twelve years old.

Prior to the parties' divorce, defendant did collections work for a private company. She asserts that she lost her job in September 2009 "due to lateness." However, plaintiff alleged that defendant "intentionally lost her job[.]" Pursuant to the terms of a January 8, 2010 order, plaintiff was required to pay defendant $115 per week in child support. The support was calculated based upon plaintiff's annual income of $100,100 and defendant's imputed annual income of $68,333, which was the amount she was earning in employment before she was terminated.

In September 2012, defendant filed a motion for an increase in child support. She alleged that she was unemployed for a period of time and then began working part-time for several different companies. Defendant certified that, in June 2012, she obtained a full-time position doing collections work. This job paid $30,000 per year. Defendant explained that she was able to earn more from her prior employment because her employer paid her commissions in addition to her base salary. She is not eligible to receive commissions in her current job.

Plaintiff opposed the motion and argued that defendant should continue to have $68,333 in annual income imputed to her. Plaintiff again asserted that defendant had deliberately lost her better-paying job in 2009 and that she had failed to demonstrate that she had attempted to obtain a new job with a comparable salary package.

Following oral argument, the court granted defendant's motion and increased plaintiff's child support obligation from $115 to $181 per week. In so ruling, the court used defendant's $30,000 annual income from her current position, rather than her prior imputed income of $68,333 per year, to calculate the support.1 The court did not make sufficient findings of fact in support of its decision and it did not specifically address whether defendant was or was not underemployed.

On appeal, plaintiff argues that the trial court erred by "fail[ing] to take into account the deliberate actions of defendant not to seek or accept work since she was fired in October of 2009." We agree.

Pursuant to Rule 1:7-4(a), "the court shall . . . find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right[.]" See Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 300-01 (App. Div. 2009). Here, the court did not make specific findings addressing plaintiff's contention that defendant was underemployed because she failed to seek work at an income level comparable to that used to calculate support in January 2010. Although it may be inferred, from the colloquy between the parties and the court, that the court was not persuaded that defendant should continue to have income imputed to her, a trial judge's colloquy during a motion hearing is not a substitute for the judge's obligation to articulate findings of facts and conclusions of law. Pardo v. Dominquez, 382 N.J. Super. 489, 492 (App. Div. 2006) (rejecting "the suggestion that a judge's comment or question in a colloquy can provide the reasoning for an opinion which requires findings of fact and conclusions of law"). We therefore reverse and remand to the trial court with the direction that it provide the parties with a full explanation of its findings of fact and conclusions of law.

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

1 The court determined that plaintiff's current annual income was $92,166.52.