ERIKA BULANOV v. ANATOLY BULANOV

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0338-20

ERIKA BULANOV,

          Plaintiff-Respondent,

v.

ANATOLY BULANOV,

     Defendant-Appellant.
_______________________

                   Submitted November 8, 2021 – Decided November 30, 2021

                   Before Judges Sabatino and Rothstadt.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Morris County,
                   Docket No. FM-14-0869-19.

                   Anatoly Bulanov, appellant, pro se.

                   Respondent has not filed a brief.


PER CURIAM

          In this unopposed pro se appeal, defendant Anatoly Bulanov, the father of

three children, contests the Family Part's June 15, 2020 order calculating child
support at $376 per week. The court's decision was based on: (1) a finding that

the father was voluntary unemployed, and (2) an imputation to him of annual

earnings of $109,240 as a computer software developer, a figure derived from

the Bureau of Labor Statistics.

      For the reasons that follow, we affirm the trial court's finding of the

father's voluntary unemployment and its corresponding election to impute

earnings to him. However, we vacate the imputed figure adopted by the court

because there is no evidence of a history of the father earning that level of

income on a sustained basis. We remand for further development of the record

and reconsideration of the imputed amount.

      The record before us is sparse. The parties divorced in 2019. At the time

of the divorce, their three children were all minors. They resided with their

mother, plaintiff Erika Bulanov, in the same apartment complex as the father.

Although they had parenting time with the father on an informal schedule, the

children did not stay overnight with him. The father apparently paid for some

of the children's needs, but there was no provision in the divorce judgment

specifying child support.

      In February 2020, the mother file a motion with the Family Part to

establish a child support amount.      The parties each submitted financial

information to the court. The mother stated she earned an annual income of

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$35,726 in the preceding year. The father, meanwhile, submitted an updated

Case Information Statement but, according to the motion judge, it omitted any

information about the father's earnings. 1

      The court conducted a remote hearing on June 12, 2020, at which both

parties appeared without counsel and testified under oath. The mother requested

and was provided with the services of a Spanish interpreter. The transcriber of

the hearing noted the quality of the sound recording was "very poor," and the

transcript contains multiple "indiscernible" passages.

      During the hearing, the father acknowledged the mother's W-2 form shows

she earned approximately $35,000 the previous year. As for himself, the father

testified he has been unemployed since 2016, when he worked "on and off" for

about five or six months.    He could not recall how much he earned that year.

The father asserted he pays for some of the children's expenses, and that he pays

his daughter $100 when and if she beats him at chess, but he did not show how

he could afford those payments.

      The father testified that he has been unable to obtain employment in his

field as a computer programmer. According to the father, his computer skills

are substantially obsolete. He contended that jobs in his field have been scarce


1
   The father has not supplied in his appendix the parties' Case Information
Statements that had been presented to the trial court.
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during the pandemic and have been taken by cheaper workers abroad. The father

acknowledged he did earn about $10,000 to $12,000 in one month on a project

for American Express an unspecified number of years ago, but thereafter did not

find a comparable opportunity. The father stated he was "going to make an

effort to find . . . employment," and that "relatives and friends" told him they

were "going to" help him find a job in Russia. However, the father did not

present documentation of any job search.

      Based on the parties' testimony and the limited evidence presented, the

motion judge calculated child support, utilizing the Guidelines prescribed by

Rule 5:6A. In the associated child support worksheet, the judge adopted the

mother's annual income of $35,726. As for the father, the judge found he was

voluntarily unemployed, and had no just cause for not earning income to support

his children. The judge imputed annual income to the father of $109,240, based

on data from the Bureau of Labor Statistics ("BLS") reflecting that computer

software developers earn an annual mean wage at that amount. The judge did

not address defendant's contention that an increasing number of IT and computer

engineering jobs are migrating from the United States to foreign markets.

      The judge incorporated those respective income figures into the

worksheet, with no overnights for the father, and determined the father should

pay $376 weekly in child support. The judge entered an order directing that

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amount, retroactively effective as of February 12, 2020, the date of the mother's

motion filing. The father moved for reconsideration, which the court denied.

      On appeal, the father contends the imputed income figure is excessive and

unfair, stressing that he was unemployed due to Covid-19 pandemic and that his

computer skills related to an outdated program. The father advises he recently

obtained a job as a truck driver, paying him $21 per hour.

      The mother has not filed an opposing brief.

      Our scope of review in this Family Part matter is limited. We will not

disturb the trial court's findings unless they are demonstrated to lack support in

the record with substantial, credible evidence.     Rova Farms Resort, Inc. v.

Investors Ins. Co. of Am.,  65 N.J. 474, 483-84 (1974). We must give due regard

to the trial judge's credibility determinations and "feel for the case" based upon

the opportunity of the judge to see and hear the witnesses. Cesare v. Cesare,

 154 N.J. 394, 411-12 (1998); see also Pascale v. Pascale,  113 N.J. 20, 33 (1988).

Given the Family Part's special expertise, appellate courts must accord particular

deference to fact-finding in family cases, and to the conclusions that logically

flow from those findings. Cesare,  154 N.J. at 412-13.

      Except for high-income households not involved here, the New Jersey

Child Support Guidelines (“the Guidelines”) are generally used in cases where

child support is being established. R. 5:6A. There is a rebuttable presumption

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that a child support award calculated in accordance with the Guidelines is

correct "unless a party proves to the court that circumstances exist that make a

guidelines-based award inappropriate in a specific case."          Child Support

Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to

R. 5:6A, ¶ 2 (2021). The Guidelines aim to ensure fairness in child support

awards. Caplan v. Caplan,  182 N.J. 250, 264-65 (2005).

      The pivotal issue here is the imputation of income to the father. The

Family Part may impute income where a parent has voluntarily become

underemployed or unemployed. Id. at 268. In deciding whether to impute

income on grounds of voluntary unemployment, the primary inquiry is whether

the unemployed party has "just cause" to remain unemployed. Ibid. To do so,

the court must consider four factors: "(1) what the employment status and

earning capacity of that parent would have been if the family remained intact

…, (2) the reason and intent for the voluntary underemployment or

unemployment, (3) the availability of other assets that may be used to pay

support, and (4) the ages of any children in the parent’s household[.]" Pressler

& Verniero, Appendix IX-A at ¶ 12. "Additionally, factors such as previously

announced plans to retire at an early age, health of the parties, whether one party

would remain out of the workforce to care for the children, and other similar

considerations that the intact family had or would have contemplated, should be

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considered by the trial court in making the 'just cause' determination." Caplan,

 182 N.J. at 268.

      Based on the testimony and evidence presented at the motion hearing, we

affirm the judge's finding that the father is voluntarily unemployed. The father

presented no evidence to substantiate his contention that he has been unable to

find gainful employment of any kind to support his children for over four years.

He identifies no positions he applied for, no prospective employers he contacted,

or any efforts to obtain work through a job search agency.

      We therefore affirm the motion judge's sound decision to impute income

to the father. We are not, however, persuaded on this record that it was fair or

appropriate to impute to the father the substantial BLS mean income for

computer software programmers.

      There is no evidence that the father had a track record of past annual

earnings at that six-figure level. His earnings of $10,000 to $12,000 for a one-

month project years ago should not be extrapolated, without more evidence, to

impute over $100,000 in annual income to him.

      When imputing income, a trial court must decide whether the

circumstances warrant imputation, and if so, must then determine the amount to

impute. Ibrahim v. Aziz,  402 N.J. Super. 205, 210 (App. Div. 2008). The

amount "must be 'based on a realistic assessment of [a parent's] capacity to

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earn'" because "the underpinnings for a support award is the obligator’s ability

to pay." Id. at 213 (quoting Dorfman v. Dorfman,  315 N.J. Super. 511, 516

(App. Div. 1988)) (emphasis added).

        Although we appreciate the difficulties the motion judge faced in

presiding over a remote hearing with an interpreter and two self-represented

parties, the imputation of over $100,000 in annual income to the father lacks a

sufficient evidential basis to be a "realistic assessment" of his earnings capacity.

        Consequently, we remand for reconsideration of the child support amount,

based on a fuller record to be developed. In the interim, the $376 weekly figure

shall remain unaltered until such time as the trial court examines the matter

anew.

        Affirmed in part, and remanded in part. We do not retain jurisdiction.




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