Opinion
DOCKET NO. A-1715-12T2
03-03-2014
ROY ANTONOFF, Plaintiff-Appellant, v. SANDRA ANTONOFF, Defendant-Respondent.
Green & Associates, LLC, attorneys for appellant (Michael S. Green, on the briefs). Dennigan Cahill Smith, LLC, attorneys for respondent (Elizabeth A. Smith, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Simonelli and Fasciale.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1239-12.
Green & Associates, LLC, attorneys for appellant (Michael S. Green, on the briefs).
Dennigan Cahill Smith, LLC, attorneys for respondent (Elizabeth A. Smith, of counsel and on the brief). PER CURIAM
Plaintiff appeals from an amended final judgment of divorce (JOD), and an order sanctioning him and denying his motion for reconsideration of the JOD. We reverse, remand, and direct the judge to consider anew issues related to the equitable distribution of the parties' vehicles and plaintiff's support obligations.
We discern the following facts from the evidence adduced at the two-day trial in August and September 2012. The parties were married in 1987 and had three children together. During the majority of their twenty-four-year marriage, plaintiff owned a heating, ventilation, and air-conditioning (HVAC) installation company. Defendant was a stay-at-home mother, but she returned to work as a medical biller after plaintiff's HVAC company began losing its book of business in 2008. In 2009 and 2010, plaintiff worked for his brother's air-conditioning company, earning substantially less than he made as the owner of his own business. Thereafter, plaintiff worked odd jobs and, at the time of the trial, was unemployed.
The children were born in 1988, 1990, and 1993. The two oldest children were emancipated at the time of the trial.
The parties complied with the judge's instructions and submitted written summations at the end of the trial. In October 2012, the judge entered a JOD, imputed income to plaintiff in the amount of $67,910, and awarded to defendant (1) $788 per month in alimony; (2) $4,200 in proceeds from the sale of the parties' Mini Cooper; and (3) $6,587.45 in attorney's fees. The judge denied plaintiff's motion for reconsideration of the JOD and awarded defendant counsel fees in the amount of $1,229.80 for having to defend his motion. In January 2013, the judge amended the JOD sua sponte and reduced plaintiff's child support obligations from $192 to $168, to be paid bi-weekly.
On appeal, plaintiff argues that the judge (1) failed to consider his pro se written post-trial summation; (2) erred by denying his reconsideration motion; (3) abused her discretion by awarding defendant counsel fees as a sanction against him; (4) imputed the wrong amount of income to him; (5) miscalculated his alimony obligation; and (6) inequitably distributed the parties' vehicles.
At the outset, we conclude that the judge erred by not considering plaintiff's written summation. Plaintiff provided to the judge his pro se written summation that contained: (1) a cover letter; (2) computer printouts; (3) plaintiff's handwritten letter to defendant of July 13, 2011; (4) several emails between plaintiff and defendant from October and November 2011; and (5) defendant's case information statement (CIS) with plaintiff's handwritten notations. These materials were relevant to the disputed issues, and it is unclear why the judge failed to consider them. The record does not indicate whether the materials were untimely filed, whether the judge rejected the materials because they were not in the form of a brief, or whether the judge never received the materials. Nevertheless, the judge should have considered the summation and should do so on remand.
Plaintiff contends that the judge miscalculated his alimony obligation and erred by imputing the wrong amount of income to him. Because the family courts are presumed to possess special expertise in matters such as the calculation of support obligations, their factual determinations are entitled to a high degree of deference. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Consistent with this standard of review, "[f]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). An appellate court should not reverse a trial court's findings unless it concludes that the determinations "'are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)).
A trial judge has the discretion to impute income, but only after first finding that a party is voluntarily unemployed or underemployed. Caplan v. Caplan, 182 N.J. 250, 268 (2005). In fact, "[s]uch a finding is requisite, before considering imputation of income." Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998). Here, the judge correctly determined that plaintiff was voluntarily unemployed and then addressed the difficult task of deriving an amount of income to impute to plaintiff.
"Imputation of income is a discretionary matter not capable of precise or exact determination but rather requiring a trial judge to realistically appraise capacity to earn and job availability." Storey v. Storey, 373 N.J. Super. 464, 474 (App. Div. 2004). An alimony award "should take into consideration the real facts and circumstances of each party's financial situation including actual income, expenses, support from other sources and potential earning capacity." Connor v. Connor, 254 N.J. Super. 591, 604 (App. Div. 1992). A trial judge's imputation of a specific amount of income "will not be overturned unless the underlying findings are inconsistent with or unsupported by competent evidence." Storey, supra, 373 N.J. Super. at 474-75. There are no bright-line rules that govern the imputation of income. Id. at 474; see also Caplan, supra, 182 N.J. at 270. Applying these standards, we conclude that the judge erred.
Although the judge used the New Jersey Occupational Wage Compendium of the Department of Labor to obtain the average earnings for plaintiff's occupation, she erred by applying to plaintiff the annual wages of an HVAC installer. The parties testified that plaintiff had not installed air conditioning and heating units for more than a decade. Plaintiff's primary experience was as a business owner responsible for sales and preparing estimates, not as an installer of HVAC equipment.
We conclude, therefore, that the judge's imputation of income to plaintiff is unsupported by the competent evidence. Plaintiff lacked any meaningful experience as an HVAC installer. We recognize that imputing income is not an exact science, but the judge should have attempted to realistically appraise plaintiff's ability to earn income by considering plaintiff's existing job opportunities and his experience as an HVAC business owner and estimator. In imputing income to plaintiff, we leave to the discretion of the judge whether to require additional evidence from the parties.
In arriving at the alimony award, the judge properly reduced defendant's monthly expenses by deleting the following: $3,473 for mortgage payments; $617 for decreased food costs; $150 for clothing and other expenses that the youngest child could pay himself; and $373 for debt service allocable to one of the emancipated children's student loan. However, the judge miscalculated the total monthly expenses to be $3,439 rather than $3,289. In addition, defendant testified that she no longer pays eighty-three dollars per month for life insurance. The judge did not sufficiently address family expenses such as fuel costs, car insurance and maintenance, or cell phone bills, despite saying that the children were capable of contributing to their own needs. As a result, the alimony award was not supported by competent evidence.
Plaintiff argues that the judge failed to equitably distribute the parties' vehicles, which included a Ford Windstar, a Mercedes, and a Mini-Cooper. He contends that the judge failed to include the Mercedes as part of the marital estate, and maintains that although he was allowed to retain the Windstar, that vehicle was worth $1,400, not $14,000 as the judge stated.
"Where the issue on appeal concerns which assets are available for distribution or the valuation of those assets, . . . the standard of review is whether the trial judge's findings are supported by adequate credible evidence in the record. Borodinksy v. Borodinsky, 162 N.J. Super. 437, 443-44 (App. Div. 1978). "[W]here the issue of appeal concerns the manner in which allocation . . . is made," the appellate court reviews for abuse of discretion. Id. at 444.
Equitable distribution is a three-step proceeding, in which a trial judge must (1) "decide what specific property of each spouse is eligible for distribution"; (2) "determine its value for purposes of such distribution"; and (3) "decide how such allocation can most equitably be made." Rothman v. Rothman, 65 N.J. 219, 232 (1974). Pursuant to N.J.S.A. 2A:34-23.1, the trial court must consider factors including the duration of the marriage, the income or property the parties brought to the marriage, and their economic circumstances at the time of division. The judge stated that
plaintiff will be required to pay the defendant $4,200[,] representing her share of the Mini-Cooper[,] which sold for $8,400.
The defendant seeks equitable distribution of a Ford Windstar purchased by the plaintiff for $14,000 . . .
This vehicle was not included in the plaintiff's [CIS] or defendant's [CIS] nor was it included as part of the requested relief at the outset of the trial. Moreover, the defendant has maintained the 2006 Mercedes and the plaintiff has made no request for an equitable share of this vehicle.
Accordingly, the plaintiff shall retain the Ford Windstar free and clear from any claims by the defendant and the defendant will retain the 2006 Mercedes free and clear from any claims by the plaintiff.
The record does not support these findings. Plaintiff's complaint requested distribution of all marital assets. In his CIS, plaintiff indicated that he purchased the Windstar for $1,400, not $14,000. Plaintiff and defendant listed the value of the Mercedes as $15,000 and $14,000 respectively. We therefore conclude that the judge abused her discretion and made findings unsupported by adequate credible evidence in the record.
We vacate the order sanctioning plaintiff and set aside the award of counsel fees without prejudice. We direct the judge to (1) re-impute income commensurate with plaintiff's experience; (2) re-calculate defendant's monthly expenses; (3) re-establish plaintiff's support obligations; and (4) re-visit the equitable distribution of the parties' vehicles. On remand, the parties may seek counsel fees if warranted after the judge conducts further proceedings consistent with this opinion.
Reversed and remanded.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION