Opinion
DOCKET NO. A-4716-11T3
03-04-2015
KATHY KALLER, f/k/a KATHY GOGAN, Plaintiff-Respondent, v. GEOFFREY LEE GOGAN, Defendant-Appellant.
Kalish Law Group, attorneys for appellant (Jared I. Kalish, on the brief). Kathy Kaller, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Accurso. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-96-01. Kalish Law Group, attorneys for appellant (Jared I. Kalish, on the brief). Kathy Kaller, respondent pro se. PER CURIAM
Although Judge Grall was on the panel that issued the initial decision, she has since retired.
This matter returns to us following our remand to the Family Part to make findings and explain the basis of its decision, after a plenary hearing, to reduce defendant's alimony to $175 per week on the parties' dueling post judgment motions. The reasons for that decision are set forth in our opinion directing the remand. Kaller v. Gogan, No. A-4716-11 (App. Div. Jan. 22, 2014). Simply stated, we could not tell how the judge arrived at what appeared to be his conclusion that plaintiff, who reported income of "$12,496 in 2010, and an average gross weekly income of $401.19 during the first ten months of 2011, a rate that that would yield an annual gross income of approximately $20,800 assuming fifty-two weeks of work," id. at 3, earned only $12,000 for 2011.
On remand, the Family Part further reduced defendant's alimony obligation to $164 a week. In explaining the reasons for the decision, the judge wrote:
In supplementation of the previous ruling in this matter, the Defendant's alimony obligation was appropriately reduced from $346.00 per week to $175.00 per week. The court further reviewed the matter and determined that this sum should be further reduced to $164.00 per week with $10.00 towards arrears. The net effect will be that the parties will be in equipoise in that each party will net $368.00 per week based upon Plaintiff's earnings of $12,000.00 per year and Defendant's earnings of $32,000.00 per year.
We now understand what the judge was attempting to do, that is to award plaintiff sufficient alimony so that each "will net $368 per week based upon Plaintiff's earnings of $12,000 per year and Defendant's earnings of $32,000 per year." Unfortunately, we still are unable to understand from the testimony at the plenary hearing and the documents in the record why the judge has concluded that plaintiff earns $12,000 per year.
Defendant has asserted since the reconsideration motion in February 2012 that the court erred in stating in its January 26, 2012 statement of reasons that defendant was arguing that plaintiff's earnings in 2011, excluding alimony, were $12,000 based on her case information statement of October 2011. Defendant accepts the court's finding that his gross income for 2011 was $32,000, but he rejects (and has never argued) that plaintiff's gross income, excluding alimony, was only $12,000 in 2011. Defendant argued in the trial court and maintains on appeal that plaintiff's 2011 gross earnings from her October 2011 case information statement should have been $21,112, based on her reported average gross weekly income of $406 for fifty-two weeks.
If we could determine plaintiff's earnings for 2011 from the record, we would exercise original jurisdiction and set the amount of alimony ourselves in order to bring this matter to conclusion. See R. 2:10-5; Accardi v. Accardi, 369 N.J. Super. 75, 91-92 (App. Div. 2004). The record, however, is simply inadequate for us to do so.
Plaintiff has attached the first page of her 2011, 2012, and 2013 federal tax returns to her brief. These documents were not before the trial court and defendant objects to us considering them on appeal pursuant to Rule 2:5-4(a). We thus decline to do so.
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Accordingly, we again remand to the trial court to explain the basis for its finding that plaintiff's earnings for 2011 were $12,000, approximately $9000 less than would appear from a simple calculation based on weekly wage figures supplied in plaintiff's October 2011 case information statement in the record, and its conclusion that alimony should be reduced to $164 per week. In order to avoid further confusion, the court should explain the basis of its calculation of plaintiff's average gross weekly wage and her earnings for 2012. If it is excluding any income received in that year or using some number of weeks fewer than fifty-two, it should explain why based on facts of record or case law. If the judge has taken into account the tax effect of any award, it should similarly explain its conclusions and calculations in sufficient detail so as to permit review.
This task should be completed within forty-five days. Nothing in the opinion should be understood to preclude the judge from modifying the order entered on remand. Jurisdiction is retained. Absent a withdrawal of the appeal, upon receipt of the judge's supplemented statement of findings and reasons, the clerk of this court will file a schedule for expedited supplemental briefing limited to argument on the judge's supplemented statements.
Remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION