Opinion
DOCKET NO. A-4629-11T2
03-27-2013
LYNNE M. OLT, Plaintiff-Respondent, v. J. BRIAN OLT, Defendant-Appellant.
Ted M. Rosenberg argued the cause for appellant (James T. Rosenberg, of counsel and on the briefs; Mr. Rosenberg, on the briefs). Peter M. Halden argued the cause for respondent (Gerstein Grayson & Cohen, LLP, attorneys; Mr. Halden, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Simonelli.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-868-05.
Ted M. Rosenberg argued the cause for appellant (James T. Rosenberg, of counsel and on the briefs; Mr. Rosenberg, on the briefs).
Peter M. Halden argued the cause for respondent (Gerstein Grayson & Cohen, LLP, attorneys; Mr. Halden, on the brief). PER CURIAM
In this post-judgment matrimonial matter, defendant J. Brian Olt appeals from the April 20, 2012 Family Part order, which granted his motion to modify child support based on changed financial circumstances. Defendant challenges the income imputed to him and the child-care costs deducted from the income imputed to plaintiff Lynne M. Olt. We affirm in part, reverse in part, and remand for further proceedings.
We decline to address defendant's contention that the judge should have required plaintiff to pay one-half of the children's airfare to Florida for defendant's summer parenting time and accompany them on the flights. Defendant did not raise this issue before the trial judge, and it is not jurisdictional in nature nor does it substantially implicate the public interest. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 339 (2010).
The parties have filed numerous post-judgment motions. We focus on that part of the record that is pertinent to this appeal.
The parties were married in April 1999, and have three children, born in 2000, 2004, and 2005 respectively. Pursuant to the January 25, 2007 supplemental judgment of divorce (SJOD), the parties have joint legal custody of the children with plaintiff as the parent of primary residence and defendant as the parent of alternate residence. The SJOD set a shared parenting-time schedule, and set child support at $187 per week based on defendant's presumptive entitlement to 104 overnights per year with the children, his $1423 gross weekly income, and plaintiff's imputed income of $375 per week.
Plaintiff is a cosmetologist. Defendant has a bachelor's degree in marketing and management. From 1988 to 2009, he was employed as either a chief financial officer (CFO) or corporate controller by various companies, including a nationwide supply company, an oil refinery, and a company involved in the manufacture of engineered military government machinery and equipment. In 2008, he was a CFO for a company involved in the home health industry, and earned approximately $93,000. He was terminated from that job in March 2009.
Sometime in 2009, a motion was filed to recalculate child support. In a June 19, 2009 order, the trial judge imputed income of $23,462 to plaintiff, utilized defendant's $92,783.24 income in 2008, included defendant's 104 overnights with the children, and set child support at $259 per week. The judge determined that, based on the U.S. poverty guidelines for a household of four, the sum of $259 per week would have placed plaintiff below the poverty level. The judge, thus, used the sole parenting worksheet and recalculated child support at $282 per week.
The motion is not in the appendix.
This was a twenty-percent increase from the plaintiff's imputed income as per the SJOD. The judge found the increase appropriate because the children were older and attending in daycare or school. The judge used the New Jersey Department of Labor Wage Compendium for hairdressers in the twenty-fifth percentile to set new imputed income amount.
The parties had used the shared-parenting worksheet to calculate the children support amount stated in the SJOD.
Defendant filed a motion for reconsideration. In an August 7, 2009 order, the judge granted the motion, and reduced child support to $271 per week.
In August 2009, defendant obtained employment as director of accounting for a company named "BDP." He was laid off in March 2010, and began receiving $2200 per month in unemployment benefits. On October 26, 2010, he filed a motion for an order terminating or modifying child support.
Defendant did not reveal in what industry this company was engaged.
In a December 10, 2010 order and written opinion, the trial judge reduced child support to $202 per week plus $25 per week for arrears for a total of $227 per week, effective October 26, 2010. In calculating child support, the judge imputed income of $75,000 to defendant and $16,000 to plaintiff.
Defendant exhausted his unemployment benefits by January 2012. On February 29, 2012, he filed a motion for an order terminating or modifying child support, and imputing income of $32,000 to plaintiff. He certified he had no income and minimal assets, had a $3465 monthly budget, which included monthly child support, he and his new wife were living with his mother, he was renting his townhouse for $2500 per month, and the townhouse was worth $315,000 but had two mortgages totaling $262,000 encumbering it. Defendant asserted he had sought financial executive positions and sent out over 400 resumes; however, his 1998 criminal conviction for aggravated assault and the lengthy period of unemployment inhibited his ability to find work. He claimed he had to move to Florida where there were better job opportunities in the health care industry.
Defendant did not include his rental income on his February 15, 2012 Case Information Statement.
Defendant asked the court to impute income of $32,000 to plaintiff because she could work full-time and was operating a beauty salon from her home and earning more than her stated income. Defendant also asked the court to modify the shared parenting-time schedule to accommodate his move to Florida.
In opposition, plaintiff noted that defendant had obtained high-paying jobs in the past despite his 1998 criminal conviction. She argued that defendant was voluntarily unemployed for three years, and should have lowered his sights or sought employment in areas other than the home health care industry. She certified she was working as a part-time para-professional at a middle school earning $222.75 per week, worked forty weeks in 2011, and earned $8910. She said full-time employment was not possible because she had to be available to care for her young children before and after school. She emphasized she would be in no better financial position if she worked full-time because she would incur child-care expenses.
In an April 20, 2012 order and written opinion, the judge reduced child support to $204 per week, retroactive to February 29, 2012. The judge found that defendant failed to seek employment outside the health care industry. The judge initially imputed income of $29,000 to defendant, which is the amount defendant received in unemployment benefits in 2011. The judge then added defendant's net yearly rental income of $16,000, and imputed income of $45,000 to defendant. The judge initially imputed income of $32,000 to plaintiff as a full-time cosmetologist. After deducting $9,000 for child-care costs plaintiff would incur if employed full-time, the judge imputed income of $23,000 to plaintiff. This appeal followed.
The parties do not challenge this determination.
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I.
On appeal, defendant contends the judge erred in imputing income to him because there was no finding he was voluntarily unemployed without just cause. He argues the documentation supporting his motion indicated he had diligently sought employment in the home health and other fields. Defendant also contends the judge failed to consider the factors set forth in the Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A (2013), and failed to make factual findings and legal conclusions as required by Rule 1:7-4(a).
We review the trial judge's decision to impute income under an abuse-of-discretion standard. Ibrahim v. Aziz, 402 N.J. Super. 205, 210 (App. Div. 2008). "An abuse of discretion 'arises when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
When determining whether to impute income and the amount of such income, the child support guidelines instruct "that the trial court must first determine whether the parent has just cause to be voluntarily unemployed." Caplan v. Caplan, 182 N.J. 250, 268 (2005). In making that decision, the trial court should consider the following factors:
(1) what the employment status and earning capacity of that parent would have been if the family had remained intact or would have formed,
(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 and child-care alternatives.
[Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2550-51 (2013).]
Here, underlying the judge's conclusion that defendant failed to seek employment outside the home health care field was the implicit finding that defendant's unemployment was voluntary. In reaching this conclusion, however, the judge made no factual findings regarding defendant's documentation indicating he may have sought employment in other fields. We are unable to discern from those documents whether defendant is correct, as they require explanation. In addition, the judge made a critical credibility about defendant's proofs without conducting a plenary hearing. A plenary hearing is necessary where, such as here, there are genuine issues of fact as to whether defendant's unemployment was voluntary and without just cause, Lepis v. Lepis, 83 N.J. 139, 159 (1980).
Accordingly, we reverse the judge's decision to impute income to defendant and remand for a plenary hearing on this issue. On remand, the judge shall consider the factors set forth in the Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A (2013), and make factual findings and legal conclusions. R. 1:7-4(a).
II.
Defendant contends that the judge erred in deducting child-care costs from plaintiff's imputed income before recalculating child support. He also contends that the record does not support the $9000 deduction.
We disagree with defendant's first contention. "When imputing income to a parent who is caring for young children, the parent's income share of child-care costs necessary to allow that person to work outside the home shall be deducted from the imputed income." Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A. cmt. 12 (2013) (emphasis added). Accordingly, the judge was correct to deduct child-care costs from plaintiff's imputed income before recalculating child support. However, the judge made no factual findings as to how he arrived at $9000 as the cost plaintiff would incur for child care if she worked full-time. We, thus, affirm the decision to deduct child-care costs from plaintiff's imputed income, but reverse the $9000 deduction and remand for reconsideration of and factual findings and legal conclusions relating to the child-care costs.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION