Opinion
DOCKET NO. A-4716-11T3
09-10-2015
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Accurso.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 second remand to the Family Part to make factual findings and explain its decision to reduce defendant's alimony payment on the parties' cross-motions for post-judgment relief. The background of this matter is set forth in our original opinion, which we incorporate here by reference. See Kaller v. Gogan, No. A-4716-11 (App. Div. Jan. 22, 2014).
On the first remand, which followed the trial court reducing defendant's alimony payment to $175 per week following a plenary hearing, we asked the court to explain how it arrived at its conclusion that plaintiff earned only $12,000 for 2011 when she reported an average gross weekly income of $401.19. Kaller v. Gogan, No. A-4716-11 (App. Div. Jan. 22, 2014) (slip op. at 3). On remand, the judge further reduced defendant's alimony payment to $164 per week, explaining that it was putting the parties "in equipoise in that each party will net $368.00 per week based upon [p]laintiff's earnings of $12,000.00 per year and [d]efendant's earnings of $32,000.00 per year."
Although we now understood what the judge was attempting to do by his award, we were still unable to discern why the court concluded plaintiff earned only $12,000 per year. Accordingly, we again remanded the case to the Family Part with a specific direction that the court explain how it calculated her income and earnings for 2012.
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.
[Kaller v. Gogan, No. A-4716-11 (App. Div. Mar. 4, 2015) (slip op. at 4).]
On the second remand the Family Part increased defendant's alimony payment to $167 per week. The trial court explained that instead of relying on plaintiff's average gross weekly income amount, it found her gross year-to-date earnings, which were $8,976.34 on September 30, 2011, to be the "more credible" figure in her Case Information Statement for estimating her 2011 income based on the testimony "because it included a tally of every paystub of that time period."
Given the amount of time that had passed since the court first considered the matter, the judge had access to plaintiff's 2011 year-end pay stubs, which allowed him to conclude that plaintiff's "[t]otal [g]ross [i]ncome for 2011 was therefore $11,739.47." The court concluded that its "determination that [p]laintiff's income for 2011 was $12,000 was off by 2% and thus the present order reflects the [d]efendant's amended alimony obligation of $167 per week." Consistent with its prior orders, the modification was made effective July 8, 2011, and included an additional $10 per week in arrears.
While the judge made clear how he arrived at the $11,739.47 figure for plaintiff's wages, we are at a loss to understand how that income figure results in a weekly alimony award of $167. Adding the parties' incomes ($11,739.47 plus $32,000) gives a combined income of $43,739.47, the midpoint of which is $21,869.74. Subtracting plaintiff's income of $11,739.47, leaves $10,130.26, which divided by 52 weeks would equal a weekly alimony award of $195 not $167. In short, we cannot make the math work.
The long delay allowed provision of plaintiff's 2011 tax return, and the trial court appears to have used it for her actual 2011 earnings. The court appears to have combined her primary income ($11,198) (line 7, wages, salaries, tips, etc.) and private-duty income ($3472) (line 21, other income) to arrive at a 2011 income of $14,670, which, when combined with defendant's uncontested $32,000 income results in a combined income of $46,670. Using the same formula, the midpoint of the parties' combined income is $23,335. Subtracting plaintiff's income of $14,670 leaves a shortfall of $8665. Dividing that figure by 52 weeks results in a weekly award of $167.
Defendant continues to argue, however, that the trial court erred in failing to have included in its calculation plaintiff's private-duty income (which judging from our calculations the trial court has already included), short-term disability, unearned income from investments, social security benefits, and Medicaid benefits.
The trial court determined that plaintiff's gross year-to-date earnings were the "more credible" figure in her Case Information Statement for estimating her 2011 income based on the testimony at the plenary hearing. We accept and rely upon those findings. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). In light of the trial court's determination that the parties should be placed in financial equipoise based on their 2011 incomes, we agree with defendant that its calculation was incorrect in that it included certain unearned income sources but failed to include others, notably her dividends and short-term disability payments. The failure to include those sources is not de minimus as it results in a significant decrease in the award.
While we would ordinarily remand for the trial court to correct the error, the record is finally adequate to permit us to exercise original jurisdiction to bring this protracted matter to a close and avoid the undue cost or expense of a third remand. See Accardi v. Accardi, 369 N.J. Super. 75, 91-92 (App. Div. 2004) (exercising original jurisdiction to avoid "perpetual litigation"); R. 2:10-5.
Plaintiff's 2011 tax return includes $816 in dividends, and her case information statement reported $2746 in short-term disability payments. When those sources of unearned income are added to her primary income ($11,198) and private-duty income ($3472) as reported on her 2011 tax return, it equals $18,232 in 2011 income. The parties agree that defendant's 2011 income was $32,000. These figures result in an award of $132 per week. This award will satisfy the trial court's stated goal of placing the parties in financial equipoise based on their 2011 incomes.
Plaintiff has never disputed the finding that defendant's 2011 income is $32,000, including $124 in unearned income as of October 31, 2011.
Combining the parties' income results in $50,232, the midpoint of which is $25,116. Given plaintiff's $18,232 income, defendant must pay her $6884 to make up the difference, which, assuming a 52-week year, results in a $132 weekly award. --------
Though defendant argues that plaintiff's social security and Medicare benefits should also be included in the calculation, the trial court sought only to place the parties in financial equipoise based on their 2011 incomes. Plaintiff received no social security benefits in 2011 and Medicare is not a source of income, thus they are not included.
We remand to the Family Part for the exclusive purpose of entering an order implementing our decision, that defendant shall pay plaintiff weekly alimony in the amount of $132 per week. Given the unduly long delay in resolving this matter, we exercise our equitable discretion in making the new award effective as of the date of this opinion. The trial court's order as to weekly arrears shall remain in effect. Any further modification will have to be by a new motion.
Remanded solely for entry of an implementing order 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