On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FD-13-122-95.
Before Judges Eichen, Collester and Parker.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant Christopher Tash appeals from an order adjudicating him in violation of litigant's rights for failing to provide wage documentation to plaintiffs' counsel; requiring him to pay a child support obligation of $164 per week for two children; fixing arrears in child support in the amount of $10,000, payable at $36 per week; affixing a wage garnishment for $164 per week; and payment of counsel fees for plaintiffs in the sum of $700.
Plaintiffs, David J. Tash and Gail Tash, are the natural father and step-mother of defendant, Christopher Tash. Living with plaintiffs are three children: Desiree Tash, born September 9, 1986, Christopher Tash, Jr., born June 26, 1989, and Alexandria Haley, born August 12, 1992. The defendant, Christopher Tash, is the father of Christopher, Jr. and Desiree Tash. The father of the youngest child, Alexandria Haley, has never been identified. The children's mother, Desiree Haley, was murdered in September 1994. Defendant was incarcerated at the time in a New Jersey prison where he remained until his release in August 1996. The plaintiffs took physical custody of all three children after Desiree Haley's death. As a result plaintiffs receive the social security death benefits for the children on account of the mother's death in the amount of $272 per month per child.
Defendant filed a complaint for custody of his two children in late 1999. The case was referred for mandatory mediation on issues of custody, parenting, and child support. After mediation was unsuccessful, plaintiff Gail Tash filed an application in the Monmouth County Family Intake office to terminate visitation and to compel defendant to pay child support.
A hearing was conducted on December 23, 1999, as a result of which the hearing judge issued a temporary order for the children to remain in plaintiffs' custody and for defendant to have visitation with his son and, to a limited extent, his daughter. The order also directed a custody investigation by the Freehold Pathology Group who were to submit a custody and visitation assessment to the court. A plenary hearing was scheduled.
The hearing was not held until December 1, 2000, almost a year following the entry of the temporary order. After the hearing began, a settlement was reached as to all custody and parenting issues, providing that custody was to remain with the plaintiffs and affording visitation for defendant. There was no resolution of child support.
Prior to the hearing, plaintiffs' attorney served a notice for defendant to produce wage documentation. However, the documents were not produced, and the hearing judge orally directed defendant to submit them to plaintiffs' attorney within ten days. When the documents were again not produced, plaintiffs filed a motion to adjudicate defendant in violation of litigant's rights and for the following: (1) production of a case information statement including a copy of defendant's 1999 tax return, W-2 forms and certification as to his 2000 income with pay stubs; (2) fixing defendant's child support obligation "effective November 29, 1999, the date of which plaintiffs' applied for support"; (3) settling resulting arrears; (4) reducing the arrears to judgment; and (5) counsel fees for the application. In response defendant produced two pay stubs for the year 2000, unemployment claim forms for one week in 2000 and one week in 2001 and W-2 forms for the years 1998, 1999 and 2000.
Defendant stated he worked as a roofer and was paid union wages of $27.22 per hour. According to the report of the psychologist who interviewed him, defendant claimed he worked forty to sixty hours per week depending on the project, which would translate to an annual gross income of about $49,000. On the return date of plaintiff's motion defendant said that work was available to him only part of the year and that his gross wages for the year 2000 was only $20,299.36.
The hearing judge derived a support figure for each child by first calculating the child support guidelines at defendant's stated income of $20,000, which resulted in $111 per week. He then imputed income to the defendant in the amount of $45,000, based on wages of $27.22 per hour at forty hours per week for forty-five weeks. He applied the child support guidelines to the $45,000 figure, which yielded $216 per week. Adding the two child support figures together, one based on defendant's claim of gross income and the other on the imputed income, the judge then divided the sum in half, resulting in $164 per week.
The motion judge admitted that the child support figure was a compromise due to the limited information produced by the defendant despite several requests for his income verification, tax returns and a case information statement. Defendant correctly contends that the child support figure is inexact, but he must bear the blame. Both the guidelines and the case law of this State explicitly permit the imputation of income where earnings cannot be determined. Pressler, Current N.J. Court Rules, Appendix IX-A, "Considerations In Use Of Child Support Guidelines," subpart 12 (2002); Bencivenga v. Bencivenga, 254 N.J. Super. 328, 331-32 (App. Div. 1992); Mowery v. Mowery, 38 N.J. Super. 92, 102 (App. Div. 1955), certif. denied, 20 N.J. 307 (1956). The failure of the defendant to provide adequate financial information placed the hearing judge in a position where he had to examine the defendant's health and work abilities and realistically impute income. The judge made a conscientious effort to fairly apply the child support guidelines in a manner reflective not only of defendant's stated income but also income properly imputed to him. We find no abuse of discretion in the manner in which the child support was calculated or in the resulting support figure. See McDermott v. McDermott, 120 N.J. Super. 42, 44 (App. Div. 1972); Weitzman v. Weitzman, 228 N.J. Super. 346, 358 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989).
Defendant next argues that the hearing judge abused his discretion by giving retroactive effect to his determination of child support. He argues that when the custody order was entered he was not provided with notice as to plaintiffs' child support complaint and therefore there should be no retroactivity. However, the record reflects that Gail Tash applied to the Monmouth County Family Intake Service on November 29, 1999. It strains credulity for the defendant to say he had no knowledge of the application for support when he was obviously aware that he had a responsibility to support his children, at the very least as of the ...