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Lough v. Elkaryoney

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 29, 2007

DANIELLE LOUGH, PLAINTIFF-RESPONDENT,
v.
SALAH ELKARYONEY, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, FM-16-623-00.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 28, 2007

Before Judges Lefelt and Sapp-Peterson.

Defendant Salah Elkaryoney appeals from the trial judge's order denying his motion to reduce child support which he filed following the death of one of his three minor children. We reverse.

The parties were married on April 4, 1992. Three children were born of the marriage: Islam, born June 17, 1993; Ameer, born March 29, 1995; and Kareem, born May 22, 1996. The parties divorced on March 21, 2001, but there have been a number of post-judgment matters before the court. On November 18, 2005, defendant, pro se, filed a motion to decrease child support. On January 13, 2006, the court conducted a hearing on the motion and reduced defendant's monthly child support obligation from $600 to $535. The court arrived at this figure based upon "$425, gross per week of the defendant, which is halfway between what [defendant] said he was making at 400 and 450." Defendant attempted to explain to the court that the $400 to $450 was a gross amount based upon his self-employed status:

[DEFENDANT]: My adjusted gross income would come up . . . [to] $250 a week --

THE COURT: How about --

[DEFENDANT]: -- not 450 a week.

THE COURT: -- how about your net income is 346 after taxes, how do you like that?

[DEFENDANT]: What that?

THE COURT: 346 after taxes, right here.

[DEFENDANT]: 346, the adjusted gross income?

The court reiterated that defendant's child support obligation would be fixed at $537 per month and did not, as defendant attempted to urge, take into consideration operating expenses defendant incurred as a self-employed taxi driver, including gas, oil, repairs, license, and the taxi medallion rental fee. Defendant claims the taxi medallion expense represents his largest operating cost. In addition, although the court indicated the order would be retroactive to November 18, 2005, the date defendant filed his motion, the final order dated January 13, 2006, did not provide for retroactivity.

On January 23, 2006, defendant filed another post-judgment motion seeking, among other relief, reconsideration of the January 13, 2006 order. Although defendant filed this motion pro se, he appeared at the March 3, 2006 hearing represented by counsel, who argued that defendant's gross income, as a self-employed taxi driver, is different from the gross income of an employee. The court acknowledged that there "may be" differences between the two types of income, but indicated that he did not believe, as defendant posited in the previous hearing, that defendant's adjusted gross income was $7,000. Defendant appealed to this court.

Defendant raises the following points for our consideration:

POINT I

THE COURT ERRED IN CALCULATING THE DEFENDANT-APPELLANT'S DOWNWARD MODIFICATION WHEN IT USED DEFENDANT-APPELLANT'S GROSS INCOME FROM HIS SOLE PROPRIETORSHIP.

POINT II

THE COURT ERRED IN FAILING TO IMPUTE THE PLAINTIFF'S INCOME BASED ON VOLUNTARY UNEMPLOYMENT WITHOUT JUST CAUSE.

POINT III

THE COURT ERRED IN THE CALCULATION OF CHILD SUPPORT LEAVING NO SELF SUPPORTING RESERVE FOR THE DEFENDANT-APPELLANT IN ACCORDANCE WITH THE NEW JERSEY CHILD SUPPORT GUIDELINES.

Upon the appropriate showing of changed circumstances, a supporting spouse's obligation to pay child support may warrant re-evaluation. Lepis v. Lepis, 83 N.J. 139, 151 (1980). There is no dispute that defendant's circumstances changed as a result of the unfortunate death of one of his minor children. Nor is there any dispute that the court modified his child support obligation downward. Defendant's argument on appeal is that the court erred in calculating the downward modification and did not follow the child support guidelines. We agree.

Under current child support guidelines, income from self-employment or operation of a business is "gross receipts minus ordinary and necessary expenses required for self-employment or business operation." Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-B to R. 5:6A at 2243 (2007). When considering income of self-employed obligors, courts are directed to carefully review income and expenses and, in doing so, also consider those expenses the guidelines specifically exclude. Ibid.

In the present matter, the record does not indicate whether the motion judge considered defendant's expenses and then rejected them as unsupported by the record, exaggerated, and/or disallowed. Other than expressing disbelief for defendant's stated income, the judge made no other findings.

Rule 1:7-4(a) requires a court sitting without a jury to provide findings of fact and conclusions of law on "every motion decided by a written order that is appealable as of right." The trial judge has an obligation to "support its decision with adequate findings of fact." Cameco, Inc. v. Gedicke, 157 N.J. 504, 509 (1999); R. 1:7-4. The judge must "state clearly its factual findings and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 570 (1980).

Because the trial judge rendered no findings to support his conclusion that defendant's adjusted gross annual income was not $7,000, we vacate the order of January 13, 2006, and remand for further proceedings.

In light of our decision, we direct that upon remand, the court must also consider plaintiff's fair share of the child support obligation, as it is well-settled that each parent has a responsibility to share the costs of providing for his/her children while they remain unemancipated, Lynn v. Lynn, 165 N.J. Super. 328, 342-43 (App. Div.), certif. denied, 81 N.J. 52 (1979), even if this means imputing income to a parent who the court finds is voluntarily unemployed, Caplan v. Caplan, 182 N.J. 250, 268 (2005). Additionally, if the court is convinced that defendant's adjusted gross income and/or plaintiff's income, whether actual or imputed, is at or near the poverty level, the court must consider the "self-support reserve" provision of the guidelines which "attempts to ensure that the obligor has sufficient income to maintain a basic subsistence level. . . ." Capaccio v. Capaccio, 321 N.J. Super. 46, 55 n.12 (App. Div. 1999)

Vacated and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

20070329

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