On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-98-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Lihotz.
Plaintiff appeals from certain provisions of a final judgment of divorce (FJOD), which imputed income attributed to him to determine his obligation to pay limited duration alimony to defendant. We affirm the trial court's determination of imputed income, however, as stated below, we are constrained to reverse the trial court's determination of the amount and duration of alimony, and we remand for additional factfinding.
The facts relevant to the issues raised in plaintiff's appeal are taken from the trial record before the Family Part. Plaintiff, Nasi Ceca, now age thirty, and defendant, Arijeta Ceca, now age twenty-seven, were married on April 25, 1999. The parties have two children: one who is now seven, and the other who is now five. Plaintiff has a minor child from a prior relationship, who does not reside with him. In April or May 2005, the parties separated; defendant and the children remained in the former marital home and plaintiff moved to his parents' home. A final restraining order (FRO) issued under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to --35, was entered on May 5, 2005, in Arijeta Ceva v. Nasi Ceca, Docket No. FV-19-486-05.
Plaintiff filed a complaint for divorce based on extreme cruelty on August 25, 2005. Defendant filed a counterclaim for divorce also based on extreme cruelty on September 15, 2005. Trial was held on June 27 and June 28, 2006. The parties were the only witnesses. The trial judge issued an oral opinion at the conclusion of the evidence, and entered the FJOD on June 28, 2006. A written supplemental FJOD was filed on July 19, 2006.
During the marriage, plaintiff's principal employment was with Chilton Memorial Hospital where he worked as a fireman/ mechanic. His pay stub, dated June 10, 2006, showed a gross bi- weekly income of $1,652. Until sometime in 2004, plaintiff additionally worked thirty hours per week as a part-time driver for QSP Pharmaceuticals.
Plaintiff testified that he and his brother started Mountain View Tree Service, LLC (Mountain View) in 2001. During his ownership, plaintiff stated he and his brother worked on Saturdays and earned approximately $300-$400 per month. Plaintiff introduced the corporate income tax returns that reflected the gross profit of the business as: 2003-$19,296; 2004-$34,446; and 2005-$72,716.
In 2004, plaintiff explained that financial constraints necessitated that he sell his one-half interest in the business to his brother for $100 plus his brother's assumption of the $6000 corporate debt. Plaintiff acknowledged that in the summer 2005, he "picked up some days" working for his brother and was paid $100 per day.
Defendant was not employed outside the home during the marriage. She commenced employment as a sales clerk with Helzberg Diamonds in the last week of December 2005, and earned a bi-weekly gross income of approximately $1100.
At trial, defendant testified that she continued to see plaintiff riding with his brother in the Mountain View trucks. Defendant believed plaintiff never sold his interest in the business because he loved the work and had told her the business generated about $1000 per day. To support her position, defendant presented documents she averred were found in the former marital home after the parties had separated. The documents were Mountain View estimate sheets from for periods in 2003, 2004, and the first quarter of 2005. The record provided on appeal only contains invoices from 2004. Over eighty of these invoices were marked "paid in full" and stated that a cash payment was received. Defendant testified that the total gross receipts reflected by the estimates/invoices for a portion of the years presented were: 2003-$90,603; 2004-$196,714; and 2005-$34,498.
The trial judge expressed his factual findings on this issue, as follows:
[T]hese documents were used as both estimates and invoices and all of these documents have notations on them that they were either paid in full or that ...