On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-0739-01-X.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Fuentes.
Defendant Dennis Hartigan appeals from the order of the Family Part denying his post-judgment motion seeking termination of alimony and a reduction of his child support obligation, based on an alleged reduction of his income. Specifically, defendant argues that the motion judge erroneously imputed income to him based only on past earnings and did not have an adequate basis to conclude that defendant had the ability to pay the court-ordered support. We affirm.
Defendant is a fifty-eight-year-old man employed as a salesman. The parties were divorced on June 11, 2002, after a twenty-five-year marriage. The couple had four children, two of whom have reached the age of majority and been declared emancipated by the court. The youngest children, twin boys born on July 31, 1986, are full-time college students.
In 2003, shortly after the entry of the judgment of divorce, plaintiff filed an application for enforcement of court-ordered support. As a result, a judgment was entered against defendant reducing the arrears to judgment and lowering his annual support obligations to $20,000 for alimony, and $18,200 for child support. These reductions were made by the court after conducting a plenary hearing, in which the judge found that defendant had the capacity to earn an annual salary of $115,000, and plaintiff had the capacity to earn $36,000.
On September 9, 2005, defendant again requested a reduction in his support obligation based on a reduction in income. The court denied his application finding that a reduction in annual salary from $115,000 to $110,000 did not constitute changed circumstances within the meaning of Lepis v. Lepis, 83 N.J. 139, 157 (1980).
On the return date of the motion, Judge Covert accepted defendant's allegations that he was currently earning an annual salary of $70,000, a significant reduction from the $115,000 he was earning in September of 2005, when the court last reviewed this matter. Judge Covert nevertheless found that, given his age, educational and professional background, and his earnings history, defendant was voluntarily underemployed, thus artificially depressing his ability to earn income commensurate with his marketable skills.
The record supports the court's findings. As recently as 2004, defendant earned an annual salary of $113,769. At the time the latest motion came before the court in 2006, the factual basis for the reductions ordered by the court in September 2005 had not been in place for a sufficient length of time to warrant further modification. A salesperson's salary is, by definition, subject to fluctuation from year-to-year, indeed, from quarter-to-quarter. In this light, we are in full agreement with Judge Covert's observations:
[T]o say that people never reduce their income so they can't pay their alimony is a bit naïve, too. I mean, this just happened. It can happen quite often. I'm not saying necessarily that's what's happening here, but there's a certain energy, industriousness, aptitude and focus that must be applied to one's job to meet one's quota. And these are all factors very much within one's control, as opposed to involuntary market forces [which] are external factors that impact one's ability to earn income.
The factors cited above are all relevant and appropriate considerations in determining whether income should be imputed to defendant. Caplan v. Caplan, 182 N.J. 250, 265 (2005). In this light, we discern no legal basis to disturb Judge Covert's findings and ultimate conclusion.