August 2, 2007
KERRI A. CAPUTA, PLAINTIFF-RESPONDENT,
DAVID A. CAPUTA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-646-98.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 17, 2007
Before Judges Fuentes and Graves.
Defendant David A. Caputo appeals from a post-judgment Family Part order dated September 15, 2006, denying his motion to reduce his child support payments and his child support arrears. After reviewing the record and the applicable law in light of the contentions advanced on appeal, we affirm.
On appeal, defendant presents the following arguments:
THE TRIAL COURT ERRED IN FAILING TO REVIEW CHILD SUPPORT AND MODIFY SAME IN ACCORDANCE WITH CURRENT INCOMES.
CHILD SUPPORT ARREARS OF $36,010 SHOULD BE VACATED OR, IN THE ALTERNATIVE, DEFENDANT SHOULD BE CREDITED FOR THE EXPENSES HE PAID AND ECONOMIC BENEFITS HE CONCEDED AS THE PARTIES MUTUALLY MODIFIED THEIR AGREEMENT.
The parties have three children: Matthew, born December 31, 1992, is fourteen; Allyson, born July 2, 1994, is thirteen; and Kristen, born September 10, 1996, is ten years old. Pursuant to their final judgment of divorce, dated June 21, 1999, the parties share joint legal custody of the children. The divorce judgment also contains the following provisions regarding parenting time and child support:
2. Custodial Time. The Plaintiff and Defendant shall have custodial time with the children on an alternating week-by-week basis. Both parties will also have complete telephone access to the children and they shall have time with the children during the week in the evenings as may be mutually agreed. Based upon the parties' anticipated proximity and distance between their respective residences, the parties will continue to share transportation as they have heretofore done. The holidays will be worked out between the parties, and, if the parties are unable to agree, then this issue may be brought before the [c]court for a judicial determination.
B. CHILD SUPPORT AND CHILD SUPPORT RELATED ISSUES
1. Child Support. Effective the first Friday following Plaintiff having vacated the marital residence, Defendant shall pay child support in the sum of $130 every week, allocated equally between the three minor children. The child support is based upon the Child Support Guidelines, more specifically, Plaintiff's gross annual income of $36,000 and income imputed to Defendant of $62,000. The child support shall be paid on a weekly basis, and, in the event that two weekly payments are missed, Plaintiff shall have the right to have all future child support payments made by way of a wage execution through the Gloucester County Probation Department. Notwithstanding the foregoing, in the event Plaintiff requests Defendant to take care of and/or watch the children for more than a week of Plaintiff's regularly scheduled custodial time, then Defendant shall not be obligated to pay Plaintiff support for that specific period.
Defendant's initial motion for modification of child support was denied on April 3, 2006. In his certification dated February 2, 2006, defendant stated he was employed at Centennial Productions, Inc., earning "a weekly wage of $300.00 per week. My anticipated yearly earnings for the calendar year 2006 is $15,600.00." However, approximately six months later, on August 3, 2006, defendant certified he was receiving a salary of $41,600 per year from the same employer----Centennial Productions: 16. Based on the most recent order [dated April 3, 2006], I continue to pay $130.00 per week, but the [c]court added an additional $31.00 per week for medical insurance contribution, and $50.00 per week toward arrears. This is a total weekly obligation of $211.00.
19. Attached as Exhibit F are my tax returns for the year 2000, 2001, and 2005. As the [c]court can see, I have earned an average of $26,330 in income over the last five years. In 2005, I only earned a total of $10,950.00. This was raised as a strong concern for the court during the last hearing, and I understand that the court has reservations. The simple truth, however, is that I am in internet sales. I am not a computer programmer. My education and degree are in marketing. Within the technology industry, fluctuations like this are common. I am not hiding income or getting paid on the side. This is what I earn and what I have been able to earn in the past. The information and documentation are clear.
20. I am currently employed by Centennial Productions. They are a company based in Connecticut, which sells hearing amplifiers and homeopathic supplements. My official job title is website manager, and my job is to market and sell their products over the internet. I work from home creating web pages and other marketing devices for their products. My salary is $41,600.00 per year ($800.00 per week $300 in Salary and currently $500 draw against sales). I do not receive any bonuses or commissions. The owner of the company is Joseph England, who is indeed a friend. He was able to provide me with this job, but is not providing me with any additional income or "under the table" revenue. Attached, as Exhibit G is a letter from my employer evidencing all of the above, which he has notarized and certified to.
21. It is important to stress that at the time of the entry of the Final Judgment I was not actually earning $62,000.00. There was a dispute raised back then by the plaintiff as to my ability to earn. In order to avoid a trial, I agreed to accept the imputed $62,000 amount. I am currently earning $41,600.00 per year. Child support should be based on this figure and if the plaintiff seeks to prove that I am somehow capable of earning in addition to that amount, I suppose she is free to do so through the use of experts or other means. I will be happy to provide whatever other documentation she seeks and submit to whatever evaluations she feels are appropriate. The bottom line is that this is what I am capable of earning at this time, while maintaining my flexibility to care for the children by working from home.
In opposition to defendant's motion, plaintiff certified as follows:
In the Defendant's Certification filed in support of his motion which was heard on April 3, 2006, he certified that he only made $10,950.00 in 2005 while failing to mention his substantial earnings from prior years. Now that the Defendant has provided his 2000 and 2001 tax returns, it is clear that the income imputed to him in 1999, at the time of our Final Divorce hearing, was actually lower than the Defendant's actual earning capacity. As set forth on the Defendant's 2000 tax return, he grossed $75,000.00 working for Telemarketing Services Inc. in Vineland, New Jersey. Similarly, in 2001, the Defendant grossed $72,000.00 a year from sales (and thus, may not have been for the entire year according to the Defendant's certification). For the Defendant to now claim that he is incapable of earning at least that level of income is insulting.
27. At the time our Final Judgment of Divorce was entered, and child support was set at $130,00 per week, the Defendant was exercising parenting time approximately one half of the time and had income imputed to him of $62,000.00 a year. The Defendant is still exercising parenting time with the children approximately half of the time and he has an earning capacity well in excess of $62,000.00 a year. The Defendant should not be rewarded by way of a reduction in his child support due to his voluntary decision to become under-employed. Mr. Caputa has clearly shown from his prior work experience that he has the capacity to earn at least $75,000.00. . . .
28. The [c]court addressed the Defendant's request for a modification of child support on April 3, 2006[,] and denied same. The Defendant did not take an appeal of the Judge's decision. The [c]court found that there was no change of circumstances and continued the Defendant's support obligation of $130.00 per week plus added one-half of the cost for me maintaining medical insurance for the children, thus bringing the Defendant's child support obligation to $161.00 a week. The [c]court also ordered the Defendant to pay an additional $50.00 per week towards arrears which the Defendant has unilaterally ceased doing.
In denying defendant's second motion to reduce his child support payments, the trial court stated it was "not satisfied with [what was] shown the last time it was heard and what's been shown now." And the court explained:
THE COURT: I wasn't going to impute . . . the 80 because, frankly, I'm satisfied with the numbers as they exist and I'll tell you why.
It seems to me that if we review these things on a three-month basis, the system is fraught with an overburdening situation as to reallocating who didn't have a little extra overtime in the last month or so.
He's developing his business, that's okay. He's got a proven track record . . . . So, over the long haul -- and the long haul to me is like a year or two, not a couple of months, you know, we can always review these things, but I'm not satisfied at this point that he's shown any reason why . . . his income should have dropped so dramatically . . . .
We agree defendant failed to demonstrate a sufficient change in circumstances to warrant a reduction in his child support obligation. At the outset, we note defendant apparently failed to provide the trial court with a current Case Information Statement (CIS) together with a copy of any CIS filed prior to the entry of the divorce judgment, as required by R. 5:5-4. Moreover, defendant certified he is "in internet sales," and he receives "$500 draw against sales." Thus, it is not unreasonable to assume there is a relationship between defendant's salary and the sales he generates. We also deem it significant that defendant failed to explain the circumstances that resulted in the dramatic increase in his weekly salary---- from $300 in February 2006 to $800 in August 2006. In light of these circumstances, it was entirely appropriate for the trial court to consider defendant's earning capacity "over the long haul." See Storey v. Storey, 373 N.J. Super. 464, 474-75 (App. Div. 2004) ("A trial judge's decision to impute income of a specified amount will not be overturned unless the underlying findings are inconsistent with or unsupported by competent evidence."). And defendant's income tax returns for 2000 and 2001 substantiate the trial court's determination that defendant has a "proven track record." Thus, we are satisfied the trial court's findings and conclusions are supported by substantial credible evidence in the record. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974).
In denying defendant's motion to either eliminate or reduce his child support arrears, the trial court reasoned:
What I have in front of me is an agreement, it sets forth an amount, that's the deal. If somebody else wants to make gifts or donations, or pay a little extra money, that's okay, they can do that, but it doesn't negate their obligation.
I'm not going to get behind the agreement, I'm not going to guess at what their motivation might have been. He might have thought that he was doing it in lieu of child support, but that's not what the agreement says.
I don't know what their agreement was outside of the agreement that's printed, that everybody knows is their obligation, so that's where I'm going with that.
Again, we perceive no abuse of discretion or reversible error. It is fundamental that the right to child support belongs to the child and may not be waived by a custodial parent. Pascale v. Pascale, 140 N.J. 583, 591 (1995); J.S. v. L.S., 389 N.J. Super. 200, 205 (App. Div. 2006); Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993).
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