August 3, 2007
DEBORAH BUSH, PLAINTIFF-RESPONDENT,
JASON BUSH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-451-05X.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 17, 2007
Before Judges C.S. Fisher and Grall.
Defendant Jason Bush appeals certain aspects of a final judgment of divorce, entered after a non-jury trial, and an order, entered with regard to a post-judgment motion for reconsideration, which modified the judgment. We conclude that the judge's findings are well-supported by the credible evidence adduced during the trial, and affirm.
Following the completion of the trial, Judge John L. Call, Jr. rendered a thorough written decision. We briefly outline some of the facts contained in that decision.
The parties were married in 1978. Two children were born of the marriage -- one is emancipated, the other is not. Defendant's employment with Budd Company, which began in 1974, four years before the parties married, ended in 2004, not long before the divorce proceedings commenced. At the time of trial, defendant was 53 years old and in good health.
Judge Call found that defendant had not made a good faith effort to replace the loss of income after his relationship with Budd ended in 2004. As a result, the judge based the alimony and child support awards by imputing income to defendant, which, when added to certain other income, totaled $53,733 per annum. Specifically, this figure was based on imputed income to defendant in the amount of $36,933 per annum, which was his income while working for Budd in 2000 before it began to decrease in the following years due to downsizing, together with defendant's passive rental income, and income derived from defendant's so-called flea market activities. In light of these findings, a final judgment of divorce was entered on February 8, 2006, which ordered defendant to pay plaintiff $200 per week in permanent alimony, and $100 per week in child support.
In addition, the judge rejected defendant's argument that certain parcels of real property, held in his name alone, were not subject to equitable distribution, and found that defendant's claim that he paid for repairs to structures on these parcels lacked credibility. The judge also ordered defendant to pay plaintiff $22,417.58 in counsel fees.
Following the entry of judgment, defendant moved for reconsideration. Judge Call reduced the amount of income attributed to defendant by eliminating the flea market income of $8,800 per year. As a result, an order, which contained the judge's written findings, was entered on March 16, 2006. By way of this order, the judge reduced the alimony award to $180 per week and the child support to $80 per week, among other things.
Defendant appealed, raising the following arguments for our consideration:
I. THE LOWER COURT ABUSED ITS DISCRETION WHEN IT IMPUTED INCOME TO THE DEFENDANT.
II. THE LOWER COURT ABUSED ITS DISCRETION WHEN IT AWARDED ALIMONY TO PLAINTIFF.
III. THE LOWER COURT ERRED IN ITS CALCULATION OF CHILD SUPPORT.
IV. THE LOWER COURT ERRED BY GOING AGAINST THE WEIGHT OF THE EVIDENCE WHEN IT REFUSED TO GIVE PLAINTIFF CREDIT FOR THE PENDENTE LITE IMPROVEMENTS MADE TO MARITAL ASSETS.
V. THE LOWER COURT ABUSED ITS DISCRETION WHEN IT AWARDED COUNSEL FEES FOR THE ENTIRE TRIAL PREPARATION AND TRIAL WHEN EITHER PARTY HAD A RIGHT TO LITIGATE THE CASE TO VERDICT IRRESPECTIVE OF ANY FAILURE TO DISCLOSE ASSETS.
We find insufficient merit in defendant's arguments to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and affirm substantially for the reasons set forth in Judge Call's thorough written decisions of January 18, 2006 and March 16, 2006. We add only the following comments regarding Point I.
We do not disturb the factual findings of a trial judge in a non-jury matter unless we are "convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare v. Cesare, 154 N.J. 394, 412 (1998). After carefully reviewing the record in light of the issues raised, we are satisfied that Judge Call's findings were well-supported by evidence that he was entitled to find credible.
The facts reveal that defendant's income was impacted by his loss of employment with Budd. This event, as the judge properly held, did not bar the setting of an appropriate level of spousal or child support. It merely required that the judge base the support awards not on defendant's actual earnings but on what he was capable of earning. That is, the judge correctly recognized that when an obligor is voluntarily unemployed or underemployed, income may be imputed for purposes of determining a just and equitable level of support. Caplan v. Caplan, 182 N.J. 250, 268-69 (2005).
Judge Call correctly concluded that the circumstances warranted the imputation of income and carefully analyzed the evidence and made credibility findings in quantifying an appropriate amount. He found that defendant had taken courses in computer programming, but made no legitimate attempt at securing employment in that industry. Instead, the judge found that defendant was content with the income he received through the sale of computer parts at flea markets, together with his rental income, and had failed to make a good faith effort to seek income more in line with what he had earned during the course of the marriage. The judge correctly concluded that defendant was underemployed and that an imputation of income, based upon defendant's earnings while employed at Budd, was appropriate. Defendant has not provided any legitimate basis for our second guessing of that determinations.
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