August 31, 2007
SHARON MUNIZ, PLAINTIFF-RESPONDENT,
AXEL BONILLA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, FD-16-1990-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 17, 2007
Before Judges R. B. Coleman and Sapp-Peterson.
Defendant Axel Bonilla appeals from an order of June 23, 2006, increasing his weekly child support obligation from $87 to $168. We affirm.
The parties, who were never married, have a daughter, born June 2, 2000. Defendant also pays child support for two other children from his previous marriage. As a result of plaintiff's motion for child support, which was filed on April 30, 2001, an order was entered directing defendant to pay weekly child support in the amount of $77. On March 22, 2006, plaintiff filed a motion to increase defendant's weekly child support obligation. At the time the motion was filed, defendant's obligation, due to cost of living adjustments, had increased to $87.
The court conducted a hearing over two non-consecutive days. At the conclusion of the first hearing, the court directed defendant to submit the 2003 Case Information Statement (CIS) submitted in connection with his divorce, as well as his 2004 tax return and 1099 from his employer.
The hearing resumed on June 19, 2006. Defendant supplied copies of his 2003 and 2004 tax returns along with copies of his 1099. He did not supply the 2003 CIS. His attorney represented that defendant could not locate it but did present a 2000 CIS defendant completed as part of a pendente lite application. In 2000, defendant's net income was approximately $150,000.
Defendant testified that he was experienced in the real estate business and was currently working as a mortgage broker. He indicated that his income was dramatically reduced due to the loss of his business following legal problems. These legal problems eventually led to defendant's conviction for mail fraud and he was awaiting sentencing at the time of the hearing. According to defendant, his current income was approximately $42,000.
At the conclusion of the hearing, the judge determined that defendant was underemployed and imputed an additional $21,350 in income to defendant and ordered defendant to pay $168 in weekly child support to plaintiff. The judge was of the opinion that defendant's 2000 income had been inflated and was part of defendant's ill-gotten gains that ultimately resulted in his indictment by a federal grand jury and plea to mail fraud. He found that defendant's "plight" had been "brought on by himself, his own activities, and because of his activities, he was under-employed[,] [n]ot to the extent of $150,000 though." The judge also found that based upon the United States Department of Labor, Bureau of Labor Statistics, the closest occupation that he could find to a mortgage broker was a loan officer:
I have examined the U.S. Department of . . . Bureau of Labor Statistics, occupational and employment and wage estimates for New Jersey dated May 2005[,] [a]nd the closest category I could find to a mortgage officer is a loan officer[,] [a]nd the average income for a loan officer . . . in New Jersey is $63,350. The Court deems that the Defendant is under-employed, not making what he should because of circumstances brought on by himself and I'm going to use that income as his income base for the guideline calculation.
That computes to $1,218 per week gross income pursuant to the guidelines. The amount of child support is increased to $168 per week and retroactive to March 20th, 2006.
On appeal defendant raises the following points for our consideration:
THERE HAVE BEEN NO SUBSTANTIAL CHANGES IN CIRCUMSTANCE OVER THE LAST FIVE YEARS WHICH JUSTIFY AN UPWARD MODIFICATION OF DEFENDANT'S CHILD SUPPORT OBLIGATION.
IMPUTATION OF INCOME WAS IMPROPER BECAUSE DEFENDANT WAS NOT VOLUNTARILY UNDEREMPLOYED.
A. THE COURT'S DETERMINATION THAT DEFENDANT WAS AT LEAST IN PART "UNDEREMPLOYED" BECAUSE OF HIS PRIOR ILLICIT BUSINESS ACTIVITIES IS CONTRARY TO THE COURT'S OTHER FINDING THAT DEFENDANT'S INCOME FOR THE YEAR 2000 WAS ARTIFICIALLY INFLATED BECAUSE OF THOSE ACTIVITIES.
B. MR. BONILLA IS STILL EMPLOYED AS A MORTGAGE BROKER.
THE AMOUNT OF INCOME IMPUTED WAS UNREASONABLE AND UNSUPPORTED BY THE EVIDENCE.
A. THE CASE MUST BE REMANDED TO THE TRIAL LEVEL TO DETERMINE DEFENDANT'S EARNING POTENTIAL.
"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Such deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact[-]finding." Cesare, supra, 154 N.J. at 413. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). It is against these standards that we review the decision below.
It is well-settled that orders directing payment of child support are always subject to modification "as the circumstances of the parties and the nature of the case" require. N.J.S.A. 2A:34-23. Lepis v. Lepis, 83 N.J. 139 (1980). The burden is on the party seeking modification to show "such 'changed circumstances' as would warrant relief from" the current obligation. Id. at 157. Changed circumstances that warrant modification include an increase in the obligor's income. Id. at 151. An increase in income may result from a court's determination that the obligor is voluntarily underemployed.
See Dorfman v. Dorfman, 351 N.J. Super. 511, 516 (App. Div. 1998); Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2270 (2007). Thus, current earnings are not the sole criterion to establish a party's obligation for support. See Lynn v. Lynn, 165 N.J. Super. 328, 341 (App. Div.), certif. denied, 81 N.J. 52 (1979). The potential earning capacity of an individual, not his or her actual income, should be considered when determining the amount a supporting party must pay. Mowery v. Mowery, 38 N.J. Super. 92, 105 (App. Div.1955), certif. denied, 20 N.J. 307 (1956). Thus, the fairness of a child support award is dependent on an accurate assessment of a parent's net income. Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2270 (2007).
Here, the evidence revealed that defendant has extensive experience in the real estate business. He agreed, as part of his divorce in 2004, to pay child support in an amount that far exceeded what he would have been obligated to pay under the Child Support Guidelines, based upon an income of $42,000. Indeed the court expressed concern over "what income was used to calculate in 2004 that large amount" when defendant was also under an obligation to pay child support to plaintiff. In addition, the Bureau of Labor Statistics salary for a comparable position in the banking industry, an industry which the court characterized as conservative in terms of compensation at the loan officer level, was $63,500.
We are satisfied that there is substantial, credible evidence in the record to support the judge's determination that defendant was underemployed, warranting an upward modification of child support and that the imputed income of $63,000 is reasonably supported by competent, credible evidence found in the U.S. Bureau of Labor Statistics and defendant's extensive experience in the real estate industry.
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