October 1, 2007
CHERYL S. SHANKS, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
EDUARDO M. ARRIETA, DEFENDANT-APPELLANT/CROSS-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Camden County, FM-04-1072-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 11, 2007
Before Judges Axelrad and Sapp-Peterson.
Defendant Eduardo Arrieta appeals from the portion of the June 1, 2006 dual judgment of divorce setting his child support obligation for the parties' two-year-old son at $112 per week and declining to change the child's surname from Shanks to Arrieta. Defendant asserts the court erred by imputing a $38,000 per year income capacity to him without finding he was voluntarily underemployed and imputing only a 5% per year investment return on plaintiff's inheritance as additional income to her for calculating her child support obligation. Plaintiff Cheryl Shanks cross-appeals from the June 1, 2006 order denying her request for counsel fees, claiming the court's finding that defendant acted in good faith in pursuing litigation and lacked the ability to contribute to her fees was so manifestly unsupported by the competent, relevant, and reasonably credible evidence as to offend the interest of justice. We are not persuaded by either party's arguments and affirm substantially for the reasons articulated by Judge Solomon on the record on May l0 and 11, 2006 and June 1, 2006.
The parties were married on September 25, 2003. At the time, plaintiff resided with her two daughters from a prior marriage, ages eighteen and fifteen, who shared the surname "Shanks." Defendant, a Colombian citizen, was in a long-term relationship with a domestic partner, who was the brother of plaintiff's brother-in-law. Plaintiff apparently agreed to the marriage to assist defendant in becoming a United States citizen. After the marriage, defendant moved into plaintiff's residence in South Jersey, although he continued telephone contact and had weekend visits with his domestic partner in New York. Regardless, the parties engaged in sexual relations and when they separated on March 24, 2004, after six months of marriage, plaintiff was approximately four months pregnant. Defendant moved back to New York City and resumed full-time cohabitation with his domestic partner.
The parties' son was born in Pennsylvania on August 14, 2004. In each other's presence, both parents printed their names on the "Notice of Birth" form and plaintiff listed the child's surname as "Shanks." The Commonwealth of Pennsylvania later issued a birth certificate in that name.
In December 2004, defendant filed a complaint for custody in New Jersey. In January 2005, plaintiff filed a complaint for divorce in New Jersey and also sought sole custody of the parties' son. Defendant filed an answer and counterclaim, which included a request for sole custody, equitable distribution, enjoining plaintiff from relocating with their son to Oregon, and requesting that plaintiff be required to cooperate in the process to change their son's surname to Arrieta. Defendant then filed a motion in the Pennsylvania court system to amend the child's birth certificate to the surname Arrieta, which the court declined to act upon because of the pending New Jersey litigation.
By case management order, Dr. Gruen was directed to prepare a psychological and child custody/parenting plan evaluation. On March 30, 2006, Dr. Gruen testified in a hearing before Judge Solomon, recommending joint legal custody with residential custody remaining with plaintiff. On May 10, 2006, the parties appeared for trial on their divorce complaint and produced a stipulation of limited settlement, resolving all issues except the amount of support to be paid by defendant and the name change application. Judge Solomon conducted a trial on May 10 and 11, 2006. On May 11, 2006, the parties entered into a consent order for custody and parenting time. At the conclusion of the hearing, the court set defendant's child support obligation at $112 per week, declined to change the child's surname, and instructed plaintiff's counsel to submit a fee affidavit in support of her application for counsel fees. In a ruling on June 1, 2006, the court declined to impose counsel fees. The rulings were memorialized in orders of June 1, 2006, which are the subject of the appeal and cross-appeal.
Defendant requests we grant the name change petition because he contends it would be in the child's best interest to assume the paternal surname. He argues that plaintiff unilaterally gave their child the surname of her ex-husband rather than his surname or even her maiden name solely out of spite for him having scorned her and returned to his domestic partner. He argues the change of the child's surname to his will enhance that bond between them and will additionally force plaintiff to contend with defendant's presence in her life.
Our Supreme Court has held that the non-custodial parent or secondary caretaker "bears the burden of demonstrating by a preponderance of the evidence that despite the presumption favoring the custodial parent's [or secondary caretaker's] choice of name, the chosen surname is not in the best interests of the child." Gubernat v. Deremer, 140 N.J. 120, 145 (1995); see also Ronan v. Adely, 182 N.J. 103, 109 (2004). We are satisfied there is ample credible evidence in the record to support the trial court's determination enunciated under these principles that defendant did not meet his burden of proof and that it remains in the best interest of the parties' son to retain the surname of Shanks.
As Judge Solomon noted, the use of the surname Shanks was not an identification with plaintiff's ex-husband, but rather with plaintiff and her daughters, with whom the child lived, bonded and constituted a "family unit." The judge recognized there was some evidence offered by defendant that plaintiff used the name Arrieta from time to time. Following the marriage, she changed her name in her employer's payroll system to "Cheryl Shanks-Arrieta." She changed her name on her New Jersey drivers' license and Oregon nursing license renewal to "Cheryl S. Arrieta," the former which defendant admitted he requested for immigration purposes, the latter which he disputed. Plaintiff also used that name on a Honda vehicle registration. Derivately she was listed under the name "Cheryl Arrieta" by defendant as a secondary cardholder on his GM credit card. However, her passport, social security card, tax returns, real estate deed, mortgage documents, Pennsylvania and New Jersey nursing licenses, bank account, retirement account and health insurance cards all had the surname Shanks. Thus there was ample basis for the trial court's conclusion that it was "clear from the testimony of the Plaintiff and the evidence, which was not disputed by the Defendant in this regard, that she used the name Shanks, [which] has been her legal name up to the present time [and] that her children use the name Shanks . . . ."
The record reflects that plaintiff's selection of the Shanks surname for the child, in which defendant acquiesced, was not intended to eliminate any recognition of defendant as the father. He participated in the pre-birth classes, was present at birth, acknowledged paternity at birth, participated in the religious naming ceremony, and visited weekly at plaintiff's residence until January 2, 2005. Defendant then, however, had no contact with the child for almost a year. Based on Dr. Gruen's recommendations, the parties agreed upon a parenting plan that would ideally assist defendant in establishing a bond and building a relationship with his son. Having a relationship with both parents is clearly in the child's best interests; the record is devoid of evidence that retaining the chosen surname Shanks is not in his best interests. As the Court recognized in Gubernat, the "preservation of the paternal bond is not and should not be dependent on the retention of the paternal surname; nor is the paternal surname an indispensable element of the relationship between father and child." Gubernat v. Deremer, supra, 140 N.J. at 141.
Defendant testified at length about his educational background, occupational qualifications and skills, work history, immigration status, and current living arrangements. He completed a one-year program in graphic design and in l995, received a bachelors degree with a major in business administration and specialty in marketing and advertising. He had earned about $40,000 a year in 200l and 2002 as a marketing assistant at a company in New York that later went bankrupt and then did freelance work as a graphic designer at $25 an hour, and worked as a part-time and full-time bank teller in 2005 earning $19,418. Defendant claimed he sought employment as a graphic designer in southern New Jersey. As he did not produce his resume or cite any specific companies that he applied to, Judge Solomon classified his attempts to find a new job as a graphic design artist as "somewhat nebulous at best." Defendant also testified his internet, web-based computer skills as a graphic designer were transferable to other jobs but admitted he did not look "that hard" for any occupations outside of graphic designs. Most notably, defendant testified that his domestic partner paid for all of his shelter, transportation and personal expenses, and therefore conceded he did not need to worry about getting employment.
The judge concluded defendant was clearly qualified to earn income as a graphic designer and failed to demonstrate any effort to find employment in that field. Therefore, the court relied upon the job description and income data set forth in the New Jersey Occupational Wage Compendium to impute income to defendant, for child support purposes, of $38,955 per year. Defendant argues the court erred by imputing this income capacity without an express finding that he was voluntarily underemployed and failed to take into account his uncertain immigration status, the necessity of having to update his skills, and his lack of experience as a graphic designer in a large agency earning that level of income. We disagree.
The "Considerations in the Use of the Child Support Guidelines" state, in pertinent part:
12. Imputing Income to Parents. The fairness of a child support award resulting from the application of these guidelines is dependent on the accurate determination of a parent's net income. If the court finds that either parent is, without just cause, voluntarily underemployed or unemployed, it shall impute income to that parent according to the following priorities:
a. impute income based on potential employment and earning capacity using the parent's work history, occupational qualifications, educational background, and prevailing job opportunities in the region. The court may impute income based on the parent's former income at that person's usual or former occupation or the average earnings for that occupation as reported by the New Jersey Department of Labor (NJDOL); [Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2292 (2008).]
Defendant became involuntarily unemployed as a result of his employer's bankruptcy. He has the potential to generate income based on his educational background and skills as a graphic designer with internet, web-based computer skills. Instead, he has shifted to a job as a bank teller earning $10 an hour, which clearly does not draw on his prior skills, experience and earning capacity. In such a case, we have held that "the obligor must explain that choice with reference to other options explored and efforts to find work with comparable pay." Storey v. Storey, 373 N.J. Super. 464, 472 (App. Div. 2004). Otherwise, such obligor faces imputation based on a realistic assessment of capacity to earn. Id. at 474.
"Imputation of income is a discretionary matter not capable of precise or exact determination but rather requiring a trial judge to realistically appraise capacity to earn and job availability." Ibid. "Rarely is there evidence that an obligor turned down an offer of employment at a fixed amount, and proof of that or similar certainty is not a prerequisite to imputation." Ibid. "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." Id. at 474-75; Tash v. Tash, 353 N.J. Super. 94, 99 (App. Div. 2002); Rolnick v. Rolnick, 262 N.J. Super. 343, 359-60 (App. Div. 1993). Competent evidence includes data on prevailing wages from sources subject to judicial notice. N.J.R.E. 201; Child Support Guidelines, supra, Appendix IX-A to R. 5:6A at 2292.
We defer to the Family Part's special expertise and fact-finding following trial. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). The record supports Judge Solomon's findings that defendant failed to demonstrate a real effort to secure employment as a graphic designer and to satisfactorily explain the reason for his continued underemployment. Contrary to defendant's assertion, the trial judge did not ignore the immigration issue or the possibility that defendant might need a refresher course or two. Rather, it appeared the judge perceived from the totality of the testimony and evidence that defendant had little incentive to seriously seek employment in his field based on his financial arrangement with his domestic partner. We discern no basis to second-guess the trial judge's decision to impute income and the amount imputed under the circumstances of this case.
In addition to her $60,109 annual income as a registered nurse, plaintiff acknowledged she would receive additional interest income from an approximate $300,000 inheritance. For purposes of calculating plaintiff's child support obligation, the judge imputed additional income to her in the amount of $228 per week based on a 5% per year investment return on the inheritance. This was a reasonable rate of return based on CD and money market rates, as well as the rate of interest for judgments, and is consistent with the case law. Overbay v. Overbay, 376 N.J. Super. 99, 110-11 (App. Div. 2005). Contrary to defendant's assertion, in determining plaintiff's child support obligation, the court considered several of the factors contained in N.J.S.A. 2A:34-23, including the standard of living and economic circumstances of each parent, all sources of income and the assets and debts of each parent, and the age and health of the parties' son. Particularly in view of the fact that plaintiff had college and other obligations for her two daughters and defendant had virtually no personal debts or other expenses, there would have been no reason to require plaintiff to invade the principal of her inheritance to lessen defendant's support obligation.
In declining to award plaintiff counsel fees, the court enunciated and made specific findings as to every factor in Rule 5:3-5(c). Based on defendant's testimony and demeanor, the court [could not] "conclude that he acted . . . in bad faith or unreasonably as to the issues that he contested." Although the equitable distribution claim had no merit, the court noted that custody/parenting time, child support and the surname issues were "legitimate" issues up until the end. The judge found a number of these issues so inextricably linked that he could not separate counsel fees on the different issues. What appeared to tip the balance against the award was the "ability to pay/contribute" factor. The judge concluded, "I think based upon [plaintiff's] assets and income, she clearly has the ability to pay [her] fees while the defendant obviously does not have the ability to pay his own fees let alone the fees of plaintiff."
The award of counsel fees in a matrimonial case rests in the sound discretion of the trial judge. Williams v. Williams, 59 N.J. 229, 233 (1971); Chestone v. Chestone, 322 N.J. Super. 250, 258 (App. Div. 1999); Salch v. Salch, 240 N.J. Super. 44l, 443 (App. Div. l990). Although we might have decided differently, at least insofar as the economic issues were concerned for this marriage of such short duration, we cannot say denial of plaintiff's request for a fee award was so wide of the mark that it represents a mistaken exercise of discretion.
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