On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, FM-03-826-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 7, 2007
Before Judges Winkelstein and Yannotti.
Plaintiff Thomas Kappeler appeals from that portion of the Family Part's August 11, 2006 order denying his application to reduce or terminate his alimony obligation, and from a September 29, 2006 order denying his motion for reconsideration. On appeal, he claims the trial judge erred in assuming his annual income was $117,000; erred in her interpretation of the parties' property settlement agreement (PSA); and ultimately erred by denying his motion for a decrease in alimony. We affirm.
Following nineteen years of marriage, the parties were divorced by final judgment (FJD) on September 26, 2001. The FJD incorporated the PSA, which called for plaintiff to pay $187 per week in child support for the parties' two children: Kyle, born September 16, 1986, and Jennifer, born December 3, 1991. The PSA also called for plaintiff to pay $250 per week in permanent alimony. Specifically, it says:
[Plaintiff] agrees to pay [defendant] the sum of $250.00 per week permanent alimony.
This agreement is based upon [plaintiff] earning approximately $103,000.00 per year and [defendant] earning $30,000.00 per year.
Parties agree that their [case information statement] from February 2001 will control any reconsiderations. The parties recognize that there is an outstanding order of the Burlington County Superior Court dated April 11, 2001 that sets spousal support at $250.00 per week effective February 14, 2001.
The April 11, 2001 order to which the PSA refers established spousal support at $250 per week and child support at $184 per week, based on plaintiff's gross income of approximately $103,000 and defendant's gross income of approximately $30,400.*fn1 That order also indicated that defendant had "a deficiency of $433.00 per week after subtracting her monthly expenses of $3,869.00 per month from her net monthly income of $2008.00."
In support of his motion, plaintiff submitted a case information statement (CIS) showing his 2005 income to have been $92,985, or $1788 per week. Subsequent to the trial court's decision, plaintiff received his 2006 W-2 from his employer, which shows a gross income for 2006 of $102,212. The trial judge, without the benefit of the 2006 W-2, concluded that plaintiff earned $2255 per week in 2006. The court made this finding based on plaintiff's then most-recent pay statement, dated May 26, 2006, showing year-to-date earnings of $45,115. The court appears to have calculated the weekly $2255 figure by dividing $45,115 by twenty, as there were twenty weeks between January 1, 2006 and May 20, 2006, the end date of the pay period reflected by the May 26, 2006 pay statement. Projected over a fifty-two-week year, this calculates to an annual income of $117,260.
Plaintiff claims that the court miscalculated his 2006 income, in that the pay period ending May 20, 2006, represented his eleventh paycheck for the 2006 calendar year. His first paycheck of the year, dated January 6, 2006, was for the two-week pay period ending December 30, 2005. Therefore, plaintiff asserts that the $45,115 figure represents his pay for twenty-two weeks of work, including the final two weeks of 2005. He thus argues that this $45,115 figure should have been divided by twenty-two to calculate his weekly income, which would have been approximately $2050. Projected over fifty-two weeks, this computes to an annual income of approximately $106,635.
Plaintiff also challenges other calculations made by the court, and asserts that his 2006 income should have been estimated at $102,414. That figure is substantially confirmed by plaintiff's 2006 W-2, showing, as we indicated, his gross income for 2006 to be $102,212.
In her certification in opposition to plaintiff's motion to modify alimony, defendant asserted that she was earning a base annual salary of $51,000 in 2006. She filed a supplemental certification indicating that her employer informed her on Friday, July 14, 2006, that her job was being eliminated; her employer gave her a choice between receiving severance and retaining her former position at a lower pay rate. Defendant certified that she chose to remain with her employer at the lower pay rate because it was less risky ...