March 31, 2008
HELENE CASOLE, PLAINTIFF-RESPONDENT,
EUGENE CASOLE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FM-04-1489-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2007
Before Judges Wefing and R. B. Coleman.
Defendant Eugene Casole appeals from the trial court's March 28, 2007 order denying his post-divorce motion to modify alimony and child support. After considering defendant's arguments in light of the facts and applicable law, we reverse and remand for a more detailed statement of the reasons the court fixed defendant's income at $200,000. If necessary, a hearing should be conducted concerning defendant's actual income, the value of perquisites and benefits and whether defendant is underemployed in his present position.
On March 22, 2005, defendant Eugene Casole and plaintiff Helene Casole were divorced pursuant to a final consent judgment of divorce that incorporated an inter-spousal agreement reached between the parties. Based upon the husband's earnings of $200,000 per year and the wife's earnings of $45,000 per year, the judgment provided for him to pay permanent alimony in the weekly amount of $954.62, "deductible to defendant and taxable to plaintiff, until he dies, she dies, she remarries or she cohabits with an unrelated male." The judgment also provided for defendant to pay $300 per week child support for two unemancipated children, then in high school. The parties were to share joint custody of the two children, with plaintiff designated as the parent of primary residence and defendant designated as the parent of alternate residence, with parenting time on weekends and in accordance with an agreed holiday scheduling. In October 2005, the oldest child, the daughter, moved to defendant's home, and the parties agreed that defendant's $300 child support obligation would be reduced to $150.
At the time of the divorce, defendant was actually unemployed, but he was receiving a severance package, based on a previously executed two-year covenant not to compete with his former employer. At the same time, plaintiff, after a period of unemployment, had recently commenced employment in a position earning $45,000. Thus, the parties agreed and incorporated into the final judgment of divorce their agreement that defendant's earning capacity was $200,000 per year while the plaintiff's was $45,000 per year.
After the divorce, defendant became re-employed at a salary of $150,000. According to defendant's 2006 tax return, he had annual earnings of $167,884. In addition to that salary, his employer provides to defendant a company car for business use in Boston where defendant conducts business four days a week; defendant apparently garages the car at his New Jersey home. According to plaintiff, the employer also reimburses defendant for meals and lodging when he is away from home on business. He also receives health and retirements benefits from his employer.
On March 1, 2007, due to alleged changed circumstances, defendant filed a notice of motion seeking, among other things, a reduction in alimony payments and to require plaintiff to pay child support and to contribute toward the college expenses of their unemancipated daughter who was then residing with defendant. Plaintiff filed a cross-motion for enforcement of the final judgment of divorce and for counsel fees, contending that defendant was seeking the same relief that had been denied less than a year earlier.
In his certification in support of his motion, defendant reiterated that his salary was only $150,000. He indicated he had experienced a twenty-five percent reduction in income. He stated he had recovered a one-time bonus in 2006, but that he would not receive a bonus in 2007. He certified his earnings for 2007 would be $150,000. In her responsive certification, plaintiff disputed defendant's claim of changed circumstances. She pointed out that there is no documentation of defendant's efforts to find work at a higher salary and asserted that defendant's real income is in excess of $200,000 when his reimbursement of expenses and benefits are taken into account. The parties presented oral arguments on their cross-motions on March 28, 2007, and the court concluded, without an evidentiary hearing, that there was no change in circumstances sufficient to justify a reduction in alimony. The court did recalculate child support based upon the fact, as we have noted, that the oldest child had taken up residence with defendant.
The court explained its ruling regarding alimony and the child support calculations as follows:
I do not conclude for the same reasons I concluded with regard to the prior motion that the amount of earnings by Mr. Casole in light of all the attendant circumstances, which we've beat up one side and down the other, constitutes a substantial change in circumstance warranting an adjustment in alimony. I don't find that his income of $168,00 taken together with whatever benefits based on the record I have . . . in front of me . . . under his employment contract with his current employer constitutes a substantial change in circumstance so that he has such a substantial diminution in disposable income to warrant a reduction in alimony. But I do think that we should do a child support calculation since the parties have suggested -- the Defendant has suggested there may have been an agreement outside the Guidelines which was being acted upon with regard to child support that has changed because the child Alison is now attending college and her expense picture is vastly different. And you take that together with -- well, that that unto itself is a sufficient change in circumstance. I'm going to look at the Guidelines as a guide with regard to Alison and Joseph. I am going to consider that the Defendant currently makes $200,000 in imputed income, that the Plaintiff makes $45,000 in imputed income which was the income that was imputed under the final judgment of divorce. Understanding that Defendant argues going forward that he's making at most 168 and at least 150, and the Plaintiff is arguing going forward that she's making zero and which apparently she'll make for the next two years. I'm going to use those numbers, 200,000 for the Defendant, 45,000 for the Plaintiff.
The court ordered plaintiff to provide proof of life insurance in accordance with Paragraph 5 of the final judgment of divorce and its ruling also encompassed an alteration of responsibilities for unreimbursed medical counseling and dental expenses which are allocated thirty-five percent to plaintiff and sixty-five percent to defendant up to and including February 28, 2007 and forty percent to plaintiff, sixty percent to defendant effective March 1, 2007. However, those issues are not raised on this appeal. At the heart of the dispute on appeal is the court's determination that there is no change of circumstances that warrants a reduction in alimony or child support.
Although the court obviously relied, at least in part, on arguments, concepts or findings expressed in a matter that preceded the oral argument in this matter, the details of such reference are not included in the record on this appeal. Consequently, it cannot be adequately reviewed. Regarding child support, however, the court explained its rulings to the parties as follows:
However, using the child support calculations for the reasons I express I have based -- I've imputed income to the Plaintiff of 45,000, to the Defendant of 200,000 pursuant to the final judgment of divorce. The net child support obligation per week is $34 per week. I have utilized 52 nights of parenting time for Joseph and zero for Alison.
That may result in a net increase of Mr. Casole's obligation, but I think that's appropriate under the circumstances. And although his net child support obligation is substantially decreased [from $300 per week to $150 per week], it's appropriate because Alison is living with him and Alison does appear to be the more expensive child under the circumstances.
The court denied plaintiff's request for counsel fees. No appeal has been taken from that ruling.
Defendant has appealed and advances the following arguments:
THE TRIAL COURT ERRED IN FAILING TO FIND SUBSTANTIAL CHANGED CIRCUMSTANCES IN CONNECTION WITH DEFENDANT'S INCOME.
THE TRIAL COURT INCORRECTLY FOUND DEFENDANT'S INCOME TO BE $200,000, BASED ON SPECULATIVE BUSINESS REIMBURSEMENTS.
THE TRIAL COURT FAILED TO CONDUCT A PLENARY HEARING TO RESOLVE DISPUTED QUESTIONS OF FACT.
The first two points are variants of the same theme, that defendant's income has decreased from the amount imputed to him in the final judgment of divorce and that the court, therefore, should have granted his request for a modification of the previously agreed alimony and child support amounts. We shall address Points I and II together.
It is well-established that "[w]hether an alimony obligation should be modified based upon a claim of changed circumstances rests within a Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (citing Innes v. Innes, 117 N.J. 496, 504 (1990); Storey v. Storey, 367 N.J. Super. 464, 470 (App. Div. 2004); Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd as modified, 183 N.J. 290 (2005)). "Each and every motion to modify an alimony obligation 'rests upon its own particular footing and the appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters.'" Larbig, supra, 384 N.J. Super. at 21 (quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)).
Courts have recognized a number of situations that would constitute "changed circumstances." One such situation is the increase or decrease in the supporting spouse's income. Lepis v. Lepis, 83 N.J. 139, 151 (1980); Martindell, supra, 21 N.J. at 355; Traudt v. Traudt, 116 N.J. Eq. 75 (E & A 1934); Acheson v. Acheson, 24 N.J. Misc. 133 (Ch. 1946). "[A] decrease [in alimony] is called for when circumstances render all or a portion of support received unnecessary for maintaining that [pre-divorce] standard." Lepis, supra, 83 N.J. at 153. Ordinarily, to decide this motion, the court should examine dependent spouse's finances and economic resources. See Konzelman v. Konzelman, 158 N.J. 185, 197 (1999). Generally, courts will make modifications in order to render a situation equitable and fair. Dolce v. Dolce, 383 N.J. Super. 11, 19 (App. Div. 2006); see Lepis, supra, 83 N.J. at 161 n.12. The obligor has the burden of persuasion to prove changed circumstances. Storey, supra, 373 N.J. Super. at 464, 473; Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001). A plenary hearing may be necessary to adjudicate the matter if there are genuine issues of material fact. Dorfman v. Dorfman, 315 N.J. Super. 511, 515 (App. Div. 1990) (citing Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. 1968)).
Likewise, "[i]mputation 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." Storey, supra, 373 N.J. Super. at 474. Hence, "[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.
In Dorfman, supra, we reversed the trial court's imputation of an annual gross income of $100,000 to an accountant who had been involuntarily terminated from his employment after seventeen years and who received one offer of $40,000 and eventually accepted employment at $60,000, 315 N.J. Super. at 514. We concluded that such a significant salary reduction clearly constituted changed circumstances, and we reversed the denial of his motion to modify his child support obligation. Id. at 517.
Here, defendant insists that his salary is $150,000 and that he had a one-time bonus of $16,000 in 2006. He argues the court had no basis to impute income to him, especially not based on the speculative undocumented assertions presented by plaintiff to support her position that defendant's benefits have value that affords defendant income that is the equivalent of $200,000.
Without conducting a hearing, the trial court imputed to both parties the sums they had stipulated in their 2005 property settlement agreement. At that time, defendant was not employed but obviously was optimistic that he could replicate the $200,000 salary he had earned in his last position. He has now submitted certifications attesting to income between $150,000 and $168,000. Although plaintiff implies that defendant may not have diligently sought a position with a higher salary, the court made no finding that defendant is voluntarily underemployed and the record, as it stands, provides an insufficient basis for such a conclusion.
We recognize, of course, that when a party, without just cause, is voluntarily unemployed or underemployed, income may be imputed to that party. Caplan v. Caplan, 182 N.J. 250, 268 (2005). In determining whether to impute income, the trial court must first determine whether the party has just cause to be voluntarily unemployed or underemployed. Ibid. When deciding whether to impute an income, the court should consider (1) what the employment status and earning capacity of that parent would have been if the family had remained intact or would have formed, (2) the reason and intent for the voluntary underemployment or unemployment, (3) the availability of other assets that may be used to pay support, and (4) the ages of any children in the parent's household and child-care alternatives. [Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2293 (2008).]
Here, the court imputed income to both parties, utilizing the amounts on which the parties based the obligation set forth in the final judgment. That amount may be reasonable and fair, however, in the absence of any proofs indicating that defendant has the ability to earn the imputed amount, we cannot properly evaluate the reasonableness or the fairness of the imputation. Even if it was not unforeseeable at the time of the divorce that defendant might not be able to match his former salary, that should not bind him interminably to the amount stipulated in the divorce decree in good faith, if changed circumstances can be shown. See Lepis, supra, 83 N.J. at 152. As we have observed, "[u]nderpinning the basis of every support order is the proposition the payor has the 'ability to pay' the amount set forth or agreed to." Dorfman, supra, 315 N.J. Super. at 516.
We are not satisfied from our review of the record that the court made the requisite factual finding that defendant has the actual capacity to earn the income imputed to him. Accordingly, we remand for further proceedings. We do not retain jurisdiction.
Reversed and remanded.
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