On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-791-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Parker.
The appeal filed by defendant Moez Hussein pro se was dismissed on January 12, 2007 for failure to prosecute. The cross-appeal filed by plaintiff Yatou Khatkhat arises out of three orders: two entered on April 21, 2006 appointing an attorney to represent the parties' children in the ongoing visitation dispute and ordering plaintiff to deliver the children for weekly psychotherapy sessions; and an order entered on May 11, 2006 reducing defendant's child support obligation to $91 per week, ordering him to pay $100 per week on arrears and giving defendant a credit on his arrearages, which were then calculated at $24,553.
The parties were married on July 24, 1996 and divorced on March 18, 2002. Plaintiff has had sole custody of their children, who are now nine and ten years old, since the parties separated.
The divorce trial was scheduled for February 2002 and defendant failed to appear. The court found that his failure to appear was "a conscious choice by defendant," struck his answer and counterclaim and entered a default against him. Although defendant failed to appear for the final hearing, the trial court stated that he had acknowledged on the record on February 20, 2002 that he was earning $65,000 per year at his last place of employment and the March 2002 New Jersey Statewide Occupational Wage Scales having indicated that the mean earning capacity of an accountant or auditor is $56,725 annually, (SOC Code 13-2011), the court accordingly imputes to defendant the earning capacity of $56,725 per year and also finds that plaintiff has established that she has a minimal earning capacity of $202 per week.
The trial court ordered defendant to pay $243 per week in child support by wage execution and to pay arrears, with no stated total, at the rate of $25 per week. The judgment further provided that if "defendant fail[ed] to make two consecutive payments of child support after February 26, 2002, the date of this decision, a warrant shall issue for his arrest." With respect to alimony, defendant was ordered to pay $2,500 on or before February 26, 2003 by wage garnishment as limited duration alimony. The court expressly noted that plaintiff had "limited English speaking and reading skills, and her need for English lessons and a high school equivalency degree" warranted the limited duration alimony so that plaintiff would have the "opportunity to acquire income and assets" to support the children in her custody. The court further noted that defendant's earning capacity was much greater than plaintiff's, "in view of his education, computer proficiencies, excellent English, and excellent presentation skills." Defendant was also responsible for 80.55% of the children's unreimbursed medical expenses.
Eight months after the judgment was entered, the court entered its first order reducing defendant's child support obligation to $139 per week, retroactive to October 10, 2002. Thereafter, there were numerous ability to pay hearings and motions to further reduce child support. In each instance, plaintiff cross-moved for enforcement of the prior orders.
Although defendant has masters degrees in accounting and business administration and credits toward a doctorate degree, he has continually claimed that he is unable to find and maintain suitable employment. At a hearing on May 11, 2006, the trial court imputed $350 income per week to defendant and $270 per week to plaintiff based upon their then-current incomes. Defendant was earning $70 per day substitute teaching while plaintiff was earning $6.75 per hour in her part-time employment. The court further reduced defendant's child support obligation to $91 per week but increased payments on his arrears to $100 per week.
Although defendant had previously been an Assistant Chief Financial Officer earning $65,000 a year and had worked as an accountant and tax preparer, he has held minimal employment as a waiter, substitute teacher and grocery store clerk since the divorce.
During a hearing on January 26, 2006, defendant repeatedly acknowledged that he did not pay child support because he did not have custody of the children or liberal parenting time with them. At least twenty enforcement orders had been entered since the judgment of divorce.
While the appeal was pending, we received a letter from plaintiff's counsel, dated November 30, 2007, stating that defendant "made a lump sum payment of $29,337.69 to the parties' child support account on or about September 4, 2007." This payment was apparently made by defendant to avoid incarceration.
From the record before us, we may certainly infer that defendant has remained underemployed to avoid his responsibility to support his children. We can appreciate the frustration of the trial court in having before it a well-educated, capable litigant who refuses to find suitable employment to meet his support obligations. Nevertheless, income should be imputed to defendant in accordance with his ability to earn, and his voluntary underemployment should be disregarded in calculating support and arrearages. Caplan v. Caplan, 364 N.J. Super. 68 (App. Div. 2003), aff'd, 182 N.J. 250 (2005); Halliwell v. ...