On appeal from the Superior Court of New Jersey, Family Division, Monmouth County, Docket No. FM-13-326-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Baxter.
Defendant Bruce N. Davidson appeals from the November 27, 2006, and February 6, 2007, orders entered in the Family Part. We affirm.
Plaintiff, Robin Davidson, and defendant were married on August 22, 1976, in Massachusetts. Two children, now emancipated, were born of the marriage. A Judgment of Divorce (JOD) was entered on June 2, 1998, in Middlesex County, Massachusetts, incorporating a Separation Agreement (Agreement). Defendant moved to New Jersey about the time of the divorce and married his current wife on October 10, 2004; plaintiff relocated to New Jersey in March 2001.
Defendant's obligation to pay alimony was determined under the Agreement, pursuant to the following formula: "[d]ivide the total combined income of the parties by 1.8; allocate the quotient to the [defendant] and the difference between the quotient and the total combined income to [plaintiff]." Pursuant to that formula, the parties agreed that commencing on June 4, 1998, defendant would pay alimony to plaintiff in the amount of $864 per week. The Agreement required an annual review of defendant's alimony obligation: "[e]very year on the anniversary of this Agreement, the parties shall exchange their prior years' income tax returns, and based on the income reported on such returns, adjust the alimony amount upward or downward, using the same formula by which the current alimony has been determined . . . ." Additionally, the Agreement provided in Paragraph 17 that "[t]his Agreement shall be construed and governed according to the laws of the Commonwealth of Massachusetts"; and in Paragraph 19 that "[t]his Agreement shall not be altered or modified except by an instrument signed and acknowledged by [defendant] and [plaintiff] or by action of Middlesex County Probate Court."
On August 15, 2006, plaintiff filed a motion, seeking, among other matters, to: 1) register and docket the JOD in the State of New Jersey; 2) hold defendant in contempt of court for violating her litigant's rights; 3) compel defendant to provide income tax returns and W-2 reporting forms for the years 2000 through 2003; and 4) compel defendant to pay alimony arrears and counsel fees. In support of her motion, plaintiff submitted a certification setting forth her contention that defendant was in violation of the Agreement, "because he either did not use the formula properly, or alternatively, he intentionally chose to give me less money [(alimony)] than that to which I am entitled."
Plaintiff stated that defendant had "deducted voluntary contributions to his retirement fund and used this amount as his gross income," contrary to the formula contained in the Agreement, which required him to compute his alimony obligation based on reported income. For example, plaintiff asserted that in the year 2004, although defendant's actual income as shown on his W-2 income tax form was $97,293.41, he calculated his alimony obligation based on $81,293.41, after deducting a $16,000 contribution to his retirement account. Based on this calculation, plaintiff contended that defendant was in arrears for the period from June 2005 through June 2006, in the amount of $7,111.29, and that she could not calculate arrearages for the years 2000 through 2003, because she had not received defendant's W-2 forms for those years.
On September 7, 2006, defendant filed a cross-motion, seeking to: 1) terminate, or in the alternative, reduce his alimony obligation; and 2) terminate his insurance obligation, based on changed circumstances, and to compel plaintiff to pay his counsel fees. In support of his motion and in opposition to plaintiff's motion, defendant submitted a certification. Defendant opposed plaintiff's motion, certifying that he had made all alimony payments to plaintiff for the past eight years, ranging in annual amounts from $29,996.44 to $44,888.89. Defendant asserted that he had forwarded to plaintiff a copy of his federal tax return for each year since the JOD, and that plaintiff had provided him with hers.
Defendant stated that he calculated his alimony obligation using taxable income as reported on the parties' federal 1040 tax forms, acknowledging that his method provided a net income figure for him, after deducting any contributions made to his individual retirement account.
Concerning his motion seeking to terminate, or in the alternative, to reduce his alimony obligation, and to terminate his insurance obligation, defendant certified that in January 2005, three months after his marriage to his current wife, she suffered an anoxic brain injury following complications from the flu, and as a result, his wife receives disability benefits, whereas previously she had worked fulltime as an occupational therapist. As to the injury, defendant stated "[t]he injury has had an impact on both her physical and cognitive functioning, leaving her in need of substantial, ongoing medical monitoring, care and treatment, and incapable of holding employment."
Defendant also certified that on July 28, 2006, he was terminated from employment with Corporate Counseling Associates in New York City, and that the only income he and his wife had were from her disability benefits and his severance pay, which was about to terminate in October of that year. Lastly, defendant requested the court to impute income to plaintiff because, contrary to his circumstances since their divorce, plaintiff pursued and obtained an Associates Degree, a Bachelors Degree, and a Master's Degree in counseling, but only chooses to work minimally as a part-time secretary at Monmouth University, while relying on the alimony payments as the primary source of income. Defendant asserts that plaintiff is fully capable of obtaining employment in the field of her Master's Degree and that "[p]laintiff should be imputed with income earned by those who are counselors and who have a Master's Degree in counseling."
On September 11, 2006, plaintiff filed a reply certification to defendant's cross-motion, certifying that she has not been employed as a secretary for the last one and one-half years. Plaintiff certified that she is presently attending school, pursuing a certification in professional counseling to become a Licensed Therapist. In furtherance of her studies, plaintiff stated:
I am required to work 300 hours per semester without pay. I am working three (3) days a week at a counseling center and going to school two (2) nights a week. Additionally, I am working one (1) day a week as a Graduate Assistant at Monmouth University which pays for one (1) of my courses. Over the next 1-1/2 years, it will be impossible for me to obtain other employment. I leave my house at 7:30 a.m. four days a week, and I return home at 5:30 p.m. on Monday and Tuesday, 8:30 p.m. on ...