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Berry v. Berry


August 12, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-1661-01.

Per curiam.


Argued January 22, 2008

Before Judges Stern and Collester.

Plaintiff appeals from the entry of a post-judgment order, dated January 19, 2007, providing that defendant "has demonstrated a prima facie showing of changed circumstances that warrants a modification in the amount of alimony and child support that he is required to pay to the plaintiff," reducing plaintiff's alimony from $1,400 to $727 a week, modifying defendant's child support obligation for the oldest child to $60 a week, and to $284 a week with respect to the unemancipated child.*fn1 The judge imputed $35,000 annual income to plaintiff. The Family Part also, on the same date, denied plaintiff's cross-motion for enforcement of litigant's rights.

On this appeal plaintiff argues that "the court below erred in imputing employment income to the plaintiff," that "plaintiff's failure to obtain gainful full-time employment constituted a changed circumstance justifying a continuation of defendant's prior alimony obligation," and that "the court below erred in failing to give any consideration to the husband's substantial increase in earnings."

Plaintiff asserts that the Family Part erred in reducing alimony and seeks its reinstatement in full. She asserts that she is unable to find employment as contemplated three years after the judgment. Defendant claims that the court imputed income only after finding that, without just cause, she failed to obtain the employment and imputed only the income from a job she had rejected after a period of rehabilitative alimony giving her the opportunity to obtain a master's degree. The judgment provided that he could file a changed circumstances application to decrease alimony "if the plaintiff does not have employment at the end of the three year period," and the imputation was $35,000 a year, the salary of a job that had been offered to plaintiff.

The record reflects that the amended final judgment of divorce was based on a trial in part and stipulations of settlement in part. Child custody and parenting time were resolved by stipulation. The amended final judgment also distributed the marital home, stocks, bonds and retirement assets.

Defendant was ordered to pay permanent alimony in the amount of $1,400 per week, and child support for the couple's two children in the amount of $299 per week. The judgment further provided that "[i]n addition to the permanent alimony," the defendant shall pay rehabilitative alimony in the amount equal to plaintiff's tuition and other charges to enable plaintiff to obtain a master's degree. Plaintiff was then allowed "one year following her completion of her Master's Degree" program to secure employment. The amended final judgment further stated that defendant would not be permitted to bring an application for a decrease in support due to plaintiff's "added educational abilities and work-related ability" for a period of three years." If plaintiff was not employed "at the end of three years," the amended final judgment provided that defendant would be "free to make an application to the court for a change of circumstances and decrease in alimony based upon the plaintiff's ability to work and earn an income."

Plaintiff claims she made serious efforts to comply with the three year timeframe to obtain employment specified in the amended final judgment, and encountered difficulties in satisfactorily completing the entrance requirements for the master's degree. By the end of the three year period, plaintiff had received an employment offer as a sales representative selling medical technology equipment, offering a salary of $35,000. Plaintiff claims the work hour and mobility demands of the job required her to decline the employment offer. According to plaintiff's certification in support of her cross-motion:

Of all the positions that I applied for, the only concrete offer that I ever received was for a sale rep position selling MRI equipment for Oona Health, Inc.. However, this position would have required my working extensive hours, including evenings, around the tri-state area, which would have made it impossible for me to attend properly to my teenaged children, who were 11 and 16 at the time the offer was made. Although the job carried a $35,000.00 per year salary, I therefore had to turn it down.

After reviewing the papers on the cross-motions, the motion judge concluded that the imputed earnings, in addition to the continued reduced alimony payments, would keep the plaintiff at the "same level of $1400 in income coming in as she had under the judgment of divorce." In addition to the modification of defendant's alimony obligations, the trial court also recalculated defendant's child support obligation based on the fact that the couple's older child was attending college, and the child support guidelines no longer applied to her. However, he considered what the guidelines would provide if she were still living at home and noted that she "will be home at times." The court also considered that defendant paid the daughter's college expenses of approximately $26,000 per year, as well as his increased income, and therefore increased the child support to the aggregate amount of $344 per week.

We affirm the order substantially for the reasons expressed in Judge John Selser's oral opinion of January 19, 2007, and add only the following.

A trial court's decision to impute income "will not be overturned unless the underlying findings are inconsistent with or unsupported by competent evidence." Storey v. Storey, 373 N.J. Super. 464, 474-75 (App. Div. 2004). Imputation of income is a discretionary matter, "requiring a trial judge to realistically appraise capacity to earn and job availability" because "[r]arely 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." Id. at 474. The judgment gave plaintiff time to earn a master's degree and obtain work. We can find no abuse of discretion because plaintiff thereafter declined to work for the imputed salary. It is a well-established principle that when a party "without just cause, is voluntarily unemployed or underemployed," income may be imputed to that party for purposes of computing alimony and child support. Caplan v. Caplan, 182 N.J. 250, 268 (2005). As a result of the final judgment which can no longer be contested, we cannot consider the fact that plaintiff declined the employment she was offered and her lack of employment to constitute a changed circumstance warranting an increase in the permanent, or construction of the rehabilitative, alimony.


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