On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FM-09-1889-03.
The opinion of the court was delivered by: Chambers, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Fuentes and Chambers.
Defendant Reda M. Aziz appeals from the order of March 21, 2006, requiring that he pay plaintiff Mary L. Ibrahim $125 per week in child support plus $25 per week in arrears. Although defendant lives in Egypt and maintains that he earns only $86 per month there, the trial court imputed income of $680 per week to defendant based on the salary a store manager would earn in New Jersey as reported by the New Jersey Department of Labor. Defendant, however, is not employed in New Jersey, but rather resides and works in Egypt. Given the differences between wages in Egypt and wages in New Jersey, the trial court erred in imputing to defendant income that he could have earned in New Jersey. We reverse and remand the matter to the Family Part for further proceedings in accordance with this opinion.
The parties, both natives of Egypt, were married in Egypt in February 1996. They have one child born in 1997. Defendant was educated in Egypt and has the equivalent of an Associates Degree. He worked with his father in their gold business in Cairo. In 2000, the parties obtained visitor visas that allowed them to stay in the United States for six months. Upon application, their stay could be extended at six month intervals within the visas' five-year term. It appears from the record that these visas did not authorize the parties to work in the United States.
The parties first came to the United States to visit relatives in 2000, and then returned to Egypt. In May 2001, the parties came back to the United States with their child. At that time, plaintiff obtained a job as a waitress,*fn1 and the family moved into an apartment. Plaintiff contended that defendant opened a retail store in Jersey City. Defendant denied that he did so. The trial court found that defendant managed a retail store for his relatives in New Jersey. The trial court could not determine whether defendant was paid for those services or whether defendant's relatives merely utilized his services in exchange for the housing, food, and gifts they provided to him and his family.
In January 2002, plaintiff filed a domestic violence application against defendant. The amended final restraining order dated January 17, 2002, directed defendant to pay child support in the amount of $175 per week. At the domestic violence hearing, defendant had agreed to pay this sum so long as he was in the United States; it was contemplated at the time of the domestic violence hearing that he would be leaving the country shortly. Since defendant represented that he was unemployed at the time, the record at the domestic violence hearing reflects that defendant's relatives would be paying defendant's child support and other financial obligations in the order. Nevertheless, the trial court ordered that defendant would be obligated to make the payments whether or not he went back to Egypt and that his attorney could make an application for modification if necessary.
Defendant voluntarily returned to Egypt in January 2002. Despite numerous petitions, defendant has been unable to obtain a visa to return to the United States. Plaintiff obtained asylum here based on her religion.
In the divorce proceedings thereafter brought by plaintiff, defendant was placed in default for failure to provide certain discovery. The judgment of divorce, dated March 23, 2005, and the amended judgment of divorce, dated May 2, 2005, continued the child support payments at the rate of $175 per week. On May 4, 2005, defendant moved for reconsideration, and the trial court reopened the judgment of divorce in order to review defendant's support obligations.
In that proceeding, defendant submitted his certification of July 11, 2005, to the trial court, stating that the gold shop he had with his father in Cairo went out of business due to economic conditions, and that he was now working as a perfume salesman earning the equivalent of $86 per month. Defendant provided the trial court with a copy of his labor contract for this new job, together with its translation. He also set forth in his certification the income from the family business he had with his father from 1998 to 2004; he calculated the net proceeds after payment of taxes; and he submitted a tax document (translated into English) verifying the deductions he made for taxes. Defendant advised that the family had been able to maintain a middle-class lifestyle in Cairo, living in an apartment with rent of $17.24 per month. His submissions to the trial court also included materials on the conversion rate between Egyptian currency and U.S. dollars and a copy of an Egyptian newspaper article indicating that, according to the latest statistics of the Arab Economic Union Counsel, the average per capita income in Egypt was $1304 U.S. dollars in 2002.
Plaintiff questioned the defendant's income figures noting the comfortable lifestyle the family led in Egypt and the three trips the family took to the United States. She also stated that the figures used for tax purposes in Egypt were different from the actual income figures. While plaintiff asserted that defendant had other assets, she also acknowledged that her husband did not reveal his financial ...