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Bradford v. Duffy

November 21, 2008

MARYANN BRADFORD, F/K/A MARYANN DUFFY, PLAINTIFF-RESPONDENT,
v.
THOMAS A. DUFFY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Monmouth County, Docket No. FM-13-59-02B.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 22, 2008

Before Judges Cuff, Fisher and Baxter.

In this appeal, we review two post-judgment orders. The first order, entered on December 22, 2006, granted defendant Thomas Duffy's motion to reduce his child support from its prior level of $238 per week, but reduced it by only $19, to the sum of $219 per week; defendant maintains this reduction is grossly inadequate. Defendant also challenges another portion of the same order that set July 1, 2006, as the effective date of the reduction, rather than January 25, 2006, the date on which he filed his motion.

As part of his appeal from the December 22, 2006 order, defendant also maintains that the judge erred by failing to insist that plaintiff, Mary Ann Bradford, produce a copy of her 2004 and 2005 joint federal income tax returns for an in-camera inspection. We agree and reverse that determination.

Because of our conclusion that the judge erred by not reviewing plaintiff's joint income tax returns, we vacate the December 22, 2006 order pending an in camera inspection. If the judge is satisfied after her in camera review of the tax returns, that plaintiff's income is the same as shown on plaintiff's Form 1099 and pay stubs, then the order of December 22, 2006 shall be reinstated. However, if the joint tax returns reveal an income different from that shown on the wage documents plaintiff provided earlier, or if the returns raise any other questions that the judge believes ought to be explored, the judge shall use plaintiff's revised income to recalculate child support under the Guidelines and modify the December 22, 2006 order accordingly.

The second order, entered on November 15, 2007, imposed a lis pendens against inherited real property defendant owns in Elizabeth, as an alternative to requiring him to obtain a life insurance policy. He maintains that a lis pendens is an improper method of securing his responsibility for payment of child support until his children attain majority. Because both parties have now agreed upon another method of accomplishing the same objective, we need not address defendant's contention regarding the impropriety of the lis pendens. We accordingly remand that order for the modification described later in this opinion.

I.

The parties were married on September 22, 1990, and were granted a judgment of divorce (JOD) on April 10, 2002. Two children were born of the marriage, a son in 1992, and a daughter in 1995. The parties separated in September 2001 when defendant, while intoxicated, threatened the parties' son with a knife. Plaintiff sought and was granted a final domestic violence restraining order (FRO). As a result of that incident, defendant was charged with the crime of terroristic threats, to which he pled guilty on June 10, 2002. He was sentenced to a three-year term of probation.

In the summer of 2003, plaintiff filed a complaint alleging that defendant's repeated phone calls constituted a violation of the FRO. Because the calls in question were made during the weekday, an assistant prosecutor, in preparing that case for trial, issued a subpoena to defendant's employer, Conference Call Service, demanding that the company produce a record of telephone calls made by defendant on the company credit card. In August 2003, the company terminated defendant's employment.

Between February 2004 and March 2006, defendant filed ten separate motions for reduction of his child support obligation. All were denied. On January 25, 2006, he filed the motion to reduce child support that is the subject of this appeal. On March 3, 2006, the judge ruled that a plenary hearing was necessary to resolve the parties' conflicting factual contentions. She ordered limited discovery, and required plaintiff to supply her income tax returns for 2004 and 2005, as well as copies of her 2006 pay stubs. The plenary hearing, covering 531 transcript pages, occurred on seven dates between May 25 and December 21, 2006. The parties themselves were the only two witnesses.

At trial, defendant testified that his termination was unrelated to his use of a company credit card to call plaintiff, and he instead attributed his firing to a company-wide layoff of the sales staff. Defendant testified that after he was terminated from his employment at Conference Call Service, he sought employment through various head hunters and employment agencies, and posted his resume on-line. He maintained that a number of employers were on the verge of offering him a sales position, but when they ran a criminal history check and learned of his criminal conviction, they chose not to offer him employment.

After repeatedly being denied employment because of his criminal conviction, defendant decided in February 2004 to halt his efforts with employment agencies and instead "switch[] gears" and send his resumes to "blue collar" companies that he found through classified ads. During his testimony, defendant identified by name forty-five such companies to whom he applied in 2004 and 2005. He was unsuccessful in securing employment at any of these, due primarily to his criminal conviction. On cross-examination, he acknowledged that he had failed to list his criminal conviction on his employment applications because he did not believe that the crime of terroristic threats was a felony. He conceded that this inaccuracy on his employment applications might have contributed to not being offered employment.

Some time during 2005, frustrated by his inability to find employment, defendant refocused his job search by seeking work as a day laborer. According to his testimony, he went to an area where people seeking work as undocumented day laborers congregate so that potential employers can drive by and hire them. Defendant described the work as "mostly manual labor," adding this "wasn't what [he] went to college for."

Defendant insisted that no matter how hard he tried, he had been unable to secure day laborer positions at a salary greater than eight dollars per hour. He maintained that he was always paid in cash and that none of his employers ever issued him a Form 1099. Although in March 2006, before the plenary hearing began, defendant's attorney had assured the judge that defendant would produce his employers to attest to his salary of eight dollars per hour, when the hearing began, defendant reported that none of his employers were willing to testify. He insisted that his current income was only $20,000 per year. Even though defendant was paid in cash in 2004 and 2005, he filed income tax returns showing an income of $25,935 in 2004 and ...


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