On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-446-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Baxter.
In this appeal, we consider the trial judge's manner of quantifying the amount of child support defendant Brian Beech was to pay plaintiff Patricia Beech. Because the parties' dispute regarding Brian's rental income, which informed the amount of child support, was not susceptible to resolution absent an evidentiary hearing, we vacate the child support order and remand for an evidentiary hearing.
The parties were married on a date not revealed by the record on appeal.*fn1 They have two children: a daughter born in 1990, and a son born in 1993. Patricia filed a complaint for divorce and, eventually, the parties entered into a handwritten property settlement agreement (PSA) on September 5, 2007. On that same day, the trial judge entered a final judgment of divorce.*fn2
The judgment of divorce and its subsequent amendment, however, did not fully dispose of all the issues raised in this action. In a section of the PSA labeled "Child Support and Related Issues," the parties stipulated the following:
Child support, tutoring expenses, life insurance, health insurance, unreimbursed health expenses to be agreed upon within 30 days or a post-judgment application shall be filed to [resolve] the issues. Relief retroactive to 9/5/07.
The parties failed to agree on a proper level of child support. Soon after entry of the amended judgment of divorce, Patricia moved for, among other things, an order that would fix Brian's child support obligation. In describing the sources of Brian's income, Patricia referred in her moving certification to the fact that Brian "runs a four-unit apartment rental complex" in Maple Shade. She attached an appraisal of that property and argued that the apartment complex is in a highly desirable town and location. It is my understanding that the property is only encumbered for approximately $50,000.00 and that [Brian's] mortgage payment on that property is minimal at best. Accordingly, on a thirty (30) year term mortgage, that mortgage payment should not be substantial by any capacity. However, what is substantial is [Brian's] ability to maintain a supplemental income as a result of his receipt of monthly rent on those units. The unit itself has four (4) spacious apartments. If those four (4) apartments were to rent, at the very conservative figure, of $1,000.00 per month, that is $4,000.00 per month in rental income. Over a twelve (12) month period, that equals out to nearly $48,000.00 in income. Recognizing appropriate expenses, I would only seek to have $30,000.00 of income added on to [Brian's] total income. As a result, [Brian's] annual income should be considered to be not less than $125,000 per year.
Patricia also asserted that she is a real estate agent and claimed, because the "market is dry" and "very much down this year," that she was only capable of earning $50,000 in 2007, which she argued was not "anywhere near" what Brian earned from the apartment complex.
Brian filed a cross-motion and submitted a certification in which he claimed he was disabled and had only earned "a fraction" of Patricia's $50,000 income that year. He responded to Patricia's argument about the apartment complex, asserting that one of the four units was "not habitable," because it had been "gutted"; he claimed he was physically unable, and did not have sufficient funds, to rehabilitate that unit. In addition, Brian disputed Patricia's contention that the units could collectively generate $4,000 per month in rent because the units were small one-bedroom apartments.*fn3 He averred that, at present, the three leased units generated monthly rents of $440, $525 and $675. Brian also claimed he has learned from experience that if I raise the rents too high, the tenants leave and then I have to rehabilitate the apartment. If the rents stay at this rate, then tenants stay and pay their rent. In the long run, I make more money [if I maintain the status quo] because I do not have any down time and do not have to spend money to rehabilitate the apartment.
On the return date of the cross-motions, the judge imposed on Brian an obligation to pay child support in the amount of $252 per week. The income attributed to Brian in this calculation consisted of his gross disability payments and an amount that equaled the gross rental receipts from the three rented apartment units. In response to defendant's argument that the apartment building did not yield positive returns due to operating costs and expenses,*fn4 the judge provided this analysis in her oral decision:
Well, I understand your argument, but he has received [$]1,640 a month. I believe I took that figure directly from his papers. And if ...