May 13, 2009
SUSAN PLOCHARCZYK, PLAINTIFF-RESPONDENT,
ANDREW PLOCHARCZYK, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, FM-03-92-06X.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 27, 2009
Before Judges Reisner, Sapp-Peterson and Alvarez.
Defendant Andrew Plocharczyk appeals from an amended dual final judgment of divorce, filed on March 20, 2008, awarding plaintiff Susan Plocharczyk $600 a week in alimony. Defendant does not appeal from any other provisions of the judgment. We affirm, substantially for the reasons stated in the written opinion of Judge Haas, dated March 6, 2008.
The facts and procedural history of this case are discussed in detail in the trial judge's opinion and need not be repeated here. In summary, the parties were married for approximately nineteen years. At the time of the divorce, they had one unemancipated child, a ten-year-old daughter who primarily resided with plaintiff.
During the marriage, defendant provided the primary financial support for the family, which he earned by operating two restaurants. He ran the restaurants as cash businesses. The family enjoyed an upper middle-class lifestyle and paid cash for most of their major expenditures. They were able to acquire two houses, paid for extensive renovations, bought a time-share in Mexico, and accumulated substantial savings. They were also able to spend considerable sums on their daughter's participation in pageants.
The judge began his opinion by setting forth in detail his conclusions that plaintiff gave straightforward and credible testimony, while defendant's testimony was evasive and incredible. Those credibility determinations in turn were a significant factor in the judge's decisions regarding the parties' finances. Based on the reports of financial experts, and on credibility determinations, the judge found that defendant's income was considerably higher than that reported on his tax returns. This conclusion was also supported by defendant's settlement with the State Division of Taxation, in which he stipulated to a much higher annual income than he had reported on his returns. Based on this evidence, the judge imputed income of $170,000 per year to defendant.*fn1
Additionally, the judge concluded that defendant had no good-faith basis for selling one of his two restaurants during the pending divorce case, despite a court order prohibiting the parties from dissipating assets. The judge found that although defendant owed $70,000 in back taxes, he had other readily-available sources of funds to pay the taxes and had no need to sell the restaurant. Judge Haas also credited plaintiff's financial expert, who opined that the sale was not an arms-length transaction. The judge further found that defendant either had obtained, or could readily obtain, employment at another restaurant to replace any income lost as a result of the sale. Accordingly, the judge declined to reduce his calculation of defendant's annual income because of the sale.
After reviewing in detail all of the factors required for an alimony determination, N.J.S.A. 2A:34-23(b), Judge Haas concluded that plaintiff needed $600 a week in alimony "to bring her to the level of the parties' marital lifestyle." In reaching that number, the judge considered that plaintiff's earnings not only left her short of funds to meet the day-to-day marital lifestyle, but also left her unable to save money as the couple had been able to do during the marriage. See Jacobitti v. Jacobitti, 135 N.J. 571, 575-76 (1994).
On this appeal, defendant challenges the alimony determination in the following points of argument:
POINT I: THE COURT ERRED WHEN IT ORDERED DEFENDANT TO PAY PERMANENT MONTHLY ALIMONY IN THE AMOUNT OF $2580 AND $1393 IN CHILD SUPPORT BASED UPON A SHORTFALL OF $601 IN PLAINTIFF'S BUDGET.
POINT II: THE COURT MISTAKENLY ASSUMED THAT MR. PLOCHARCZYK CLOSED GAETANOS CINNAMINSON RESTAURANT WITHOUT NOTICE TO DEFENSE OR PLAINTIFF[']S COUNSEL AND RELIED HEAVILY ON THAT ASSUMPTION.
POINT III: STANDARD TO VACATE ORDER FOR ALIMONY.
POINT IV: THE COURT ABUSED ITS DISCRETION WHEN IT RELIED SOLELY UPON THE PRELIMINARY LETTER BY DEFENDANT[']S AND PLAINTIFF[']S EXPERTS AND EXCLUDED DEFENDANT'S EXPERT[']S MOST CURRENT REPORT.
After reviewing the record, including the entire trial transcript, we conclude that these arguments are without sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E). Nonetheless we add the following comments. We review the trial judge's alimony determination for abuse of discretion. See Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993); Perkins v. Perkins, 159 N.J. Super. 243, 247-48 (App. Div. 1978). We will not disturb the trial court's decision so long as it is supported by substantial credible evidence and is consistent with applicable law. Cesare v. Cesare, 154 N.J. 381, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We owe particular deference to the trial judge's credibility determinations and to the Family Part's expertise in addressing matrimonial issues. Cesare, supra, 154 N.J. at 412.
Based on our limited standard of review, we find no basis to interfere with the decision of the trial judge. Judge Haas made detailed findings of fact, including credibility determinations which he cogently explained. His decision is supported by the trial evidence and is entirely consistent with applicable law. Contrary to defendant's appellate argument, in weighing credibility, the judge did not rely primarily on defendant's violation of the court order in selling one of the restaurants. Rather the judge relied on his observation of defendant's trial testimony, including defendant's demeanor and his failure to back up his testimony with financial details.
Our courts have recognized that "it is the self-employed obligor who is in a better position to present an unrealistic picture of his or her actual income" than a W-2 wage-earner. Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006). See also Donnelly v. Donnelly, 405 N.J. Super. 117, 128-29 (App. Div. 2009). Because defendant runs a cash business and underreported his income in the past, Judge Haas properly imputed income to defendant consistent with the substantial credible evidence in the record.