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Mathias v. Mathias

August 3, 2009

DANIELLE E. MATHIAS, PLAINTIFF-APPELLANT,
v.
TIMOTHY S. MATHIAS, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Salem County, FM-17-238-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 3, 2009

Before Judges Rodríguez and Waugh.

This appeal arises from the dissolution of a fifteen-year marriage between plaintiff Danielle Mathias and defendant Timothy Mathias. The trial court ordered Timothy to pay Danielle permanent and rehabilitative alimony. Danielle argues on appeal that the alimony awards are too low, and that the trial court erred by imputing too little income to Timothy and too much income to her. We affirm the trial court's findings with respect to Timothy's earning capacity, but vacate the present and future incomes imputed to Danielle and remand to the Family Part for further proceedings consistent with this opinion.

I.

We discern the following facts from the record. The parties were married on November 14, 1992. They have two children: a son, born May 1, 1993; and a daughter, born January 8, 1996. Danielle was twenty years old and working as a hair stylist at the time of their marriage. Timothy was thirty years old and employed as a state trooper.

Shortly after their son was born, the parties agreed that Danielle would quit her job as a hair stylist and focus on their son. Although Danielle worked intermittently throughout the marriage, Timonthy's earnings were the primary source of income for the family.

According to the parties' shared parenting plan, Danielle is the parent of primary residence and Timothy has 130 overnights with the children per year, consisting of each Wednesday and every other Friday, Saturday, and Sunday. They live less than a mile apart, which permits the children to ride their bicycles to each parent's home.

At the time Danielle left her position as a hair stylist in 1993, she was working on an hourly basis, approximately eighteen hours per week, earning $8 per hour plus tips.

Prior to having children, Danielle had aspirations to pursue a college education. Consequently, when their youngest child started preschool, the parties discussed Danielle's desire to return to school. In 1999, Danielle was briefly registered as a full-time community college student. However, she withdrew before classes commenced because Timothy made comments that made her feel guilty about the cost of the education and accompanying child care.

In 2004, Danielle began working as a teacher's aide at her son's elementary school, earning $1,353 that year. Danielle also returned temporarily to her prior position as a hair stylist, before eventually accepting a full-time position as a teacher's aide in 2005. She continued working full-time as an aide, grossing $13,151 in 2005 and $17,748 in 2006.

About six months prior to separating, the parties revisited Danielle's desire to return to school. At that time, Timothy had plans to retire within three years. The parties determined that Danielle should pursue a teaching career so that she could have her summers off, allowing the parties to spend their summers at a shore property they owned.

In January 2007, Danielle began taking a night class, but continued to work full-time at the elementary school as an aide. She wanted to attend school on a full-time basis, but Timothy was concerned that they would not be able to manage without her earnings. They discussed having Danielle earn supplemental income cleaning homes over the summer months if she quit her aide position and went to school full-time. They also considered going without her income in the summer of 2007 to see if they could forego her earnings permanently. The parties never implemented either plan. The parties separated in May 2007 and Danielle filed for divorce one month later.

In the fall of 2007, Danielle quit her position as a school aide and began attending community college full-time. She also began working part-time at a restaurant, alternating as a waitress, earning $2 per hour plus tips, and a food server, earning $7 per hour. There was considerable disagreement during the trial as to whether the parties had agreed to Danielle's quitting her school-aide position and attending school full-time. Danielle's gross income for 2007 was $16,519.

At the time of trial, Danielle was still enrolled as a full-time student, hoping to take an examination to become a registered nurse (RN) in 2010. Danielle submitted statewide and county-specific occupational wage data, which indicated that an RN in Salem County could potentially earn $52,790 annually. She emphasized that, because of the numerous licensing prerequisites, it was not possible to establish an exact date for her licensing as an RN. During cross-examination, however, Danielle confirmed that she planned to graduate in June 2010 and expected to take her state licensing examination as soon as it was offered.

As of the time of trial, Danielle was still working part-time at a restaurant. She stated that in early 2008 she had been working thirty to forty hours per week, but had reduced her hours to ten to fifteen hours per week because she was experiencing recurring headaches. Danielle supplemented the income she earned at the restaurant by working as a caretaker for a disabled elderly woman one night a week, at the rate of $12 per hour. She was uncertain whether she could continue the caretaking job because she anticipated conflicts with her school schedule.

Danielle testified at length about the time demands of her studies, and the challenges she experienced in managing work, school, and parenting obligations. As of the time of the trial, Danielle would finish school by 1:45 p.m. four days per week, and by 9:00 a.m. on Fridays. She agreed that her children, ages fifteen and twelve, did not require a babysitter. She asserted that, once the parenting plan went into effect in November 2007, Timothy had "limited" his help to the days that he was responsible for the children.

Danielle also testified that she still held a valid New Jersey cosmetology license, and conceded that she had earned more in 1993 as a hair stylist than she did now working at the restaurant. However, she testified that she did not intend to use her cosmetology license in the future. She stated that, although she had considered working somewhere other than at the restaurant, she had not actually applied anywhere else.

Timothy worked as a state trooper throughout the marriage. He was forty-five at the time of trial, and ten years away from mandatory retirement. His respective gross earnings in 2004, 2005, 2006, and 2007, were $132,318, $116,053, $125,207, and $104,083.

Beginning in 2006, overtime opportunities for state troopers were reduced. This led the parties to discuss their need to decrease spending. They also discussed the feasibility of Timothy seeking a transfer to improve his chances for a promotion. Timothy eventually obtained a transfer in 2008, and was working as a "road duty trooper" at the time of trial.

However, he still did not earn as much in 2007 as he had in the three previous years.

Timothy testified that he had worked only six days of overtime in 2007, but conceded that he had not sought any overtime assignments since Danielle filed the complaint for divorce. He denied deliberately cutting his overtime earnings in 2007, and maintained that the budgetary curtailment of overtime opportunities had been compounded by his obligations to the children. Timothy further testified that he would not seek overtime even if the opportunities were available, because his primary objective was to be available for his children. At trial, Danielle pointed to statements made by Timothy in prior court filings that contradicted his explanation at trial, undermining his credibility on the issue.

Timothy emphatically denied Danielle's allegation that he did not help her with the children. He stated that he had in fact "begged" her to have more time with the children. The trial judge permitted that testimony, over objection, to rebut ...


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