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Jones v. Sharif

December 23, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1650-02.

Per curiam.


Argued October 26, 2009

Before Judges Baxter and Alvarez.

Plaintiff Karon D. Jones appeals the denial of reconsideration of a December 1, 2008 order of child support. We reverse and remand.

Plaintiff and defendant Abdul-Hassan Sharif, who appears pro se, have three children, ages fifteen, thirteen and eleven.

Plaintiff had primary residential custody of the children, subject to visitation by defendant. At the end of the summer of 2008, the parties' fifteen-year-old daughter expressed the desire to remain in Pennsylvania with her father. Defendant accordingly filed an application to change custody, and plaintiff cross-moved for enforcement of litigant's rights.

The parties have engaged in extensive motion practice regarding child support. Relevant to this appeal is a January 2, 2007 order requiring defendant to pay plaintiff $715 per month in support plus $100 per month towards arrears. The order was entered due in part to the court imputing annual income of approximately $40,000 to defendant based on plaintiff's proofs that defendant was involved in the music promotion business and was either not reporting earned income or not disclosing reported income to the court.

When custody of the fifteen-year old was transferred to defendant, the court instructed the parties to submit pay stubs so that new child support guidelines worksheets could be completed and new child support amounts calculated. See Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix to R. 5:6-A (Guidelines). The parties were not required to file updated case information statements (CIS), however. The December 1, 2008 order directed plaintiff, who retained custody of the parties' two younger children, to pay defendant $22 per week in child support. The Guidelines worksheets supporting this calculation were attached to the order. No statement of reasons was provided. The worksheet amounts include only defendant's earnings at Target, as documented by his pay stubs. No income was imputed to him. The child support calculations were based on plaintiff's gross weekly income of $568 and a net of $477, and defendant's gross weekly income from Target of $340 and a net of $297. It is undisputed that the Guidelines calculations were based solely on the pay stubs submitted by the parties. Plaintiff's motion for reconsideration of the December 1, 2008 order was denied on January 23, 2009, and this appeal followed.

Plaintiff contends that the child support order should be reversed because the trial court did not require the parties to file an updated CIS, nor adequately consider the prior imputation of income of $40,000 per year. Therefore, plaintiff avers that reconsideration should have been granted. Motions for reconsideration are generally left to the discretion of the trial court, and are only granted where "'either (1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence.'" Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div. 2002) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).

We generally defer to a trial court's findings of fact, and ask only if the findings were made based on sufficient credible evidence present in the record considering the proofs as a whole. State v. Locurto, 157 N.J. 463, 470-71 (1999). Nonetheless, having carefully reviewed this record, we agree with plaintiff that the motion judge erred in calculating child support without obtaining a full and accurate financial picture from each party. An opportunity for a more probing inquiry should have been allowed to plaintiff where earnings were previously imputed to defendant because of the concern that he was hiding income.

Rule 5:5-2 requires that a CIS be "filed... in all contested family actions," including those involving issues of child custody. Although the change in child support was incidental to the change in custody, it too required deliberate analysis. Rule 5:5-4(a) states that applications for modification of child support should have appended copies of the prior CIS in addition to a current updated CIS. As we have previously said, "[t]his mandate is not just window dressing. It is, on the contrary, a way for the trial judge to get a complete picture of the finances of the movants in a modification case." Gulya v. Gulya, 251 N.J. Super. 250, 253 (App. Div. 1991). In this case, neither party submitted a CIS prior to the entry of the December support order or the January reconsideration order.

Furthermore, we agree with plaintiff that closer examination of the circumstances was necessary before the court discounted the substantially higher amount of earnings previously imputed to defendant. Plaintiff should have been afforded an opportunity to fully cross-examine defendant, and to engage in at least some discovery, if she wished, on the subject prior to any hearing. It is a given that the trial court is required to consider "all sources of income and assets of each parent" prior to entering a child support order. N.J.S.A. 2A:34-23a(3). The Guidelines themselves specifically note that even sporadic income is to be included in the definition of "gross income." Guidelines, supra, Appendix IX-B to R. 5:6A at 2409 (2010). Plaintiff may ultimately be unable to establish to the court's satisfaction that defendant earns more income than he reports, or that he has the ability to earn more and is voluntarily underemployed. The Guidelines do, however, allow intermittent income to be averaged over a period of thirty-six months before a gross income figure is determined in calculating child support. Ibid. This requirement alone would have required inclusion of the imputed income from 2007. Under these circumstances, therefore, the court should have done more than merely ask defendant directly about his sources of income. Plaintiff should have been afforded the opportunity to conduct discovery, present proofs and cross-examine defendant. See Conforti v. Guliadis, 128 N.J. 318, 322-23 (1992); Tretola v. Tretola, 389 N.J. Super. 15, 20 (App. Div. 2006).

On remand, the parties should file completely updated financial information, including a CIS, and plaintiff's counsel should have an appropriate opportunity to complete discovery prior to a plenary hearing. On remand, the court must allow the parties to make their best efforts to establish "the economic realities" of their lives. Gulya, supra, 251 N.J. Super. ...

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