July 27, 2010
ABAYOMI OKI, PLAINTIFF-APPELLANT,
IYABO OKI, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2279-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 25, 2010
Before Judges Gilroy and Simonelli.
Plaintiff Abayomi Oki appeals from that part of the October 7, 2008 dual judgment of divorce that incorporated the trial judge's written decision of September 5, 2008, awarding defendant Iyabo Oki permanent alimony of $800 per month, to be paid at the rate of $400 bi-weekly. Plaintiff also appeals from the January 9, 2009 order denying his motion for reconsideration. We affirm in part, reverse in part, and remand for further proceedings.
The following facts are derived from the evidence presented at trial.
The parties were married on October 25, 1982, and divorced on October 7, 2008. Three sons were born of the marriage, all of whom are emancipated.
During the marriage, plaintiff worked two jobs: (1) as a school teacher with the Jersey City public schools, a position he has held since 2002; and (2) as social counselor at Essex County Hospital (ECH) in Cedar Grove, a position he has held since 1988. His 2007 gross income was $80,617, of which approximately $55,000 was attributable to his teaching position. His teaching position income for 2008 was $55,523.
Defendant worked as a teacher with the Newark public school system, a position she has held since 2001. Her 2007 gross income was $52,956, and her 2008 gross income was $57,500.
The parties purchased a home in South Orange in 1994. At the time of trial plaintiff was renting a one bedroom apartment in Irvington, and defendant resided in the marital home.
Plaintiff was working at ECH and Great Stone Psychiatric Hospital (Great Stone) at the time the parties purchased the marital home. Prior thereto, plaintiff worked two or three jobs at a time to make ends meet. He was terminated from his job at Great Stone in 1996, and thereafter began working as a substitute teacher while still working at ECH. When plaintiff obtained his teaching certificate in 2002, teaching became his primary job and ECH his secondary job.
Early in the marriage defendant also worked two jobs. From 1987 to 1999, she worked at a bank. Prior to becoming a teacher, she worked concurrently as an adjunct professor at Kean University and as a tutor to young children. She stopped working two jobs when she became a full-time teacher.
During the course of the marriage, the parties obtained several loans to maintain their home and pay for their sons' college educations. In 2001, plaintiff filed for bankruptcy.
According to defendant's Case Information Statement (CIS), she had total monthly expenses of $8267, consisting of $3907 in shelter expenses, $679 in transportation expenses, and $3681 in personal expenses. Her monthly expenses included $81 for garbage removal; $140 for lawn care; $250 for cable television; $67 for internet service; $320 for dry cleaning and laundry; and $350 for hair care. She also listed as expenses the monthly payments for two of her sons' student loans, for which she was a co-signer but made no payments.
Plaintiff disputed defendant's monthly expenses, claiming they were highly exaggerated. For example, he claimed that garbage removal was $81 quarterly, not monthly; and, lawn care was only $30-$40 for each lawn cut, which was only a couple of times per month for four or five months every year. According to plaintiff's CIS, he had total monthly expenses of $6163, consisting of $2198 in shelter expenses, $1085 in transportation expenses and $2880 in personal expenses.
In a written decision rendered September 5, 2008, the trial judge found as follows regarding defendant's need for alimony and plaintiff's ability to pay:
[Defendant] earns $57,500 as a teacher in Special Ed in the Newark Public City school system working a typical school year from 8:00am to 3:15pm. [Plaintiff] earns an equal amount from the Jersey City Public School system working the same hours. [Plaintiff] also holds a second job at [ECH] in Cedar Grove, N.J. from 11:30pm to 7:30am. Last year he earned a total of $81,000. The disparity in the parties' income exists only because [plaintiff] holds two jobs, and [defendant] holds one. From her recently submitted [CIS], [defendant] lists her needs as $8267.00, or $99,204 per year. She earns $4,417 or $53,000 per year as a teacher. [Defendant] appears to have a shortfall of $3,850 and would need $46,200 yearly in alimony to meet her needs. [Plaintiff] lists his needs as $6,263 monthly. He has a college loan, two pension loans, an IRS debt and credit card debt. He earns $6750.00 [per month] and would be left with $487 to contribute to [defendant's] needs.
As to the parties' standard of living during the marriage and the likelihood that each party could maintain a reasonably comparable standard of living, the judge found as follows:
[T]he parties had a combined income of $135,000. They resided in a leafy Essex County suburb. [Plaintiff] petitioned for bankruptcy in 2000 and is presently indebted $33,700. [Defendant] has debts of $13,900 and is co-signer of [the parties' sons'] student loans which total $187,000. There is no testimony in the case of vacations, only frequent trips by [defendant] to Nigeria. There is no testimony regarding dining out at restaurants or attending concerts, movies, etc. [Defendant] drives a fifteen year old jeep, and [plaintiff] drives an eight year old Chevrolet. In 2004, all three children were attending college at the same time. The Court infers from the testimony that the parties spent their income on the education of their children and care and maintenance of their home. Their lifestyle was frugal and modest. . . . The parties remain gainfully employed as teachers, earning approximately the same amount of income $56,000. It is likely that the parties can maintain a reasonably comparable standard of living as that during the marriage.
As to the parties' history of financial contributions to the marriage, including contributions to their sons' care and education, the judge found that "[b]oth parties made significant contributions to the marriage. [Plaintiff] has maintained two jobs during the marriage. [Defendant] has always worked during the marriage and sometimes maintained two jobs while being the primary caretaker of the children and the marital home." The judge then adjusted the parties' needs and arrived at the alimony award as follows:
Both parties have exaggerated their expenses. Both list the mortgage and the costs of home ownership when the house they own will soon be sold. [Defendant] lists the costs of her debt payments as well as that of her children. She will be called upon to pay the children's student loans only if the children do not pay their loans.
Reducing [defendant's] shelter expenses and debt expenses and leaving intact her personal expenses and a reasonable rental expense, [defendant] will only have a shortfall of $800.00. Reducing [plaintiff's] debt service and mortgage expense likewise will enable him to make a contribution to [plaintiff's] shortfall.
On appeal, plaintiff contends that the trial judge erred in awarding defendant permanent alimony, by including the income he received from his second job, and by not imputing income to defendant for the summer months when she does not work. Plaintiff also contends that the judge failed to make sufficient findings of fact and conclusions of law.
We "give deference to a trial judge's findings as to issues of alimony, if those findings are supported by substantial credible evidence in the record as a whole." Cox v. Cox, 335 N.J. Super. 465, 473 (App. Div. 2000). To vacate an award of alimony, we "must conclude that the trial court clearly abused its discretion, failed to consider all of the controlling legal principles, or . . . must otherwise be well satisfied that the findings were mistaken or that the determination could not reasonably have been reached on sufficient credible evidence present in the record[.]" Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993) (citations and quotations omitted), appeal after remand, 290 N.J. Super. 35 (App. Div. 1996).
The award of alimony is largely discretionary with the trial judge. Steneken v. Steneken, 367 N.J. Super. 427, 434-35 (App. Div. 2004), aff'd in part and modified in part, 183 N.J. 290 (2005). That discretion is informed, however, by thirteen factors set forth in N.J.S.A. 2A:34-23(b). Those factors are intended to further the overarching goal of alimony, which is to assist the supported spouse in maintaining a lifestyle reasonably comparable to the one enjoyed during the marriage. Crews v. Crews, 164 N.J. 11, 16 (2000). The trial court is required to analyze all thirteen factors and in contested define the marital standard of living pursuant to the fourth factor as a base line for potential future modifications. Id. In addressing the obligated spouse's earning capacity, it is within the judge's discretion to "employ as a benchmark the amount of time plaintiff had devoted to his work during the marriage and to expect him to continue working at that level." Clarke v. Clarke, 349 N.J. Super. 55, 58 (App. Div. 2002).
Applying these standards, we conclude that the judge properly included plaintiff's income from his second job in establishing the parties' standard of living during the marriage and in calculating alimony. Any income generated by the supporting spouse during the marriage is relevant to the proper determination of an alimony award. See Rogers v. Gordon, 404 N.J. Super. 213, 223-25 (App. Div. 2008) (holding in calculating alimony, that the trial court properly imputed income for a husband's "side jobs" that generated additional income during the marriage); Clarke, supra, 349 N.J. Super. at 58 (holding that the trial court may consider overtime employment when determining the proper amount of alimony). However, the judge erred in considering the gross amount. The law requires the court to consider net income, not gross income when determining support obligations. Caplan v. Caplan, 364 N.J. Super. 68, 89 (App. Div. 2003), aff'd, 182 N.J. 250 (2005).
We also conclude that the judge did not abuse his discretion in refusing to impute income to defendant for a summer job. A party may not deliberately remain underemployed in order to shirk his or her support obligations, and a trial court has the discretion to impute a higher income to any individual it believes is doing so. Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001). There are, however, no bright-line rules which govern the imputation of income. Storey v. Storey, 373 N.J. Super. 464, 474 (App. Div. 2004). Defendant is not underemployed. She has a full-time job generating full-time income. Plaintiff cites no authority either imputing income to a teacher who does not work in the summer, or holding that a teacher who does not work in the summer is "underemployed." That said, we still find a need to reverse and remand.
In addition to improperly using the parties' gross income in his alimony calculation, there are other errors. In alimony cases, the trial judge must analyze the thirteen factors in N.J.S.A. 2A:34-23(b). The judge must also articulate, on the record, the "specific findings of fact and conclusions of law" that support his or her conclusions. Pressler, Current N.J. Court Rules, comment on R. 1:7-4 (2010). Naked conclusions are insufficient. A judge must fully and specifically articulate findings of fact and conclusions of law. Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996); Curtis v. Finneran, 83 N.J. 563, 570 (1980). If sufficiently clear factual findings are absent from the record, we will remand to the trial court for additional findings. Curtis, supra, 83 N.J. at 571.
In analyzing N.J.S.A. 2A:34-23(b)(1) (the actual need and ability of the parties to pay), the judge found that defendant had a $57,500 yearly gross income. However, without explanation, he used $53,000 in his alimony calculation. Also, without explanation, the judge ordered plaintiff to pay at the rate of $400 bi-weekly. This appears to result in an overpayment because $800 a month totals $9600 yearly but twenty-six bi-weekly payments of $400 totals $10,400 yearly.
The judge also did not sufficiently explain how he arrived at the $800 shortfall amount. Relying on defendant's CIS, the judge found her needs to be $99,204 yearly, or $8267 monthly. Then, using defendant's $53,000 yearly gross income, the judge determined that she would require $46,200 yearly, or $3850 monthly to meet her needs (i.e. $99,200 minus $53,000). The judge then modified her needs by reducing certain expenses, and adding a "reasonable rental expense." However, the judge made no findings as to which expenses he reduced or their amounts, and he did not set a reasonable rental expense amount. Also, although the judge found that both parties had exaggerated their expenses, he did not specify which expenses had been exaggerated, and did not address plaintiff's claim that defendant had greatly exaggerated her expenses.
Accordingly, we remand this matter for a hearing to reconsider the alimony award. Prior thereto, the parties shall file an updated CIS, and may present any other evidence relevant to the alimony issue.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
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