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Edith Savino v. Salvatore Savino


August 30, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2237-03G.

Per curiam.


Submitted August 24, 2011

Before Judges Lihotz and Baxter.

In this post-judgment matrimonial matter, defendant Salvatore Savino appeals from a May 18, 2010 Family Part order modifying child support, arguing the trial court erred by not imputing income to plaintiff, in setting the amount of the arrearage payment and in denying admission of proffered evidence. We have considered each argument in light of the record and the applicable law, and affirm.

After twenty years of marriage, the parties were divorced by entry of an April 22, 2004 final judgment of divorce, which incorporated the terms of their negotiated Property Settlement Agreement (PSA). Defendant was employed as a "nuclear power engineer to the telecommunications field." The PSA stated his gross income was "a minimum of $2,422.00 per week[.]" Plaintiff had returned to part-time work at a hair salon. In the PSA, the parties agreed to impute income of $484 per week to plaintiff. Based upon these earnings levels, defendant was required to pay child support of $209 per week and alimony of $575 per week.

In January 2005, defendant's employment changed. After a lay-off, he collected unemployment and ultimately began consulting work earning $43 per hour. In an order dated November 16, 2007, after considering the parties' motions, the court fixed defendant's annual income at $85,280 and plaintiff's at $19,084. Defendant's child support obligation was reduced to $173 per week; however, defendant's request to modify alimony was denied without prejudice, and the parties were ordered to exchange discovery regarding their respective incomes. Thereafter, motions filed by defendant to reduce alimony were denied without prejudice and motions filed by plaintiff to compel defendant's compliance with the ordered support were granted.

The motion under review was filed by defendant, who again alleged a change of financial circumstance warranted a reduction of his obligations for child support, alimony and satisfaction of the accumulated support arrearage. Defendant chronicled his employment from the divorce to the present. He also asserted plaintiff experienced an increase in her earning capacity as she was "a full-time operator of her own salon, with employees and a significantly higher income." The court allowed a short period of discovery and scheduled an evidential hearing, which was held on May 18, 2010.

In the course of his testimony, defendant reviewed his employment since the divorce, including his current consulting position with Guidepost Global earning $85,000 per year. He delineated the downward change in his financial circumstances including the foreclosure of his residence, the need to file a voluntary Chapter 13 bankruptcy petition, and the liquidation of his retirement account to satisfy debts and the parties' two children's college expenses. He stated he still owed the Internal Revenue Service $9000.

On cross-examination, plaintiff challenged defendant's claims of poverty, introduced a civil action complaint and insurance claims he purportedly made to recover various damages, and questioned him regarding large sums he controlled and passed through his mother's bank account, a prior home equity loan alleged to be used for investment purposes and his work for his friend's company.

On redirect, defendant sought to introduce vocational evaluations prepared in October 2006; one assessed his employability and earnings potential and the other evaluated plaintiff. Plaintiff challenged the information in the evaluation of her earning potential.

In her case, plaintiff submitted a statement of all income and expenses paid from her business account, which she prepared with the aid of her accountant. She operates a children's salon providing $15 haircuts and argued her business was not a cash business and all expenses and income are recorded. She stated the level of income imputed to her at the time of divorce was not earned until recently. Further, she testified she filed for bankruptcy (Chapter 7) in 2009 and liquidated her retirement assets because defendant was not complying with the support orders. In the past, plaintiff paid all her expenses through the business account. She changed that practice so at the time of the hearing, she was paying herself $2000 per month.

The court took supplemental testimony from the parties to discern the marital lifestyle at the time of the divorce. The judge accepted into evidence the parties' respective case information statements and their prepared exhibits regarding income and expenses; however, she reserved her determination on admitting the vocational evaluations, to which plaintiff had objected.

The court accepted defendant's proofs of current employment earning $85,000 annually and that he is not underemployed. With respect to plaintiff, the court added all personal expenses paid for plaintiff from her business account and found she earned $25,318 per year. Accordingly, "plaintiff still maintains an actual need under the circumstances for alimony[.]" After "taking into consideration what is determined to be a 34 percent reduction in income by [] defendant," the court "modified the current alimony payment from $575 per week to a figure which will be retroactive to the filing of the notice of motion . . . February 23, 2010[,]" to $380 per week. The trial judge also recalculated child support, in light of the reduced alimony, "to $214 per week for a total weekly total obligation, alimony and child support, of $594 per week" and ordered the payment of accumulated arrearages of $100 per week. Defendant appeals from this order.

The standards governing our review are well-settled. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resorts, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Consequently, we "should not disturb the factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice" or when we determine the court has palpably abused its discretion. Id. at 412 (internal quotations omitted).

We recognize the special expertise of judges hearing matters in the Family Part, and, therefore, accept the trial judge's conclusion when evidentially supported. Ibid. We reverse only to "ensure that there is not a denial of justice" if the family court's "conclusions are [] 'clearly mistaken' or 'wide of the mark.'" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). However, we are not bound by "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

On appeal, defendant argues generally that the trial court's decision is against the weight of the evidence presented. Specifically, he maintains the court improperly calculated plaintiff's income, which he asserts must exceed the amount imputed at the time of divorce because she operates her own cash-based business on a full-time basis. Defendant argues the court improperly rejected the vocational evaluation and instead based its determination on plaintiff's testimony for which she "did not provide proofs of these expenses," making plaintiff's "verbal accounting of these expenses . . . inaccurate, incomplete and unsupported." We are not persuaded.

The "party seeking modification has the burden of showing such 'changed circumstances' as would warrant relief from the support or maintenance provisions involved." Lepis v. Lepis, 83 N.J. 139, 157 (1980) (citing Martindell v. Martindell, 21 N.J. 341, 353 (1956)). It is the movant's obligation to show that the "terms, in light of changed circumstances, are unfair and unjust." Petersen v. Petersen, 85 N.J. 638, 644 (1981).

Defendant's proofs satisfactorily proved his current level of income, which the court accepted. On the other hand, he provided no documentary proof regarding plaintiff's income; he merely postulated she must be earning more because she operated her own business. The proffer of earning capacity set forth in the vocational evaluation was properly rejected by the trial judge as hearsay.

Plaintiff testified in 2009 that she paid personal and household expenses from her business account, including her first and second mortgage, condominium maintenance fees and car insurance. Also, plaintiff acknowledged that occasionally other personal expenses were satisfied from the business account. With the assistance of her accountant, beginning in 2010, plaintiff began drawing a salary of $2000 each month and paid her personal bills from a newly opened personal checking account. The trial court properly relied on this evidence in calculating plaintiff's annual earnings.

Defendant makes mention of plaintiff's failure to respond to interrogatories. This issue, however, was not presented to the trial court in a motion prior to the hearing. Because the matter was not properly raised below, we decline to address the issue.

On appeal, we are constrained to review only the record of the matter presented to the trial court. R. 2:5-4; Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 52 (2004). We will not consider issues not previously raised before the trial court which do not address "the jurisdiction of the trial court or concern matters of great public interest." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation omitted).

Defendant urges reversal based on the asserted error of barring use of the rejected expert's vocational evaluation as proof of plaintiff's earning potential. This argument is unfounded.

Defendant expected to submit the expert's report in lieu of his testimony. Plaintiff objected, challenging the foundational information upon with the expert's conclusion rested. The court properly determined the report was an out of court statement offered for the truth of the matter asserted, and was inadmissible. N.J.R.E. 801. Defendant suggests N.J.R.E. 803(b)(3) provides an exception to the hearsay bar as the report represents an admissible admission of a party. Alternatively, he suggests the report qualified as a market report, commercial publication or published compilation under N.J.R.E. 803(c)(17). He is incorrect.

New Jersey Rule of Evidence 803(b)(3) addresses out of court statements by a person who "is authorized by a party to make a statement concerning the subject matter of that statement," in which case "the statements made are admissible against the party who authorized them to prove the truth of the matter contained therein." Biunno, Current N.J. Rules of Evidence, comment 3 on N.J.R.E. 803(b)(3) (2011). This rule has no application in respect of the expert opinion testimony solicited by defendant. Plaintiff did not participate in this evaluation, which was based solely on information submitted by defendant's prior attorney. Certainly neither defendant nor his counsel were authorized to provide admissions on behalf of plaintiff.

Further, the expert's opinion does not fall within the narrow expectation allowing use of widely circulated market reports, or similar statistical tabulations. See N.J.R.E. 803(c)(17). An illustration of this would be closing stock prices reported in the Wall Street Journal or, more apt to this matter, the New Jersey Occupational Wage Compendium, published by the Department of Labor. The report offered by defendant was a hired expert's opinion, grounded on information offered by defendant about plaintiff. The report is hearsay and may not be substituted for the expert's testimony, which would be scrutinized under cross-examination. The trial judge did not err in barring its admission.

The final challenge presented by defendant suggests the trial court abused its discretion in not abating the support arrearages. He maintains plaintiff has supported herself with the benefit of the alimony set forth in the PSA, therefore, "equitable considerations dictate whether, and to what extent, the supporting spouse should be forced to pay arrearages." This argument lacks merit. R. 2:11-3(e)(1)(E). The trial judge considered defendant's request and modified the weekly arrearage payment to $100. See Mahoney v. Pennell, 285 N.J. Super. 638, 643 (1995) (holding a change of circumstance cannot "be used as a basis to modify retroactively arrearages which already accrued under a child support order"). See also N.J.S.A. 2A:17-56.23a (providing child support modification is effective from the date the notice of motion was mailed). We find no abuse of discretion.



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