On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2237-03G.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...