On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-651-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Koblitz and Haas.
This case returns to us after remand proceedings directed by our previous opinion. See Eick v. Eick, No. A-0015-09 (App. Div. August 18, 2010). Following a hearing, the remand court granted plaintiff's motion to reduce his alimony and child support obligations. Plaintiff appeals, claiming that the court erred. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand the matter to the trial court for further proceedings in conformity with this opinion.
We begin by referencing the essential background facts as set forth in our earlier opinion. Plaintiff and defendant were married in February 1978 and divorced in February 2007. (slip op. at 2). They have three children, the oldest of whom was already emancipated at the time of the divorce. At that time, neither of the two younger children was in college. Ibid.
Plaintiff has been self-employed as a bookbinder since 1991. Ibid. Defendant is employed at Fairleigh Dickinson University (FDU). Ibid. At the time of the divorce, the parties used their 2005 income to set plaintiff's support obligations. Ibid. At that time, plaintiff's annual income was $117,000 and defendant's was $29,000. Ibid. The parties agreed that plaintiff would pay defendant $1,500 per month in permanent alimony and $2,000 per month in child support for the two unemancipated children. Ibid. This figure was in excess of the Child Support Guidelines and, therefore, was not subject to cost of living adjustments. Ibid.
On March 10, 2009, plaintiff filed a motion to reduce his support obligations based on a claim of changed circumstances, namely that the income he derived from his bookbinding business had drastically declined. Ibid. He asserted that his main customers were law firms, which were now using online research databases for their publication needs. Id. (slip op. at 2-3). Defendant filed a cross-motion to enforce plaintiff's support obligations. Id. (slip op. at 4).
The judge who heard oral argument on the motion ruled that plaintiff had not met his burden of proving that there had been a permanent change of circumstances in terms of his earning ability. Id. (slip op. at 4-5). Plaintiff appealed. We found that plaintiff had made a prima facie showing of changed circumstances sufficient to warrant discovery and a plenary hearing. Id. (slip op. at 8). Therefore, we reversed and remanded the matter for further proceedings. Ibid.
The remand judge conducted a three-day evidentiary hearing on March 8, 9 and 10, 2011. The parties each testified and defendant also presented the testimony of a certified public accountant, who was accepted by the court as an expert in forensic accounting and cash flow analysis.
Plaintiff explained the nature of his bookbinding business and the changes to the industry which, he asserted, were reducing his ability to earn at his prior levels. His clients were now using digital discs and online sites to meet their data storage needs. While, in the past, plaintiff would sometimes receive a "big binding job" from a law firm that would bring in up to $12,000, he had not had any such big jobs since 2009. Plaintiff had laid off his last remaining employee in 2009. He had attempted to raise his bookbinding rates to bring in more revenue, but this just priced him further out of the market.
As to his income, plaintiff provided his business records and tax returns. Based upon his tax returns, the remand judge found that plaintiff's annual income for the five years preceding the plenary hearing was as follows:
2006: $97,307 2007: $89,270 2008: $100,055, which included a $22,892 IRA withdrawal 2009: $114,761 2010: $71,770 Defendant's expert did not seriously dispute these income figures in any significant way. He performed a five-year cash flow analysis of plaintiff's bookbinding business, but he did not review any information for 2010. While the expert opined that plaintiff earned more than what was indicated on his tax returns, his overall analysis confirmed plaintiff's contention that his business had declined since 2005, the year the parties had used to determine their financial obligations at the time of their divorce.
During the period after the divorce, plaintiff admitted that he had spent money repairing a boat he owns and had taken vacations out of the country. He also acknowledged that his deposition testimony about the boat had not been completely truthful. Nevertheless, the remand judge found that plaintiff's testimony concerning the downturn of his business was "plausible" and that plaintiff's "suspicious, if not outright false," testimony about the boat was "not a factor which is determinative of the ...