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Martin E. Mabe v. Nathalie J. Mabe

April 27, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1591-04.

Per curiam.


Submitted February 8, 2012 -

Before Judges Lihotz and Waugh.

Plaintiff Martin E. Mabe appeals from a Family Part post-judgment order denying his motions for modification of his alimony obligation to defendant Nathalie J. Mabe. He also appeals from the order denying reconsideration of the prior decision.

The parties were divorced on June 22, 2005, following their twenty-two year marriage. The parties settled the issues collateral to the dissolution of their marriage regarding their financial obligations to one another, the care of their three children, and the distribution of assets. The terms of settlement were incorporated into the June 25, 2005 dual final judgment of divorce. The support provisions were calculated by imputing a $90,000 income to plaintiff and using defendant's gross annual income of $36,000.

Following the divorce, several motions were filed by the parties respectively seeking modification and enforcement of the previously ordered support obligations. The court scheduled a plenary hearing to consider plaintiff's alleged change of financial circumstances and whether the parties' oldest child was emancipated. Following the two-day plenary hearing, the trial judge imputed $74,000 per year to plaintiff as a liquor salesman, and imputed $35,000 to defendant as a secretary using the Department of Labor and Workforce Development's Wage Compendium (Compendium). On April 7, 2010, the trial judge ordered plaintiff to pay alimony of $1083 per month and child support of $239 per week. Also, $7,565.81 was added to plaintiff's child support arrearage as his share of outstanding medical expenses for the children.

In August 2010, plaintiff, representing himself, moved to stay enforcement of the current support order and sought an additional reduction in the ordered alimony and child support payments, alleging the level of income imputed was unrealistically high and defendant had misrepresented the status of her employment as she was collecting unemployment and "working under the table." Plaintiff asserted it was "physically impossible" for him to comply with the ordered payment obligations and asserted reported wage statistics regarding the median income for his profession was $37,000, requiring review of the court's imputed $74,000 per year. Plaintiff explained his business was shuttered, his home was subject to foreclosure, and he had lost all of his credit card accounts. He continued to look for title and mortgage related employment, but his lack of a college degree impeded any prospects. He stated he was denied unemployment benefits. Consequently, he was retraining, while working any job that came his way.

Plaintiff also asserted defendant was collecting $600 per week unemployment income while working for $500 per week at Hercules Moving and Storage Company (Hercules), working off the books. He attached photographs of defendant's vehicle parked at the business location, eight hours per day. Plaintiff challenged defendant's testimony at the plenary hearing stating she was not working, but had spent a few hours bartering her services at Hercules in exchange for storage services, as she anticipated being evicted following an upcoming Sheriff's sale. He maintained defendant's car was parked at the Hercules' location well into August.

Defendant filed a cross-motion seeking to compel plaintiff's compliance with the order, listing over $50,000 in various support items plaintiff had not paid. She disputed his claims of financial distress, asserting his $1,201,762 in assets included two homes, commercial realty, and three BMWs. She did not mention her employment.

A September 17, 2010 order required the parties to submit additional information and stayed enforcement of the support order pending the court's further review. We were not provided with a transcript of that proceeding and, therefore, do not know what additional information was ordered.

Plaintiff retained counsel and provided a supplemental certification and attachments. He stated defendant had affirmatively misled the court and committed fraud by collecting unemployment while she was otherwise employed. He attached the certification of Rasheed Simmons who worked for United Parcel Service Corporation (UPS). Simmons went to Hercules, a UPS customer, to discuss servicing by UPS. He spoke to defendant, who was on the telephone with a customer. Simmons taped a later conversation with defendant requesting the contact information for the bookkeeper. He asserted she answered the phone, gave him her business email address, and acknowledged her position in sales. Plaintiff noted these facts were in sharp contrast to defendant's testimony at the plenary hearing. He believed she was the sales manager at Hercules and was never unemployed but merely changed jobs. Plaintiff requested discovery, noting defendant did not file a Case Information Statement (CIS) and claiming she hid her money in a bank account titled with her sister, her home was never subject to foreclosure, and she had two "fairly new vehicles."

Plaintiff also challenged defendant's claim of over $7000 for uninsured medical expenses, noting there was never a gap in coverage. He suggested the claims were either not submitted for reimbursement, incurred after the parties' child was deemed emancipated, fraudulent, or purposefully out of network, making them defendant's responsibility. Finally, he identified discrepancies with his probation account, which he maintained erroneously increased his arrearages.

Defendant, now self-represented, provided her pay stubs beginning July 29, 2010, showing she was paid $8 per hour and received commissions. She also attached her unemployment compensation statement paid for the same period. Finally, she provided various documents ...

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