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Susan Toth v. Brian Janssen

September 20, 2012

SUSAN TOTH, PLAINTIFF-APPELLANT,
v.
BRIAN JANSSEN, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-374-96.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 15, 2012

Before Judges Yannotti, Espinosa and Kennedy.

Plaintiff appeals from an order of the court that fixed her child support obligation and made it retroactive to a date prior to the date defendant filed a motion for modification of child support. We affirm in part, reverse in part and remand for further proceedings.

Following the parties' divorce in 1998, plaintiff was the parent of primary residence for their two children. In July 2009, plaintiff filed a motion to relocate to California with the children so she could care for her terminally ill father. The court granted her request with respect to the parties' daughter but denied the request as to their son and designated defendant the parent of primary residence as to him. Neither party was ordered to pay child support.

In December 2009, the parties' daughter chose to return to New Jersey to reside with defendant. In February 2010, defendant filed a motion for a change of custody and modification of child support. The court awarded primary custody of both children to defendant and, when the parties failed to mediate the support issue, held a plenary hearing.

Defendant is self-employed as a painter. The court determined that his average earned income was $35,000 per year. The court rejected plaintiff's argument that defendant was underemployed and declined to impute income to him based upon the New Jersey Department of Labor Prevailing Wage Rate for a painter of new construction, which showed a range of wages from $72,570 to $84,614 per year.

Plaintiff was employed as a nurse for most of the period from 1991 to 2006. She earned her highest salary, $80,000, between 2002 and 2003. At her last job, as a floor nurse at Hunterdon Medical Center from 2004 to 2006, she earned an annual salary of $65,000. She was not employed after moving to California with her husband to care for her father. She claimed that, in addition to her responsibilities related to her father, she was unable to work because she was disabled due to a back injury. The court rejected plaintiff's claim that she was unable to work because she was disabled and found that she was willfully unemployed. The court declined to apply either the California minimum wage or the California Department of Labor Wage Statistics for a registered nurse. Instead, the court imputed the amount she had earned at her last employment, $65,000, to plaintiff as her income.

The court entered an order in January 2011 that modified the child support as follows:

The child support for the period of October 25, 2008, to September 1, 2009 shall be negative $57[.]00 per week payable to the Plaintiff resulting in a credit to the Defendant of that amount for that time period. The child support for the period of September 2, 2009, to December 10, 2009, shall be $102.00 per week payable by the Plaintiff to the Defendant. The child support from December 11, 2009, to the present shall be $259.00 per week payable by the Plaintiff to the Defendant.

In this appeal, plaintiff argues that the trial court erred by: failing to afford her some credit for the time spent caring for her father; making the support award retroactive to a date prior to defendant's application; and in its calculation of defendant's income.

In reviewing a decision of a family court, we "defer to the factual findings of the trial court," N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008), in recognition of the "family courts' special jurisdiction and expertise in family matters . . . ." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, and credible evidence." Cesare, supra, 154 N.J. at 411-12. It is only "when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'" that we will intervene and make our own findings "to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v G.L., 191 N.J. 596, 605 (2007); see also Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

Applying these principles to the facts here, we are satisfied that there was an adequate basis in the record for the trial court's conclusion that an income of $65,000 should be imputed to plaintiff. Her employment history demonstrated her capacity to earn this amount and the California Department ...


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