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Fitzgerald v. Duff

Superior Court of New Jersey, Appellate Division

June 7, 2013

MARIAN M. FITZGERALD, Plaintiff-Respondent,
v.
JASON D. DUFF, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 19, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FD-03-952-12.

Mark J. Molz argued the cause for appellant.

Brian L. Calpin argued the cause for respondent.

Before Lihotz and Mantineo, Judges.

PER CURIAM

Defendant Jason D. Duff appeals from an August 8, 2012 order denying reconsideration of a June 6, 2012 order fixing his child support obligation after imputing income at a level defendant maintains was unfounded. We reverse the order denying reconsideration and remand the matter to the Family Part for further proceedings, including a plenary hearing if necessary to determine defendant's income and/or his ability to earn income for the purpose of calculating child support.

Plaintiff Marian M. Fitzgerald is the maternal grandmother and legal custodian of defendant's seven-year–old child. After charges were filed accusing defendant of physically abusing the child, plaintiff was awarded sole legal and physical custody and defendant's parenting time was ordered to be supervised. The record shows child support was initially fixed on March 12, 2012, by a child support hearing officer, who calculated defendant's obligation under the New Jersey Child Support Guidelines, R. 5:6A. Using a gross weekly income of $384, and accounting for child support defendant paid for an older child, the hearing officer recommended defendant pay $67 per week.[1] It is not disputed that the recommendation was later entered as an order by a Family Part judge.

On April 30, 2012, defendant filed a motion to recompute child support using his actual earnings and parenting time. Defendant asserted an error was made in the hearing officer's child support calculation, which he incorrectly states required his payment of $83 per week.[2] Defendant attached documentation showing he electronically filed his 2011 income tax return, which reported taxable income of $21, 000. The documents reference defendant was entitled to one-half the business income from an entity known as "Mr. Tattoo 2 LLC, " located on High Street in Burlington City.

In response, plaintiff filed a certification opposing modification of the support order and suggesting defendant's accurate income warranted a higher child support obligation. She argued defendant had not fully disclosed his income, much of which he did not report, and had not attached his complete income tax return. She provided copies of a web site describing defendant as the owner of Mr. Tattoo, which operated two New Jersey locations, listed a Wilmington, Delaware shop, and advertised "Philly Shop coming soon[, ]" suggesting a location would open in Philadelphia, Pennsylvania. Plaintiff averred defendant provided tattoo services for professional football players and noted his web page featured three staff tattoo artists, offered body piercing, and sold clothing under the brand "Addicted." Plaintiff attached photographs taken from defendant's Facebook page of defendant's speed boat, which is named "Addicted"; a 2011 Chevrolet Camaro, parked in front of his store and maintained defendant also owned a Lincoln Navigator; and his elaborate, tropical wedding, diamond engagement and wedding bands and him throwing $100 bills. Finally, she supplied copies of defendant's various social media comments evincing his success, including his statement that in four hours he earns $250, his schedule had "been packed so [he could] pay for this wedding[, ]" and he bought television advertising spots.

During the motion hearing before the Family Part, no testimony was taken.[3] The judge accepted plaintiff's position that her proofs show defendant earned more than the $384 per week as used by the hearing officer to calculate child support. The judge specifically commented on the defendant's success, evinced by the business' elaborate web site, and the multiple store locations in two states, and determined imputation of income in excess of the amount claimed was appropriate. The judge stated, "whenever you have a cash business, the [c]ourt has to be . . . circumspect[, ] because I do believe that there's more money than what's available or what's being shown on the tax returns." The judge concluded:

[B]ased on everything before me, I believe an imputation of income to the defendant is appropriate. He has a business with two locations. It's . . . a large cash business and the [c]ourt believes that the records aren't truly reflective of the income. The problem is that the [c]ourt has nothing other than what was stated last time, which is that there was evidence based on an internet page on MySpace that defendant makes in excess of $250, 000 from the business of which he's the sole owner.
I have the web page, I have photographs of his boat . . . . And certainly the boat, in and of itself, indicates a ...

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