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Fusca v. Fusca

Superior Court of New Jersey, Appellate Division

August 28, 2013

KRISTINE L. FUSCA, Plaintiff-Respondent,
v.
RALPH FUSCA, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 30, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Somerset County, Docket No. FM-18-444-08.

Fleischer & Fleischer, L.L.C., attorneys for appellant (Richard E. Fleischer, on the brief).

Diamond & Diamond, P.A., attorneys for respondent (Richard S. Diamond and Lynn M. Matits, on the brief).

Before Judges Hayden and Hoffman.

PER CURIAM

In this post-judgment matrimonial matter, defendant Ralph Fusca appeals from the May 4, 2012 Family Part order denying his application for a downward modification of alimony and child support and granting plaintiff Kristine L. Fusca's application for counsel fees. We remand to the trial court solely for the purpose of entering an order correcting the calculation of the counsel fee award. In all other aspects, we affirm.

The parties were married in March 2001 and have four children together. Plaintiff also had a child who lived with the parties and was supported by defendant.

Plaintiff filed a complaint for divorce on October 15, 2007. After a three-day trial, the trial judge issued a judgment of divorce and a lengthy written opinion on September 30, 2011. He made extensive factual findings in support of his decision to award plaintiff $336 per week in child support, $750 per week in limited duration alimony for four years, and $220 per week in child care costs.

In determining support, the trial judge imputed $30, 000 in annual income to plaintiff, who had been employed as a hairdresser but had not worked outside the home during the marriage, and $150, 000 to defendant, who was employed in banking and finance. The judge found that from 1999 to 2008, defendant had been employed as a Vice President at a subsidiary of the Bank of New York Mellon, and earned in $176, 769 in 2007, $195, 346.09 in 2008, and $205, 793 in 2009. The judge found it "troubling" that defendant had represented in pendente lite applications filed in 2008 that his income in that year would total $99, 996, when defendant ultimately earned almost double that amount.

In January 2009, defendant was terminated from his position. In a pendente lite application filed in 2009, defendant represented that his severance pay "would run out shortly, " and that he did not anticipate earning more than $92, 000 that year. In June 2009, just before his severance pay ended, defendant was "rehired" at another subsidiary of the Bank of New York. Defendant claimed, in another pendente lite application, that his new salary "would be dramatically less." His gross income in 2009 ultimately totaled $205, 000 in salary, unemployment compensation, and severance. Despite his increased income, defendant failed to meet his pendente lite support obligation of $6010 per month, and continued to accrue arrears.

During the divorce trial in March 2011, the trial judge found, defendant failed to present a "true picture of his income" because he focused on his base salary, which averaged $83, 262, and ignored his bonus compensation, which doubled that amount. Moreover, the trial judge noted that defendant had been "manipulating his tax exemptions" by reducing his exemption from twelve to zero, contributing to pre-tax deductions, and maximizing his pension deductions to "reduce his cash flow in a manner that makes it difficult or impossible for Family Support Services to collect the court ordered support."

Additionally, although defendant claimed he had been actively seeking more lucrative employment, the trial judge observed that defendant "never produced during discovery or at trial any documentation demonstrating his efforts to find a job during this time frame." With regard to defendant's efforts to find employment before June ...


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