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Tominus v. Tominus

Superior Court of New Jersey, Appellate Division

October 18, 2013

SHAWN TOMINUS, II Plaintiff-Respondent,
v.
JAIME TOMINUS, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 16, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2705-11.

Marc J. Rogoff argued the cause for appellant.

Elizabeth A. Smith argued the cause for respondent (Dennigan Cahill Smith, L.L.C., attorneys; Ms. Smith, of counsel and on the brief).

Before Judges Yannotti and St. John.

PER CURIAM.

Defendant Jaime Tominus challenges several provisions of a final judgment of divorce entered by the Family Part on August 1, 2012. For the reasons that follow, we affirm in part and reverse in part.

I.

The parties were married on October 17, 1997. The parties had three children, plaintiff filed a complaint seeking dissolution of the marriage, on the ground of irreconcilable differences. The Family Part judge conducted a trial in the matter in June 2012.

On August 1, 2012, the judge placed her findings of facts and conclusions of law on the record. The judge rejected defendant's application for permanent alimony, and instead awarded defendant limited duration alimony of $408 per month for eight years. The judge ordered the equitable distribution of plaintiff's pension contributions, which it valued at $1, 811. In addition, the judge ordered plaintiff to pay $87 a week in child support.

The judge declined to require either party to continue incurring the private costs of having two of their children educated at a private school. The judge also declined to assign responsibility for various debts allegedly owed to defendant's family members and friends, citing a lack of persuasive evidence regarding the amount or responsibility for these debts. Lastly, the judge declined to award defendant counsel fees.

Defendant appeals and argues that the judge erred: (1) by imputing income of $25, 530 per year to her; (2) by awarding her limited duration alimony instead of permanent alimony; (3) by calculating child support based on the income imputed to defendant; (4) in her valuation of plaintiff's pension for purposes of equitable distribution; (5) by failing to require the parties to pay for the two younger children's attendance at a private school; (6) by failing to require plaintiff to contribute to marital debt owed to defendant's family members and friends; and (7) by refusing to award her attorney's fees. We were advised at argument that the parties have resolved their differences regarding child support and that issue is now moot.

II.

Defendant first argues that the court erred by imputing income to her of $25, 530 per year. We disagree. Here, defendant testified that she obtained a commercial driver's license (CDL) in 2004, and was employed as a bus driver, earning about $500 per week. Defendant was terminated in October 2010 for excessive lateness. She claimed that this was due to fatigue resulting from certain medical conditions. Defendant testified that she was not going to renew her CDL because she did not believe she could pass the physical.

Defendant also was employed by plaintiff's father as a part-time bookkeeper. She worked about twenty hours per week, earning $25 per hour. She was terminated in June 2011, after her father-in-law learned that defendant had a boyfriend who was living in the marital home.

Defendant argues that the court ignored the fact that she is the primary caretaker for the children. She says that she has an array of health problems, including bipolar disorder, sleep apnea, Epstein-Barr syndrome and back pain. She says that the record does not support the court's finding that she can obtain a position as a bookkeeper earning $250 per week, while working part-time as a bus driver. She contends that she was not a skilled bookkeeper and the position she held for her father-in-law cannot be duplicated in the workplace. We are convinced that these arguments are without merit.

The judge found that defendant could work while acting as the children's primary caretaker. The children are school-aged and this will not inhibit defendant from working. In addition, defendant was capable of working as a bus driver and also could work as a bookkeeper. Defendant's father-in-law testified that defendant worked for him in a clerical position that was comparable to that of a bookkeeper. Moreover, as defendant concedes, she did not present any expert medical testimony to support her claim that she could not work due to health problems.

We must defer to the judge's findings because they are supported by sufficient credible evidence in the record. Rolnick v. Rolnick, 290 N.J.Super. 35, 42 (App. Div. 1996) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). Furthermore, deference to fact-finding by judges of the Family Part is particularly ...


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