Argued Telephonically November 7, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket Nos. FM-01-112-09 and FV-01-755-99.
Andrew L. Rochester argued the cause for appellant (Morgenstern & Rochester, attorneys; Mr. Rochester, on the briefs).
Julie Davis Lisa argued the cause for respondent Susan Marie Harte.
T.B., respondent, argued the cause pro se.
Before Judges Espinosa, Koblitz and O'Connor.
This appeal raises the issue of how to properly calculate child support for multiple families. Defendant David Richard Hand appeals from two separate child support orders entered on November 7, 2011, and orders denying reconsideration entered on May 25, 2012. He also appeals from a June 25, 2012 order granting plaintiff Susan Marie Harte $600 in counsel fees. The orders regarding support were entered on the same date by the same motion judge and the issues stemming from those orders in the two appeals are identical. We resolve both appeals in this decision, reversing and remanding only for a recalculation of support that takes into account defendant's financial obligations towards all three of his children. We affirm the counsel fee award to Harte. We also affirm the determination that defendant's vocational report represented a net opinion and therefore did not demonstrate a prima facie case of changed circumstances requiring further discovery.
Defendant has three children, each of whom has a different mother. Defendant's oldest son lives with defendant and his current wife. This child's mother lives in Florida and does not contribute to his support. Defendant's younger son lives with his mother, plaintiff T.B. His youngest child, a girl, lives with defendant's former wife, Harte. Defendant was employed as a concrete layer and finisher before he was seriously injured in a 2003 garage collapse at the Tropicana Casino Hotel in Atlantic City. As a result of this injury, he received a settlement of $1.2 million in 2007. He claims to have netted $533, 822 after paying several "obligations." At the time of his personal injury settlement, defendant was married to Harte and paying child support to T.B.
After the settlement, defendant agreed to an imputation of $57, 200 in annual income when recalculating child support for T.B. Harte and defendant were divorced in 2008 and defendant again consented to an imputation of $57, 200 in annual income as part of their January 2009 final judgment of divorce. In 2011, after a history of enforcement motions by both plaintiffs, defendant unsuccessfully moved to reduce child support for both children, claiming he was unable to obtain through wages and investments the agreed-upon imputed income. The motion judge denied his application, but suggested that if he presented a vocational expert who could demonstrate his lack of ability to earn the imputed income, the judge would consider his application again.
Defendant, representing himself for his re-application, moved again to reduce his support, this time supplying the judge with a vocational expert's report that had been prepared prior to his previous motion, but not provided by his counsel to the judge. Defendant stated on the record at oral argument that his wife supported him.
Robert P. Wolf, Ed.D., M.B.A., completed a vocational report for defendant purporting to determine defendant's employability and earning potential. The three-page report summarized defendant's work history since the 2003 accident, noting that between 2005 and 2010 defendant worked in the construction industry for two years, but "could not continue due to injury-related impairments." During this five-year period, he was otherwise jobless. Defendant most recently worked as a clerk in the parts and sales department of a local Nissan dealership, but was terminated in December 2011. The report stated that defendant completed a tractor-trailer driver training class thereby obtaining a "Class A" commercial driver's license and was seeking employment as a local short-haul truck driver, which would pay an average annual salary of $36, 514. Wolf stated that defendant refused to seek work as a more lucrative long-distance "over the road" driver because of the potentially negative impact on his "child rearing responsibilities." Wolf concluded that $36, 514 was therefore defendant's "probable income" within a "reasonable degree of vocational-economic certainty." Wolf based this projected imputed income on defendant's work history, a summary of his medical and mental condition, some medical reports and salary estimates from the 2010-2011 edition of the Occupational Outlook Handbook published by the United States Department of Labor Bureau of Labor Statistics. See http://www.bls.gov/ooh/transportation-and-material-moving/heavy-and-tractor-trailer-truck-drivers.htm (last visited December 2, 2013). Wolf relied on defendant's expressed desire to be a truck driver, although defendant stated at oral argument that his driver's license was suspended.
We should not disturb the trial court's findings unless the record does not support the determination with substantial, credible evidence. Rova Farms Resort, Inc. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). Appellate courts accord particular deference to the Family Part because of its "special jurisdiction and ...