Opinion
DOCKET NO. A-2793-10T3
04-27-2012
MARTIN E. MABE, Plaintiff-Appellant, v. NATHALIE J. MABE, Defendant-Respondent.
Stuart J. Moskovitz, attorney for appellant. Nathalie J. Mabe, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Waugh.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1591-04.
Stuart J. Moskovitz, attorney for appellant.
Nathalie J. Mabe, respondent pro se. PER CURIAM
Plaintiff Martin E. Mabe appeals from a Family Part post-judgment order denying his motions for modification of his alimony obligation to defendant Nathalie J. Mabe. He also appeals from the order denying reconsideration of the prior decision.
The parties were divorced on June 22, 2005, following their twenty-two year marriage. The parties settled the issues collateral to the dissolution of their marriage regarding their financial obligations to one another, the care of their three children, and the distribution of assets. The terms of settlement were incorporated into the June 25, 2005 dual final judgment of divorce. The support provisions were calculated by imputing a $90,000 income to plaintiff and using defendant's gross annual income of $36,000.
Following the divorce, several motions were filed by the parties respectively seeking modification and enforcement of the previously ordered support obligations. The court scheduled a plenary hearing to consider plaintiff's alleged change of financial circumstances and whether the parties' oldest child was emancipated. Following the two-day plenary hearing, the trial judge imputed $74,000 per year to plaintiff as a liquor salesman, and imputed $35,000 to defendant as a secretary using the Department of Labor and Workforce Development's Wage Compendium (Compendium). On April 7, 2010, the trial judge ordered plaintiff to pay alimony of $1083 per month and child support of $239 per week. Also, $7,565.81 was added to plaintiff's child support arrearage as his share of outstanding medical expenses for the children.
In August 2010, plaintiff, representing himself, moved to stay enforcement of the current support order and sought an additional reduction in the ordered alimony and child support payments, alleging the level of income imputed was unrealistically high and defendant had misrepresented the status of her employment as she was collecting unemployment and "working under the table." Plaintiff asserted it was "physically impossible" for him to comply with the ordered payment obligations and asserted reported wage statistics regarding the median income for his profession was $37,000, requiring review of the court's imputed $74,000 per year. Plaintiff explained his business was shuttered, his home was subject to foreclosure, and he had lost all of his credit card accounts. He continued to look for title and mortgage related employment, but his lack of a college degree impeded any prospects. He stated he was denied unemployment benefits. Consequently, he was retraining, while working any job that came his way.
Plaintiff also asserted defendant was collecting $600 per week unemployment income while working for $500 per week at Hercules Moving and Storage Company (Hercules), working off the books. He attached photographs of defendant's vehicle parked at the business location, eight hours per day. Plaintiff challenged defendant's testimony at the plenary hearing stating she was not working, but had spent a few hours bartering her services at Hercules in exchange for storage services, as she anticipated being evicted following an upcoming Sheriff's sale. He maintained defendant's car was parked at the Hercules' location well into August.
Defendant filed a cross-motion seeking to compel plaintiff's compliance with the order, listing over $50,000 in various support items plaintiff had not paid. She disputed his claims of financial distress, asserting his $1,201,762 in assets included two homes, commercial realty, and three BMWs. She did not mention her employment.
A September 17, 2010 order required the parties to submit additional information and stayed enforcement of the support order pending the court's further review. We were not provided with a transcript of that proceeding and, therefore, do not know what additional information was ordered.
Plaintiff retained counsel and provided a supplemental certification and attachments. He stated defendant had affirmatively misled the court and committed fraud by collecting unemployment while she was otherwise employed. He attached the certification of Rasheed Simmons who worked for United Parcel Service Corporation (UPS). Simmons went to Hercules, a UPS customer, to discuss servicing by UPS. He spoke to defendant, who was on the telephone with a customer. Simmons taped a later conversation with defendant requesting the contact information for the bookkeeper. He asserted she answered the phone, gave him her business email address, and acknowledged her position in sales. Plaintiff noted these facts were in sharp contrast to defendant's testimony at the plenary hearing. He believed she was the sales manager at Hercules and was never unemployed but merely changed jobs. Plaintiff requested discovery, noting defendant did not file a Case Information Statement (CIS) and claiming she hid her money in a bank account titled with her sister, her home was never subject to foreclosure, and she had two "fairly new vehicles."
Plaintiff also challenged defendant's claim of over $7000 for uninsured medical expenses, noting there was never a gap in coverage. He suggested the claims were either not submitted for reimbursement, incurred after the parties' child was deemed emancipated, fraudulent, or purposefully out of network, making them defendant's responsibility. Finally, he identified discrepancies with his probation account, which he maintained erroneously increased his arrearages.
Defendant, now self-represented, provided her pay stubs beginning July 29, 2010, showing she was paid $8 per hour and received commissions. She also attached her unemployment compensation statement paid for the same period. Finally, she provided various documents from Probation Services regarding the computation of the arrearages due.
On November 5, 2010, the Family Part judge, without oral argument, denied plaintiff's motion to decrease alimony but granted his request to modify child support. In the statement of reasons attached to the order, the judge determined the $74,000 annual imputed income was based on plaintiff's experience in liquor sales, which he had not refuted. As to the argument defendant defrauded the court by misrepresenting her employment, the judge determined her $30,160 in unemployment and $11,103 in wages was not "a substantial change in circumstances" from the imputed $35,000 used in the April 7, 2010 order. Child support was reduced, because plaintiff "lives with and provides for a family of four[,]" thus, reducing the obligation to $187 per week. Further, Probation Services was to provide an audit of plaintiff's account.
Plaintiff moved for reconsideration, arguing defendant should have been required to submit a CIS and he should be permitted to undertake discovery regarding her fraudulent assertions. He also asserted the $74,000 based on employment as a liquor salesman was inappropriate because he lost his license when arrested for nonpayment of support. Defendant opposed reconsideration, asserting the court's exercised discretion was reasonable. The judge denied plaintiff's motion and he appealed.
Generally, our review of a trial judge's factfinding is limited; such findings will be binding on appeal "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998). Family Part factfinding receives particular deference because of "the family courts' special jurisdiction and expertise in family matters[.]" Id. at 413. Consequently, a trial court's findings will be disturbed only upon a showing that the conclusions are "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence'" requiring us to intervene to ensure there is not a denial of justice. Platt v. Platt, 384 N.J. Super. 418, 425 (App. Div. 2006) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
When reviewing decisions denying applications to modify alimony and child support, as well as motions for reconsideration of such orders, we examine whether, given the facts, the trial judge abused his or her discretion. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006); Loro v. Colliano, 354 N.J. Super. 212, 220 (App. Div.), certif. denied, 174 N.J. 544 (2002). "Of course, the exercise of this discretion is not limitless[,]" and remains guided by the law and principles of equity. Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd in part and modified in part, 183 N.J. 290 (2005). An abuse of discretion "arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). Finally, if we are requested to review issues centering on "[a] trial court's interpretation of the law and the legal consequences that flow from established facts" we are not required to afford such decisions any special deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
On appeal, plaintiff argues: 1) he submitted sufficient evidence to show significant financial changes had occurred since the plenary hearing held earlier in the year; 2) the motion judge ignored the evidence he presented demonstrating that the court relied upon defendant's false representations to calculate alimony and child support; and 3) the court erred as it determined the level of imputed income on incorrect facts. He also maintains the denial of his request for discovery was arbitrary and argues the evidence of defendant's misleading assertions entitles him to relief. We examine these claims.
Plaintiff maintained defendant received $52,000, not $35,000, in income because she was working and collecting unemployment. The motion judge understood this assertion but found her real earnings did not significantly exceed the imputed $35,000. This may be true if the examination is limited to defendant's discrete disclosures regarding her income. However, whether the premise holds true when the entirety of defendant's relationship with Hercules is examined should have been reviewed. In February and March 2010, defendant testified she had been unemployed for a year. Plaintiff showed defendant spent eight hours per day at Hercules in February 2010, which apparently, continued until August 2010 when he filed the most recent motion. The first week in August is the commencement of defendant's disclosed pay stubs with Hercules. The coincidence raises suspicion, particularly in light of defendant's delay in admitting her employment until after Simmons's certification was filed. Plaintiff's proofs show defendant was not entirely forthcoming in her hearing testimony. This evidence was sufficient to warrant an opportunity for plaintiff to challenge defendant's credibility at a plenary hearing on an issue critical to whether she remained entitled to receive alimony as defendant's change in financial circumstances may serve as a basis to reexamine her need for support. See Glass v. Glass, 366 N.J. Super. 357, 371 (App. Div.) (holding "a significant change for the better in the circumstances of the dependent spouse . . . may obviate the need for continued support[,]" warranting discovery and as necessary a hearing on obligee's finances) (internal quotation marks and citation omitted), certif. denied, 180 N.J. 354, 371 (2004). Stamberg v. Stamberg, 302 N.J. Super. 35, 42 (App. Div. 1997) ("A change in circumstances warranting modification of support may thus result from an alteration in the fortunes of either party." (citing Aronson v. Aronson, 245 N.J. Super. 354, 364 (App. Div. 1991))).
We conclude plaintiff, as the moving party, has shown "'a prima facie showing of changed circumstances[,]'" entitling him to discovery of defendant's financial status. Crews v. Crews, 164 N.J. 11, 28 (2000) (quoting Miller v. Miller, 160 N.J. 408, 420 (1999)). Under the circumstances presented, the broad denial of plaintiff's request for discovery to investigate the extent of defendant's reported or, possibly, unreported earnings was a misapplication of the court's discretion.
We also conclude the trial court's consideration of plaintiff's allegation of his own changed circumstances and ability to pay based on the level of income imputed was incomplete. The use of the Compendium as reliable evidence to impute income to a party is acceptable; however, in this matter we are unable to discern the basis for the $74,000 annual income imputed to plaintiff.
The Compendium reports the median annual salary for a wholesale trade sales representative of non-technical or scientific products as $58,480. See N.J. Dep't of Labor and Workforce Dev., Statewide New Jersey Occupational Wages from the Occupational Employment Statistics (OES) Wage Survey by Major Industry Sector, http://lwd.dol.state.nj.us/labor/lpa/employ/ oeswage/oeswage_index.html (last visited April 4, 2012). Similarly, the United States Department of Labor, Bureau of Labor Statistics lists the annual mean wage for "Beer, Wine, and Distilled Alcoholic Beverage Merchant Wholesalers," under the general occupation of "Sales Representatives, Wholesale and Manufacturing, Except Technical and Scientific Products" as $56,170. U.S. Dep't of Labor, Occupational Employment and Wages, May 2011, http://www.bls.gov/oes/current/oes414012.htm (last visited April 17, 2012). These two figures are significantly different from the $74,000 imputed. Moreover, reliance on imputation of income attributable to a liquor salesman was challenged by plaintiff's contention he lost his sales license following his arrests for nonpayment of support. The motion judge did not assess the conflicting information offered by plaintiff when denying his motion.
We do not comment on whether, as defendant suggests, plaintiff has assets that, if liquidated, could satisfy his outstanding support obligations. We agree plaintiff's assets may be used to satisfy his support obligations, see Walles v. Walles, 295 N.J. Super. 498, 515-16 (App. Div. 1996), however, here, the motion judge did not analyze this issue and we decline to do so in the first instance. On remand, defendant is free to pursue her assertions.
Regarding plaintiff's complaint of errors in the Probation Service's account of his support payments, we determine he provides no evidence to contradict the audited statement of account submitted to the motion judge. Assuming plaintiff has records of the support payments he made since the entry of the divorce, he can review whether these payments were properly credited and if not, produce the documents to Probation Services for investigation of necessary credits.
Finally, our remarks are not to be construed as suggesting plaintiff has met his burden of proving a substantial change in circumstances to warrant a modification in the level of alimony or child support. We conclude only that plaintiff has proven he should be afforded the opportunity to test defendant's newest assertions of earnings because her testimony is in conflict and because the factual basis challenging the level of imputed income to plaintiff was not fully considered. See R. 1:7-4 (requiring trial court to detail the factual underpinnings of its conclusions).
We reverse the November 5, 2010 and January 7, 2011 post-judgment orders and remand this matter to the trial court for consideration and entry of appropriate orders for further proceedings, including discovery and a plenary hearing. We do not retain jurisdiction.
Reversed and remanded.