Opinion
DOCKET NO. A-2119-12T4
05-29-2014
CARL PALESTRINI, Plaintiff-Appellant, v. JOANN PALESTRINI, Defendant-Respondent.
Cores & Nachlinger, L.L.C., attorneys for appellant (Amy Sara Cores, on the brief). JoAnn Palestrini, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ostrer and Carroll.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-942-12.
Cores & Nachlinger, L.L.C., attorneys for appellant (Amy Sara Cores, on the brief).
JoAnn Palestrini, respondent pro se. PER CURIAM
Plaintiff Carl Palestrini appeals from the trial court's post-judgment order increasing alimony to defendant Joann Palestrini. Plaintiff asserts that the trial court should have found defendant was voluntarily underemployed and imputed income to her. We disagree. Having reviewed plaintiff's arguments in light of the record and applicable principles of law, we affirm.
I.
The parties were divorced on July 31, 2012, after almost nineteen years of marriage. The dual final judgment of divorce (DFJD) incorporated a property settlement agreement (PSA), executed the same day. The PSA recited that plaintiff "is currently on unemployment." The PSA initially required plaintiff to pay $2 00 a week in permanent alimony. However, to account for plaintiff's potential re-employment and other changes, the alimony obligation was subject to annual review, and escalation according to a fixed formula based on the parties' incomes. Provided plaintiff earned more than $31,200, alimony would equal one third of the difference between plaintiff's income (up to $80,000) and defendant's income. The alimony provision stated:
Plaintiff was represented by counsel, but defendant was not.
The Husband shall pay permanent alimony to the Wife in the amount of $2 00.00 per week. The Husband is currently on unemployment. . . .
The parties shall exchange federal and state income tax returns each year no later than May 1. If the Husband earns more than $31,200.00 this shall trigger an automatic review of the husband's alimony obligation. The parties have agreed to the use of a specific formula for the calculation of the Husband's alimony obligation. The amount of alimony to be paid once the husband earns more than $31,200.00 shall be calculated as
follows: Husband's annual income minus annual Wife's income divided by three equals annual alimony obligation. The maximum income to be used to calculate the Husband's alimony will be $80,000.00.
The parties shall submit a consent order each time there is a modification of the alimony amount and cause probation to update its records accordingly.
In the event that Husband's unemployment benefits terminate and he remains unemployed this shall trigger a prima facie change in circumstances warranting a review of the Husband's alimony obligation.
Although the PSA does not specify whether income should be gross or net, plaintiff's counsel later asserted that the formula was based on gross income. The parties agreed that their respective case information statements reasonably described their marital lifestyle, and neither party could maintain the marital standard of living post-divorce.
On August 20, 2012, plaintiff's counsel notified defendant that plaintiff had become re-employed at an annual salary of $65,000. Counsel attached plaintiff's paystub indicating that plaintiff had actually begun work on July 28, 2012 — before entry of the DFJD and the PSA. Counsel asked defendant to provide information regarding her current income, to enable the calculation of alimony according to the formula. In the interim, plaintiff would agree to pay $288.46 a week.
Defendant responded that she had earned $300 for the two-week period ending August 11, and $336 for the period ending July 28, 2012. She stated she was earning $11 an hour as a part-time worker. Her hours varied. Defendant noted that she had worked only part-time since December 2011. She said her previous job paid $10 an hour for between twenty-five and thirty hours a week. Defendant stated that she hoped her current part-time position would become full-time "somewhere down the road." Plaintiff's counsel responded that defendant was voluntarily underemployed and asserted that a full-time income should be imputed.
Defendant then filed a motion to increase alimony to $324.87 a week, based on plaintiff's income of $65,000 and her annualized income of $14,300 or $275 a week, an extrapolation of her earnings for the previous seven months. The paychecks for that period showed that defendant worked between nine and forty-one-and-a-half hours a week. She worked thirty-five or more hours only five out of the twenty-seven weeks. Defendant's CIS, filed with her motion, stated that her year-to-date income for thirty-four weeks was $8300, or $244 a week.
Defendant's pre-judgment CIS, dated May 18, 2012, reported that her year-to-date income for twenty-one weeks was $6055, or $288 a week. Her May 2012 CIS and W-2 statements showed that in 2011, she worked various part-time jobs, earning a total of $5239, or slightly over $100 a week. By contrast, plaintiff's pre-judgment CIS, dated April 23, 2012, reflected 2011 income for plaintiff significantly above the $80,000 ceiling in the PSA, and attributed zero income to defendant.
Defendant asserted that she was unable to work full-time because she had recently assumed the responsibility of caring for her adult daughter (of a previous relationship).
As of 8/11/12 I have been attending to my daughter's medical needs due to a spinal injury which has left her disabled and paralyzed in both legs & left arm. She is currently at JFK Rehabilitation Institute with no release date or definite outcome. Medical information will be provided if needed but this is my dire current situation at the present time[.]
Plaintiff cross-moved and asserted, without any documentary support, that at the time of the divorce, defendant was working and earning roughly $20,000 a year. He argued that defendant was voluntarily underemployed and that the court should impute income of $20,000 a year.
After a non-testimonial hearing, Judge Leslie-Ann M. Justus awarded defendant alimony of $325 a week. The court defined the issue before the court as "how much money income should be imputed to the defendant wife." The court rejected plaintiff's argument that defendant should be imputed earnings based on full-time work. The judge noted that plaintiff had not attributed any income to defendant in his pre-judgment CIS, and defendant's submissions reflected minimal earnings in 2011.
Defendant pro se did not timely appear for the hearing. The court heard argument only from plaintiff's counsel.
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The court found that defendant worked a total of 762 hours in twenty-nine weeks, an average of about twenty-six hours per week. Using a $10 an hour wage rate, that would yield earnings of about $260 a week. However, the court decided to accept defendant's higher calculation of $275 a week.
The defendant states that she should be imputed $27 5 per week, which would be 27.5, so it is actually higher than the calculations that I derived based on the pay stubs, and so I find that the defendant's request to be imputed $2 75 per week . . . is the amount I am going to use. And then it becomes a simple mathematical calculation.
So [defendant's] request for $324 I think she wanted and change, but if you round it up, it is $325, is granted. And I did the calculations and you do the $275 per week times 52, is $14,300. If you subtract that from the plaintiff's income of $65,000, that results in an amount of $50,700 divided by 3, is $16,900, divided by 52 equals [$]325 [a week] rounded off.
On appeal, plaintiff argues the court mistakenly exercised its discretion by failing to impute full-time income to defendant. Plaintiff also argues that the trial court failed to make adequate findings of fact and conclusions of law, with respect to its decision not to impute full-time earnings to defendant. We are unpersuaded.
II.
An appellate court is required to defer to the Family Court's fact-finding because of the court's "special expertise" in family matters and the court's "superior ability to gauge the credibility of the witnesses who testify before it." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). See also Cesare v. Cesare, 154 N.J. 394, 413 (1998). A trial court is also invested with broad discretion in deciding applications to modify alimony. See Storey v. Storey, 373 N.J. Super. 464, 470 (App. Div. 2004) ("The Legislature has left applications to modify alimony to the broad discretion of trial judges."); Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993) (stating that to vacate a decision modifying alimony, "an appellate court must conclude that the trial court clearly abused its discretion," ignored controlling law, or acted without sufficient evidential basis).
We also review a decision regarding imputation for an abuse of discretion. See Tash v. Tash, 353 N.J. Super. 94, 99 (App. Div. 2002). In particular, "[i]mputation of income is a discretionary matter not capable of precise or exact determination but rather requiring a trial judge to realistically appraise capacity to earn and job availability." Storey, supra, 373 N.J. Super. at 474. On appeal, a trial judge's decision to impute income "will not be overturned unless the underlying findings are inconsistent with or unsupported by competent evidence." Id. at 474-75.
Applying that deferential standard of review, we discern no error in the court's decision. First, there is no evidence that defendant was voluntarily underemployed. See Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998) (stating that a finding of voluntary underemployment or unemployment "is requisite, before considering imputation of income"). According to the parties' pre-judgment CISs, as well as defendant's W-2s, defendant had a history of working part-time. See Robertson v. Robertson, 381 N.J. Super. 199, 206-07 (App. Div. 2005) (declining to impute income to dependent spouse in view of minimal prior work history). Plaintiff has provided no information regarding defendant's education, training, or employability that would provide a basis for concluding that plaintiff purposely rejected available full-time work. See Storey, supra, 373 N.J. Super. at 474 (stating that a trial judge should "realistically appraise" the "capacity to earn and job availability" of the spouse whose income is to be imputed).
Moreover, while defendant expressed the hope in August 2012 that her part-time job might become full-time, she later certified, without dispute, that she had taken on the role of caregiver to her recently disabled daughter. Those obligations prevented her from expanding her hours. Essential to a decision regarding imputation of income is a finding that the party lacks good cause for his or her level of employment. See Caplan v. Caplan, 182 N.J. 250, 268 (2005). Our Court has recognized that a parent's obligations to care for a child, in particular a child with special needs, must be considered in the imputation calculus. Id. at 270. There may come a point in the future when defendant would be able to work full-time. However, she provided just cause for not seeking to expand her hours of work in the wake of her daughter's recent disability.
Plaintiff's remaining arguments lack sufficient merit to warrant discussion in a written opinion. Rule 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION