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Wicker v. Wicker

Dec 10, 2015
DOCKET NO. A-2408-13T4 (App. Div. Dec. 10, 2015)


DOCKET NO. A-2408-13T4


TARA WICKER, Plaintiff-Respondent, v. JAMES WICKER, Defendant-Appellant.

Scott J. Levine argued the cause for appellant. Jaclyn Kusmaul argued the cause for respondent (Patricia Ronayne, P.C., attorneys; Ms. Kusmaul, on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Rothstadt. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-0028-13. Scott J. Levine argued the cause for appellant. Jaclyn Kusmaul argued the cause for respondent (Patricia Ronayne, P.C., attorneys; Ms. Kusmaul, on the brief). The opinion of the court was delivered by ROTHSTADT, J.A.D.

Defendant James Wicker appeals from the support provisions in the parties' December 17, 2013 amended final judgment of divorce (FJOD). He challenges the trial court's determination of his income and monthly expenses for purposes of calculating child support and permanent alimony payable to plaintiff Tara Wicker. Particularly, defendant contends the trial court erred by failing to consider his rental expenses and costs incurred to effectuate parenting time, resulting from his commute between his townhome in Virginia and the former marital residence in New Jersey. He further asserts the trial judge improperly rejected his expert's opinion regarding imputation of income to plaintiff. Plaintiff disagrees, arguing the trial judge correctly calculated defendant's support obligations and considered the expert's report.

We have considered these arguments in light of our review of the record and applicable legal principles. We affirm.


We discern the following facts from the record on appeal. Prior to trial in September 2013, the parties entered into a partial property settlement agreement resolving various disputed issues, leaving unresolved support issues for the court's determination following a trial based upon written submissions. In anticipation of trial, the parties submitted trial certifications, supporting case information statements, and other exhibits. The court considered the parties' submissions and oral arguments, and issued a thirty-seven page written decision on November 14, 2013.

The facts found by the court salient to the parties' marriage and employment histories were generally not disputed. The parties married on December 28, 1996, and filed for divorce in 2012. Plaintiff was fifty years old and defendant was forty-eight years old at the time of trial. Three daughters were born of the marriage: one in 1997; the second in 1999; and the third in 2002. Two of the parties' children had significant health issues. As of September 2013, defendant lived in Virginia, and had alternate weekend parenting time with the three children from Friday to Sunday evening, which he exercised at the family home in New Jersey.

Plaintiff also has a son born of a prior marriage in 1992.

When the parties met, defendant was a member of the Air Force in Ohio. They moved to New Jersey in 1998, then relocated to Colorado in 2003. Upon defendant leaving the Air Force in 2007, they returned to New Jersey, where defendant obtained employment. Until 2010, defendant earned an annual income of less than $100,000. He began working for a company in the Washington, D.C. area in January 2010, where he was paid a substantially greater income. Defendant's gross earnings were $186,027 in 2010; $187,440 in 2011; and $195,883 in 2012. He testified his then current annual income, inclusive of bonuses, was approximately $190,000. He also collected a military pension of $3,407 every month.

Upon commencing his employment near Washington D.C., defendant obtained an apartment in Virginia, where he resided during the work week, returning home to New Jersey on weekends. Plaintiff had agreed to relocate the family following her son's high school graduation in 2011; however, the marriage subsequently deteriorated and plaintiff declined to relocate, preferring the children remain in their current school district. According to defendant, he only decided "to make the extreme sacrifice to work" in Virginia "based on [plaintiff's] refusal to work and the need to support [the] family."

Defendant incurred significant expenses associated with his interstate weekly commute. He initially rented a townhouse in Virginia with three other tenants, contributing $500 per month. However, in September 2012, he procured his own condominium at a cost of $2,150 per month. There, his rent increased to $2,175 per month as of September 2013.

Even following plaintiff filing for divorce, defendant incurred travel expenses relating to the exercise of parenting time in New Jersey. He stated his "commuting expenses" totaled $710 each month, but his self-prepared "[c]ommuting [e]xpenses" exhibit, breaking down his monthly costs, was silent as to the method by which he arrived at this sum.

The exhibit lists monthly expenditures of: $145.34 in tolls; $210.01 in fuel; and $224.37 in vehicle maintenance. In a subsequently submitted certification, he provided annual commuting expenses netting roughly $5,000 and grossing about $8,000, which is inconsistent with his claimed monthly expenses of $710 - or $8,520 per year.

Defendant's additional expenses were not entirely clear, but evidently encompassed a monthly pendente lite support obligation of $9,000, pursuant to the parties' agreement. This included $2,906 per month for the marital residence's mortgage payments. The parties' joint tax returns listed as an itemized deduction unreimbursed employee business expenses in the amount of $12,951 in 2010 and $16,312 in 2011, which defendant claimed entailed commuting expenses and additional shelter costs.

The parties' agreement was memorialized in a consent order entered on August 31, 2012.

At the time of trial, plaintiff was employed on a part-time basis. Upon graduating cum laude from college in 1986, she began working as an assistant buyer and retail planner at a department store in Ohio. She earned approximately $30,000 in 1996. After the birth of the parties' first daughter in 1997, plaintiff left the workforce to enable her to care for the child at their home. Plaintiff was only otherwise employed as a substitute teacher in 2009, earning $1,087, and 2010, earning $712.

Since 1997, plaintiff has been the children's primary caretaker. Two of the parties' children had significant issues requiring plaintiff to transport them to forty separate doctor's appointments from January 2013 through September 4, 2013. According to plaintiff, if she worked full-time, the cost of afterschool care for the two youngest daughters would be $4,370 per year, while summer camp would total an annual expense for all three children of $13,125.

Because plaintiff was unemployed before trial, defendant's vocational expert, Lynn M. Levine, Ed.D., LPC, conducted a vocational evaluation to assess her employability and career options. Given plaintiff's extended absence from the work force and her need for flexibility to take her daughters to doctors and other appointments, Levine opined plaintiff would be best suited in a clerical or administrative position. Plaintiff informed Levine she was offered a part-time position as an administrative assistant with a financial advisor in Cherry Hill, with an hourly wage of $10 for twenty-five hours each week, totaling $13,000 over one year. Levine described the offer as "fortuitous," and, while the compensation was not "consistent with the potential earnings of a college graduate," she concluded the part-time position "would provide [plaintiff] with the opportunity to study for further insurance/financial credentials, without involvement in a full-time college curriculum, and would also allow her to meet her daughters' medical and activity needs." She concluded, "[i]t is my professional opinion, to a reasonable degree of vocational certainty, that, within a one-year time period from re-entry, [plaintiff] should be eligible for employment at an average wage of $35,000" as a customer service representative, administrative assistant, or secretary, "or at proportionately pro-rated work schedule and salary, based on the availability of the documented needs of the children."

Levine explained, "despite the relatively low entry-level hourly wage," the offer "would be consistent with [plaintiff]'s parenting needs, while providing her with the skills update that would allow for alternative options, should 'upward mobility' not become available."

Plaintiff stated she accepted the part-time position beginning September 9, 2013, where she was actually paid $12.50 per hour, or $312.50 per week. In addition, she would receive approximately $885 per month in military pension benefits. Thus, she maintained her weekly income was approximately $516. Plaintiff sought $1,500 per week, or $78,000 per year, in alimony.

Plaintiff's CIS indicated a joint marital budget of $12,435 per month. Defendant's initial CIS listed the joint marital budget as $13,178, though a subsequently submitted CIS stated $11,738, offering no explanation for the reduction in expenses. Plaintiff's CIS listed her current budget for herself and the children as $10,504, and proposed she and the children would need a budget of $10,794 per month following the sale of the marital home. At oral argument, plaintiff explained many expenses in plaintiff's proposed budget had been reduced, such as expenses on food and mortgage payments. Nevertheless, she acknowledged "[s]ome of the expenses are higher in that . . . if she has to go back to work full time, she's going to need . . . after school care . . . and maybe some summer camp . . . ."

Defendant claimed, for the purposes of determining spousal and child support, his baseline income of $185,000 should be reduced to $175,000, and plaintiff's income should be $35,000. Alternatively, he asked the court to allow him to "be employed in New Jersey at the wages that New Jersey companies would provide [him], which is approximately $120,000."

At trial, plaintiff's counsel argued the judge should determine plaintiff's income was $23,571, comprised of $13,000 in employment earnings and $10,571 in pension benefits; and defendant's income was $222,970, comprised of $195,883 in employment earnings and $30,087 in pension benefits. Defendant asserted averaging his income over the past three years was inappropriate because his income had been relatively consistent.

Plaintiff, addressing expenses defendant may incur in visiting the children, first averred a shelter credit was improper as defendant's recent decision to move to a drastically more expensive townhome was not in the children's best interests. She argued the status quo entailed defendant renting shelter for approximately $500 and returning home on weekends. Regarding the expenses incurred in commuting to New Jersey, she asserted defendant's claimed expenses were either inflated or factually unsupported. Defendant responded alleging plaintiff "signed off" on these expenses upon listing unreimbursed employee business expenses in their joint tax returns, which defendant claims included commuting and additional shelter expenses.

Focusing on defendant's claimed expenses, the court noted inconsistencies in their amounts. For example, defendant's most recent CIS and the "[c]ommuting [e]xpenses" exhibit he prepared to corroborate the CIS were not wholly consistent. The CIS listed fuel and oil expenses of $400 per month ($4,800 per year); commuting expenses of $160 per month ($1,920 per year); and parenting expenses of $900 per month ($10,800 per year). The exhibit, however, lists fuel expenses of $2,539 per year; toll expenses of $1,757 per year; and maintenance expenses of $3,141 per year. Further, defendant's trial certification listed commuting expenses as $710 per month ($8,520 per year), and parenting expenses of $700 per month ($8,400 per year).

In attempting to reconcile these amounts, the judge expressed his frustration with defendant's proofs when he questioned whether the fuel expenses of $400 per month contained in defendant's CIS were limited to work-related commuting or encompassed his interstate commute:

[THE COURT]: I'm trying to meld that with what you claim in your budget because [the] budget was certified to by him. . . . So I just want to make sure when I look at the budget and compare it to the nice thing that he prepared that I am looking at apples and apples and not apples and oranges.

So . . . the commuting expenses listed on the budget do not include these expenses for driving back and forth between Washington and [New Jersey]; is that correct?

[DEFENSE COUNSEL]: It does, Your Honor. It does.

. . . .

[THE COURT]: So $400 a month which is roughly less than $100 a week is what the full extent of his commuting expenses including the trips back and forth . . . ; is that correct?
[DEFENSE COUNSEL]: No, Your Honor. It's --

[THE COURT]: So then what am I supposed to believe[?] Am I supposed to believe his budget or am I supposed to believe his separate sheet [wherein] he's looking for the credit[?] . . . I'm not trying to be difficult. I just want to understand what I'm looking at.

The judge and defense counsel agreed that only $211 of the $400 fuel expenses were associated with traveling to New Jersey weekly, and as defendant was now only visiting the children on alternating weekends rather than every weekend, the judge reduced the expense to $105 each month. Defendant proceeded to clarify $160 monthly commuting expenses denoted in the CIS was for tolls, thereafter agreeing with the judge that monthly toll payments resulting from his interstate commute totaled $146, which would be reduced to roughly approximately $73 per month.

When defendant was asked how he arrived at $900 per month in parenting time expenses, counsel stated, "basically the tolls, the fuel," to which the judge responded by noting "we [already] took care of the tolls and the fuel." Defendant posited "when you're driving a car every weekend or every other weekend . . . back and forth from Washington, D.C. to New Jersey, there's going to be . . . major wear and tear, there's major fuel costs." Nonetheless, the judge reasoned defendant's position was thwarted by logic and, most importantly, was unsupported by the proofs presented, which depicted maintenance and fuel costs totaling a lower amount than under the marital budget. The judge also observed, "from what I see[,] there is no current parenting time expense over and above the transportation cost because [defendant is] visiting with the children in the home."

The judge also rejected defendant's assertion that the unreimbursed employee business expenses deducted from the parties' income in their joint tax returns should likewise be deducted from defendant's income. He reasoned "[t]here's no support for that" and found it actually contradicted defendant's position. He explained deducting the unreimbursed expenses for purposes of this action would "make[] more money available to [defendant] for these expenses which although IRS accepts them as . . . legitimate business expenses, . . . th[e] IRS accepts a lot of things as legitimate business expenses that also can be added back in as far as the individual's income.

After considering the evidence and the parties' arguments, the court issued its written decision, which was later incorporated into the amended FJOD along with the provisions of the partial property settlement agreement. The judgment granted defendant "alternating weekend parenting time to be defined as Friday through Sunday evening." It further required defendant to make weekly payments of $1,300 in permanent alimony and $382 in child support. Also, the judgment ordered the marital residence be listed for sale by February 1, 2014. Pending the sale, the judge ordered defendant's continued payment of $9,000 per month to cover the expenses reported on plaintiff's CIS, from which plaintiff and defendant each received $250 per month for parenting time expenses. The judge noted this specific arrangement "shall be terminated upon the sale of the marital home, agreement of the parties, or further [c]ourt [o]rder." The two monthly parenting time expenses payments of $250 permitted defendant to "exercise at least one alternating weekend parenting time on an overnight basis each month without . . . plaintiff being present." The judge stated the allowance "shall not be interpreted as any finding or conclusion of the [c]ourt as to the entitlement of either party to a continuation of these 'parenting-time expenses' after the sale of the marital home."

The judge detailed the reasons for the court's decision as to support, reviewing each of the statutory factors and reciting from applicable case law. He began by reviewing plaintiff's lack of employment during the marriage and her recent securing of part-time employment. He considered the opinion of defendant's expert, and rejected the expert's opinion that plaintiff would be able to earn $35,000 from future full-time employment based upon plaintiff's employment history and the children's needs. The court calculated plaintiff's income to be $593 per week, or $30,858 per year. This calculation was based upon plaintiff's employment earnings of $16,250 per year, or $312.50 per week; a military pension of $10,608 per year, or $204 per week; and anticipated investment income of $4,000 per year.

The judge evaluated the parties' marital standard of living, which he deemed "upper middle class" based upon each CIS provided. He found the budgetary needs of plaintiff and the three children was $8,000 to $8,500 per month.

Turning to defendant's income, the judge recognized "regular and consistent increases in his earnings throughout the course of the marriage." He considered defendant's historic earnings over a three-year period since accepting employment in Washington, D.C., and found an average annual gross income from employment totaling $191,128. Adding defendant's investment income of $4,892 per year, pension income of $27,196 per year, and non-taxable VA disability benefit of $3,060 per year, the judge determined defendant's taxable income was $223,186, or $4,292 per week, and his total annual income was $226,246.

The judge rejected defendant's request for a credit against his available income for expenses incurred to effectuate parenting time, opining:

[Defendant's] request for some credit against his available income is not supported by any sufficient factual or legal basis. In particular, his budget reflects a decrease in his transportation expenses from the marital lifestyle . . . . His parenting time expense of $900 per month is likewise not supported by any sufficient proofs as to the full extent of those costs.

Nonetheless, the judge accounted for a portion of defendant's purported transportation and commuting expenses in determining defendant's budget, recognizing "common sense would indicate that some consideration must be given to the current situation that alternate weekend parenting time commuting from Washington, D.C. does result in a different level of cost than if it w[ere] being exercised in the local area." First, he noted defendant's budget of $9,757 was "characterized as being for him and four children," and was only $1,037 less than the $10,794 budget plaintiff provided for herself and the three children. The court then questioned the accuracy of certain line items in defendant's claimed budget, concluding his monthly expenses were less than those to which he certified:

Questions arise with respect to certain line items reflecting the following expenses: rent ($2,175); equipment and furnishings ($300); restaurant ($240);
clothing ($200); . . . parenting time expenses ($900). . . .

. . . .

For purposes of the present analysis, the [c]ourt determines that the overall budget of [d]efendant would be the amount of $7,000-$7,500 per month, the range estimate being predicated on whether certain expenses within the budget may be non-recurring on a regular basis. The [c]ourt does consider those to include his transportation and commuting expenses for parenting time which should be considered at this point.
Further, the court's child support guidelines worksheet also deducted $40 from defendant's net child support obligation based on an "[a]djustment for parenting time expenses."

The court accordingly decided defendant's "request for some credit against his available income" based on expenses incurred to effectuate parenting time was unsupported; but, the judge did include transportation and commuting expenses associated with parenting time in calculating defendant's budget. The judge credited both parties with a temporary monthly $250 parenting expense in satisfaction of defendant's commutation costs and plaintiff's obligation to leave the marital home when defendant effectuated his parenting time, effective until the marital home's sale.

That range represented an approximately $1,500 monthly reduction from the amount claimed by defendant as his monthly expense.


As noted, defendant argues on appeal the trial court did not adequately consider his parenting time expenses and incorrectly rejected his expert's opinion. We disagree.


We accord decisions of the Family Part deference based on its expertise in matrimonial matters. See Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We will not disturb its decisions if they are supported by substantial credible evidence and are consistent with applicable law. Ibid. While we owe no special deference to a judge's legal conclusions, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995),

we "should not disturb the factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice" or when we determine the court has palpably abused its discretion.

[Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (quoting Cesare, supra, 154 N.J. at 412).]
We will only reverse the judge's decision when it is necessary to "ensure that there is not a denial of justice" when the family court's "conclusions are [] 'clearly mistaken' or 'wide of the mark.'" N. J. Div. of Youth & Family Services v. E.P., 196 N.J. 88, 104 (2008); see also Gnall v. Gnall, 222 N.J. 414, 428 (2015).

Applying these standards, we will not vacate a family court's findings concerning support "unless the court clearly abused its discretion, failed to consider all of the controlling legal principles, made mistaken findings, or reached a conclusion that could not reasonably have been reached on sufficient credible evidence present in the record after considering the proofs as a whole." J.E.V. v. K.V., 426 N.J. Super. 475, 485 (App. Div. 2012).


We initially address defendant's contention that the trial court's calculation of his support obligation failed to properly account for commuting expenses, including those required to maintain his Virginia residence. He asserts the amended FJOD unfairly compels his continued employment "in Washington without considering the costs involved in continuing to maintain a dual residence," urging the court permit him either "to move to New Jersey or[,] alternatively[,] . . . to deduct the housing expenses and travel expenses necessary to effectuate parenting time." We find these contentions to be without merit.

"Alimony relates to support and standard of living; it involves the quality of economic life to which one spouse is entitled, which then becomes the obligation of the other." Gnall, supra, 222 N.J. at 429. A family court's determination of "[w]hether alimony should be awarded is governed by distinct, objective standards defined by the Legislature in N.J.S.A. 2A:34-23(b)." Ibid. Ultimately, "the overriding purpose of [N.J.S.A. 2A:34-23(b)] is to give a matrimonial judge broad discretion and authority to fashion sagacious remedies on a case by case basis, which will achieve justice and fulfill the needs of the litigants." Randazzo v. Randazzo, 184 N.J. 101, 111 (2005) (internal quotation marks omitted). To that end, a proper alimony award "'assist[s] the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage.'" Tannen v. Tannen, 416 N.J. Super. 248, 260 (App. Div. 2010) (quoting Steneken v. Steneken, 183 N.J. 290, 299 (2005)), aff'd o.b., 208 N.J. 409 (2011). "[A] judge awarding alimony must methodically consider all evidence to assure the award is "fit, reasonable and just" to both parties, N.J.S.A. 2A:34-23, and properly balances each party's needs, the finite marital resources, and the parties' desires to commence their separate futures, N.J.S.A. 2A:34-23(c)." Gnall v. Gnall, 432 N.J. Super. 129, 149 (App. Div. 2013) (citation omitted), rev'd on other grounds, 222 N.J. 414 (2015).

In awarding alimony, "the court shall consider, but not be limited to, the following factors:"

(1) The actual need and ability of the parties to pay;

(2) The duration of the marriage or civil union;

(3) The age, physical and emotional health of the parties;

(4) The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living, with neither party having a greater entitlement to that standard of living than the other;

(5) The earning capacities, educational levels, vocational skills, and employability of the parties;

(6) The length of absence from the job market of the party seeking maintenance;

(7) The parental responsibilities for the children;

(8) The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;

(9) The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;

(10) The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;

(11) The income available to either party through investment of any assets held by that party;

(12) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment;

(13) The nature, amount, and length of pendente lite support paid, if any; and

(14) Any other factors which the court may deem relevant.

[N.J.S.A. 2A:34-23(b).]

Following our review, we conclude the trial judge appropriately considered the requisite factors in determining an alimony award, see N.J.S.A. 2A:34-23(b), including expenses defendant proved rather than merely theorized. The judge made "'specific findings on the evidence' regarding the statutory factors relevant to th[is] particular alimony award," Gnall, supra, 222 N.J. at 430 (quoting N.J.S.A. 2A:34-23(c)), and those findings are supported by the record. The trial court's decision evinces the judge's proper consideration of the statutorily mandated factors in light of the "sufficient credible evidence present in the record . . . [and] proofs as a whole." J.E.V., supra, 426 N.J. Super. at 485.

The judge did not evaluate "[t]he nature, amount, and length of pendente lite support paid," N.J.S.A. 2A:34-23(b)(13), as consideration of this factor was not required prior to the statute's September 2014 amendment. N.J.S.A. 2A:34-23; Still, the judge made certain modifications to the support order that were to remain in effect until the marital home's sale.

Contrary to defendant's assertions, the court gave due consideration to the expenses defendant proved relating to his parenting time expenses and shelter costs. See Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (acknowledging a party's failure to provide an accurate CIS "present[s] an [in]adequate factual basis for the court to assess essential facts necessary to a determination of the issues presented"); see also Elrom v. Elrom, 439 N.J. Super. 424, 436 (App. Div. 2015)(recognizing a party who does not produce "adequate financial information place[s] the hearing judge in a position where he [or she] ha[s] to . . . realistically impute income") (alterations in original) (internal quotation marks omitted)). The record demonstrates the court, in calculating defendant's budget, contemplated defendant's rental costs and expenses incurred in effectuating parenting time. Specifically, the judge addressed defendant's "transportation and commuting expenses for parenting time," which incorporated the monthly fuel expenses of $105 and tolls equaling $73 per month.

While the judge questioned defendant's rental costs, he did not prevent defendant from remaining in his two to three bedroom Virginia townhome. As defendant maintains, his Virginia residence is located in an expensive suburban area, suggesting his living arrangements approach the marital standard of living, which the judge identified as "upper middle class."

We also consider the judge's rejection of defendant's purported $900 in additional parenting expenses was appropriate, in light of defendant's inability to justify those costs and his confusing and inconsistent supporting proofs. Given the judge's suspicion concerning other costs defendant claimed, the court's decision to deduct between $1,000 and $1,500 from defendant's proposed budget, setting a $7,000 to $7,500 budget, was reasonable and supported by evidence in the record.

Further, defendant's allegation that the court erred by rejecting as determinative of his expenses the unreimbursed employee business expenses claimed in the parties' tax returns is unpersuasive. The judge did not dispute the expenses' existence, but rather, based upon defendant's proofs, he was unable to distinguish the costs incurred from commuting to New Jersey from those directly related to employment.

The balance of defendant's arguments are without merit. The judge properly exercised his discretion in deciding defendant's income for purposes of the alimony award by utilizing a three-year average of defendant's earnings. See Elrom, supra, 439 N.J. Super. at 435-36. He did not compel defendant to remain in the Washington area. Defendant never indicated that he had any job offers from New Jersey at the time of trial. When if that occurs, defendant is permitted to file an application to modify the order as a result of changed circumstances, if warranted. See N.J.S.A. 2A:34-23a; Lepis v. Lepis, 83 N.J. 139, 146 (1980). Equally lacking merit is defendant's assertion that the court's order causes his inability "to even approach the marital standing of living." He provides no support for this claim. Our careful review of the judge's discretionary calculations supports our conclusion that the amended FJOD places the parties in a financial situation — after taxes, alimony payments, and the martial residence's sale — where defendant retains in excess of $7,000 per month. Thus, defendant is financially capable of subsisting on his budget of $7,000 to $7,500. Furthermore, plaintiff is left with a similar amount of approximately just under $8,000 per month, representing only an additional $1,000 to support herself and the three children.

We conclude the judge's determination of defendant's income and monthly expenses was amply supported by established evidence and is entitled to our deference. See Cesare, supra, 154 N.J. at 411; Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012).


Finally, we turn to defendant's argument that the trial judge should have accepted Levine's estimation plaintiff's projected earnings would be of $35,000 after one year of part-time employment. We disagree.

"Imputation of income is a discretionary matter not capable of precise or exact determination[,] but rather requir[es] a trial judge to realistically appraise capacity to earn and job availability." Elrom, supra, 439 N.J. Super. at 434 (internal quotation marks omitted). In deciding whether income should be imputed, "a trial judge may accept or reject an expert's opinion in its entirety, or may accept only some of the expert's opinion." Reese v. Weis, 4 30 N.J. Super. 552, 581 (App. Div. 2013) (citing Brown v. Brown, 348 N.J. Super. 466, 478, (App. Div.), certif. denied, 174 N.J. 193 (2002)).

We conclude the trial judge correctly exercised his discretion in resolving the issue of plaintiff's income. The judge found part-time work was appropriate given "her vocational dormancy during the marriage, . . . lack of appropriate skills . . . , and ongoing parental responsibilities." The judge found plaintiff's responsibilities to the children were especially substantial, given the children's continued "significant medical issues that are handled exclusively by the [p]laintiff . . . . [such as] taking the children to [forty] separate doctors' appointments during the time period of January, 2013 through September 4, 2013."

The judge's ultimate determination was, at least partially, consistent with the opinion of defendant's expert that plaintiff would earn less than $35,000 if she remained employed part-time "at proportionately pro-rated work schedule and salary, based on the availability of the documented needs of the children."

The court did not abuse its discretion by rejecting Levine's opinion as to plaintiff becoming full-time within year. The judge explained an income of $35,000 "represents an increase of approximately 30% within that time frame." He concluded "certain factors may preclude [plaintiff's] earnings from increasing at that pace given her age, possible additional training that may be required, and some ongoing parental obligations for the children."

We conclude that the court's findings on the issue of plaintiff's employment were based upon adequate evidential support. See Cesare, supra, 154 N.J. at 411-12.

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.


Summaries of

Wicker v. Wicker

Dec 10, 2015
DOCKET NO. A-2408-13T4 (App. Div. Dec. 10, 2015)
Case details for

Wicker v. Wicker

Case Details

Full title:TARA WICKER, Plaintiff-Respondent, v. JAMES WICKER, Defendant-Appellant.


Date published: Dec 10, 2015


DOCKET NO. A-2408-13T4 (App. Div. Dec. 10, 2015)