Alimony Reduction Through Imputation Of Income Is In Court's Discretion

In the recent New Jersey Appellate Division case, Palestrini v. Palestrini, the Plaintiff, Carl Palestrini appealed from a Court Order establishing his alimony obligation and asked that the court impute income to his ex-wife, Defendant, Joann Palestrini, whom he claimed remained purposely underemployed as a means to increase her alimony award. The parties in this case were divorced in July 2012 after approximately nineteen (19) years of marriage. They were divorced pursuant to a dual judgment of divorce which incorporated a property settlement agreement (PSA). In the PSA, it was specified that the Plaintiff was, at that time, on unemployment, but required him to pay $200 a week in permanent alimony which was to be subject to an annual review to accommodate for the possibility that he would obtain a new job and there would be a resulting increase in his salary. On August 20, 2012, the Plaintiff's attorney informed the Defendant that the Plaintiff had gotten a new job with an annual salary of $65,000 a year and attached a pay stub which indicated that the Plaintiff had actually started to work at this job two days before the dual judgment of divorce was executed. The Defendant then filed a Motion with the court to increase her alimony award to $324.87 a week based upon the Plaintiff's new increased salary and based upon her part-time and varying salary of $11.00 an hour. The Plaintiff submitted a Cross-Motion arguing that the Defendant was earning approximately $20,000 a year at the time of their divorce and was subsequently choosing to be underemployed necessitating the court to impute her income back to $20,000 a year. After a hearing, the Family Court judge awarded the Defendant $325.00 a week and rejected the Plaintiff's requested relief. The Plaintiff appealed from this decision asserting that the court mistakenly exercised its discretion by failing to impute full-time income to the Defendant. The Appellate Court affirmed the decision of the Family Court. In its holding, the Appellate Division noted that it was required to defer to the Family Court's fact-finding because of the court's "special expertise" in the area of family law. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). Further, it held that: "imputation 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 v. Storey, 373 N.J. Super. 464, 474 (App. Div. 2004). There was no evidence that the Defendant was voluntarily underemployed and a finding of voluntary underemployment "is requisite, before considering imputation of income." Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998). According to the Defendant's Case Information Statement, she had a history of working part-time and the Plaintiff failed to provide the court with information regarding the Defendant's education, training, or employability that would have provided a basis to prove purposeful underemployment. The court concluded that the Plaintiff's remaining arguments lacked sufficient merit to warrant a discussion in a written opinion pursuant to Rule 2:11-3(e)(1)(E). If you anticipate that you may want to petition the court for a modification of your alimony award or may want to seek to impute income to your ex-spouse for the purposes of re-calculating an alimony obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, child support, divorce or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.