Court Imputes Income For Child Support After Father's Voluntary Career Change

In Provost v. Provost, the Defendant appealed from a 2014 Court Order that imputed his income and modified his child support obligation. The Appellate Division remanded the case back to the Family Court to further develop evidence on the record with regard to the Defendant's career changes. The parties in this case were divorced in 2001. Three (3) children were born to them during their marriage. The Plaintiff has residential custody of the children based upon the parties' divorce judgment which incorporated a marital settlement agreement (MSA). The agreement directed that the Defendant would pay child support for his children until they were emancipated which was defined in the agreement as: "the completion of the child's formal education on a matriculated basis, whether it be graduation from a four year undergraduate school or high school . . . as long as the child is diligently pursuing formal education . . . and obtaining passing grades." The Defendant lost his job in 2009 as a mechanic and attempted to open up his own body shop which earned him much less income. In 2011, the Defendant petitioned the court to modify his support obligation. The Family Court determined, at that time, that the Defendant was earning much less income after he was fired from his job in 2009, but the judge found that he had failed to present evidence of "competent proof of a diminished earning capacity as a mechanic or a good faith attempt at finding another mechanic's position following his termination . . . . " Therefore, the judge imputed his income to be $68,016 which was the income that was reflected in his 2008 tax return as the best indicator of his earning capacity. On appeal, the Defendant argued that the judge made a mistake by imputing his income because he was involuntarily unemployed, he sought employment, and found an appropriate job and therefore he did not change careers as the judge had held. The Appellate Court found that in order to obtain a change in circumstance based upon current earnings a person who has selected a new, less lucrative career must establish that the benefits he or she derives from the career change substantially outweigh the disadvantages to the supported spouse. Without that showing, a judge should deny the Motion for a change in circumstance, in effect imputing prior earnings unless the obligor establishes, in the alternative, that his capacity to earn is diminished, in which case the judge should impute earnings consistent with the obligor's capacity to earn in light of the obligor's background and experience. Storey v. Storey, 373 N.J. Super. 464, 468-69 (App. Div. 2004). The court noted that it was inconsequential and not outcome-determinative whether the Defendant was previously a salaried employee and was then a proprietor for the purpose of determining whether a career change had occurred. What mattered was whether "he or she is working at capacity in employment consistent with [his or her] skills and experience." Storey, supra, 373 N.J. Super. at 472; Lynn v. Lynn, 165 N.J. Super. 328, 340-42 (App. Div. 1979). The court held that the record was devoid of the Defendant's prior work experience and therefore it was impossible to discern whether or not he was working at capacity based upon his skills and experience. Therefore, the Appellate Court remanded the case back to the Family Court to make such determinations. If you believe that a post-judgment modification to your child support obligation may be beneficial to you it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, child support, emancipation, child custody, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice if an attorney.