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.

Man's End-Of-Life Situation Did Not Give Rise To Alimony Termination

Rizzolo v. Jones is a New Jersey Appellate Division case in which the Plaintiff appealed from a Family Court denial of his post-judgment Motion to modify or terminate his alimony obligation to the Defendant due to his severely ill health. The Appellate Court reversed the decision of the Family Court. Whether or not an alimony award can be modified is "based upon a claim of changed circumstances . . . . " Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). Such determinations will not be overturned "unless the court abused its discretion, failed to consider controlling legal principles or made findings inconsistent with or unsupported by competent evidence." Storey v. Storey, 373 N.J. Super. 464, 479 (App. Div. 2004). The parties in this case were married in 1982, were separated in 1989, and divorced in 2006. The Plaintiff was 58 years old and the Defendant was 38 years old when they got married. The judge who heard their divorce trial concluded that the Plaintiff, who was "in remarkably good health" at 84, had worked as an attorney for 50 years and was entitled to retire. Although the parties had not lived together for many years at the time of their divorce, the Plaintiff had continued to support the Defendant. The judge concluded that based upon this fact that the parties had a long term marriage and the Defendant was entitled to permanent alimony. The judge awarded the Defendant $300 a week in alimony. The Plaintiff was 89 years old and in ill health when he submitted a Motion to the court to terminate his alimony obligation. He was suffering from prostate cancer, renal failure, and a bone infection at the time. The Family Court found that the Plaintiff had established a prima facie case of changed circumstances and ordered discovery. Miller v. Miller, 160 N.J. 408, 420 (1999). Relying on Miller, Donnelly v. Donnelly, 405 N.J. Super 117, 130-31 (App. Div. 2009), and Aronson v. Aronson, 245 N.J. Super. 354, 361 (App. Div. 1991), all which stand for the proposition that a supporting spouse cannot choose to remain in a position of diminished earning capacity and ignore the obligations of support to one's family, the court found that the Plaintiff did not do enough to meet his alimony obligation because he was a veteran entitled to veteran's benefits and he could have entered himself into a VA facility to address his health needs instead of paying for a relative to care for him at home. The Plaintiff appealed. The Appellate Court agreed with the Plaintiff's argument that no evidence was presented by the Defendant that a bed was ready and available at the VA facility or that the quality of care at the facility compared in any way to the care he was already receiving. The court held that it was not aware of any published cases suggesting that the Plaintiff should have prepared to justify his choice to remain at home receiving end-of-life care instead of entering into a VA facility so that he could maintain his alimony obligation. Further, the analysis in the Miller, Donnelly, and Aronson cases do not deal with end-of-life care questions as was pivotal in this case. Therefore, the decision to modify alimony turns on what is equitable and fair upon consideration of all circumstances of both parties. Lepis v. Lepis, 83 N.J. 139, 158 (1980). Therefore, the court reversed the decision of the Family Court. This being the case, the court held that the Family Court, on remand, may conclude that it is equitable to require the Plaintiff to enter a VA facility against his will to ensure that he meets his alimony obligation until his death. Deegan v. Deegan, 254 N.J. Super. 350, 355 (App. Div. 1992). Being that the laws governing the issues involving alimony have recently been changed, it is very important that you seek out the advice of an attorney to protect your rights an entitlements. If you think that it may be beneficial for you to petition the court for a post-judgment modification of your 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, post-judgment modification , 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 of an attorney.

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.