J.G.K. VS. M.S. (13-0962-09, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1752-17T4
J.G.K.,
Plaintiff-Respondent/
Cross-Appellant,
v.
M.S.,
Defendant-Appellant/
Cross-Respondent.
_____________________________
Argued January 30, 2019 – Decided February 22, 2019
Before Judges Nugent and Reisner.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FM-13-0962-09.
Kristin S. Pallonetti argued the cause for
appellant/cross-respondent (Law Office of Steven P.
Monaghan, LLC, attorneys; Kristin S. Pallonetti, on the
brief).
Toby Grabelle argued the cause for respondent/cross-
appellant.
PER CURIAM
Plaintiff J. G. K. cross-appeals from paragraph two of a December 4, 2017
order entered by the Family Part, denying his motion to impute $85,000 in
income to defendant M.S. Defendant withdrew her appeal from other portions
of the order, leaving only plaintiff's cross-appeal to be decided. We affirm on
the cross-appeal, because plaintiff did not present legally competent evidence to
support a prima facie case of changed circumstances. See Lepis v. Lepis, 83
N.J. 139, 157-59 (1980).
The parties were married in 2003. It was defendant's second marriage.
The parties had one child, born in 2005, and they were divorced in 2009. In the
matrimonial settlement agreement (MSA), plaintiff agreed to pay defendant
child support, plus four years of limited duration alimony, after which the parties
agreed that child support would be subject to review. The parties agreed to
impute $15,000 in income to defendant, who had stayed home caring for her
children during each of her two marriages. They agreed that the amount of
imputed income would be "readdressed when child support is subject to review."
Consistent with the MSA, after plaintiff's alimony obligation expired in
2013, defendant moved for additional child support. Plaintiff cross-moved to
have the court impute additional income to defendant and decrease his child
support obligation. The court entered an order on August 22, 2013, imputing
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$45,000 in income to defendant, who had just begun working as a loan officer. 1
Neither party appealed from that order.
In 2017, plaintiff filed a motion seeking additional overnight parenting
with the child, who was then eleven years old, and he sought a corresponding
decrease in his child support obligation. Plaintiff also sought a decrease in his
child support obligation based on his request that the court impute $85,000 in
income to defendant. Plaintiff's certification in support of income imputation
was largely based on hearsay and his personal views as to what defendant should
be earning, although plaintiff freely admitted that she was likely not earning
anywhere near that amount. Plaintiff conceded that defendant had undergone
serious spinal surgery; however, he contended, based on his experience handling
medical malpractice cases, that defendant's recovery time should be shorter than
she claimed it was. In her responding certification, defendant emphasized the
serious nature of her medical condition, and her inability to work more than ten
hours a week at that time, based on her doctor's recommendation.
There appeared to be no material factual dispute that defendant was not
working full-time. Plaintiff's assertions as to the amount of imputed income
1
At the time of the 2013 motions, defendant was forty-six years old and had
not held a job since she was twenty. Hence, the mortgage loan officer position
was her first foray into the job market in more than two decades.
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were based on a document setting forth the annual mean income for a full-time
loan officer. The document did not state the typical starting salary for the
position, or the length of time needed to reach the mean annual income. Further,
as defendant noted, despite her physical inability to work full-time, the 2013
court order imputing $45,000 in income to her, and using that number as a factor
in determining child support, was still in effect.
The trial court denied plaintiff's motion to impute more income without
discussion, thereby leaving in place the income-imputation provision of the
2013 order. The court focused instead on plaintiff's application for additional
parenting time. The court granted that relief and significantly decreased
plaintiff's child support obligation solely on that basis.
Plaintiff now contends that the trial court's decision should be reversed,
because defendant did not file a case information statement or financial
documents verifying her current income. In considering this appeal, we first
observe that the trial court should have stated reasons for denying the portion of
the motion seeking to increase defendant's imputed income. See R. 1:7-4.
Nonetheless, we affirm paragraph two of the order on appeal, because it is
supported by the record. There was no evidence that defendant was earning
$85,000 a year in 2017, and in fact, plaintiff admitted that defendant was
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probably earning very little. Nor did plaintiff present a prima facie case to
support his contention that, at the time he filed his motion, $45,000 was no
longer a reasonable amount of income to impute to defendant. Absent a prima
facie case of changed circumstances, no financial discovery was required. See
Lepis, 83 N.J. at 139, 157-59.
Affirmed.
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