ARMEN KARAKHANIAN v. NATALIA SHCHUKO (FM-14-0059-15, MORRIS COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-1170-20
A-1832-20
ARMEN KARAKHANIAN,
Plaintiff-Appellant,
v.
NATALIA SHCHUKO,
Defendant-Respondent.
_________________________
Submitted April 25, 2022 – Decided August 12, 2022
Before Judges Sumners and Petrillo.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FM-14-0059-15.
Previte Nachlinger, PC, attorneys for appellant
(Thomas J. Bean, on the brief).
Natalia Shchuko, respondent pro se.
PER CURIAM
Plaintiff Armen Karakhanian appeals from the Family Part's November
12, 2020 amended final judgment of divorce (AFJOD) and the February 8, 2021
order denying his reconsideration motion seeking to vacate certain provisions of
the AFJOD. On appeal, he challenges the trial court's rulings regarding child
support, alimony, reimbursement alimony, and Mallamo1 credits. We affirm in
part and reverse and remand in part.
I
Having been married for about ten years with an almost four-year-old son
from the union, plaintiff filed for divorce alleging extreme cruelty. He further
alleged defendant planned to leave him, kidnap their son, and fabricate grounds
for a divorce to avoid enforcement of the parties' premarital agreement.
Defendant counterclaimed for irreconcilable differences.
During their marriage, plaintiff worked as a chiropractor while defendant
was a stay-at-home mother before becoming a certified public accountant
(CPA). At some point, plaintiff developed carpal tunnel syndrome and ceased
his chiropractic practice. Plaintiff has been the parent of primary residence since
the parties separated. In pre-trial rulings, plaintiff was ordered to pay $4000 per
month in unallocated pendente lite support to defendant, subject to reallocation
at the final hearing.
1
Mallamo v. Mallamo, 280 N.J. Super. 8 (App. Div. 1995).
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On November 2, 2020, following a two-day trial where the parties were
self-represented, the court issued a final judgment of divorce (FJOD) and
equitable distribution with a statement of reasons ("written decision") ordering
the dissolution of the marriage and resolving issues of custody, parenting ti me,
alimony, child support, and credits concerning pendente lite support obligations.
Due to "typographical errors that made the [o]rder inconsistent with the [c]ourt's
findings at trial," the court entered an AFJOD and with a written decision on
November 12. We limit our discussion of the court's ruling to the issues raised
on appeal.
Defendant sought limited duration alimony of $1800 per month for ten
years, totaling $216,000. The court disagreed. Based upon the factors set forth
in N.J.S.A. 2A:34-23(b) and -23(c), the testimony of the parties, pendente lite
support already paid, and documentary evidence, the court awarded defendant a
limited duration monthly alimony award of $2000 for eight years, totaling
$192,000.
As for child support, the court considered "the . . . support guidelines . . .
based on the parties' imputed incomes . . . plus defendant's receipt of spousal
support," determining "plaintiff would be responsible for $114 per week in child
support." Because "the parties' income exceed[ed] the maximum income for the
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guidelines but only due to the . . . imputation of income, the [c]ourt [determined]
that an upward adjustment of the child support guidelines [was] not equitable or
necessary." Plaintiff was ordered to pay $3363 in expert fees in addition to the
entirety of Dr. David Gomberg's expert fees, who was appointed by the court to
evaluate the parties' parental relationships with their son and recommend a
custody and parenting time arrangement.
The court further found plaintiff was not entitled to a Mallamo adjustment,
because despite reducing his child support payments from the pendente lite
award of $152 per week to $114 per week, plaintiff's arrears resulted in a $2898
credit as of the date of the AFJOD. The court rejected plaintiff's request for
alimony reimbursements, finding that, except for documenting the $1085 he
paid towards defendant's CPA preparation course costs, he was not entitled any
other credits because his testimony lacked credibility.
In conclusion, the court determined
after taking into consideration expert fees and the . . .
CPA class, plaintiff is entitled to a credit of $524.
Plaintiff is also entitled to a future credit of $13,500
toward spousal support based on his limited pendente
lite support payments. Plaintiff's net credit, after the
child support arrears calculation, is $14,024. Plaintiff
shall reduce his spousal support payment by $200 for
seventy months until the credit is satisfied.
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Plaintiff moved for reconsideration of the AFJOD. While the motion was
still pending, the self-represented plaintiff filed a notice of appeal regarding
certain provisions of the AFJOD. After the reconsideration motion was denied,
plaintiff, again representing himself, filed a notice of appeal challenging that
order. Plaintiff subsequently retained counsel, who successfully moved to
consolidate the two pending appeals with the Appellate Division.
II
In his appeal, plaintiff argues:
I. LEGAL STANDARD FOR REVIEW ON
APPEAL[.]
II. THE TRIAL COURT ERRONEOUSLY
ORDERED A CHILD SUPPORT OBLIGATION
FROM PLAINTIFF TO DEFENDANT DESPITE
THE CHILD SUPPORT GUIDELINES
INDICATING THAT THE OBLIGATION
SHOULD IN FACT RUN FROM DEFENDANT
TO PLAINTIFF AND DESPITE THE FACT
THAT THE CHILD HAD ALWAYS LIVED
WITH PLAINTIFF[.]
III. THE TRIAL COURT DID NOT PROPER[L]Y
APPLY THE EVIDENCE ADDUCED AT
TRIAL TO THE STATUTORY FACTORS
ENUMERATED IN N.J.S.A. 2A:34-23(B) AND
ABUSED ITS DISCRETION IN
DETERMINING PLAINTIFF'S ALIMONY
OBLIGATION[.]
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IV. THE TRIAL COURT ABUSED ITS
DISCRETION IN DENYING PLAINTIFF'S
CLAIM FOR REIMBURSEMENT ALIMONY
IN RECOGNITION OF PLAINTIFF'S
CONTRIBUTIONS TOWARD DEFENDANT'S
EDUCATION, TRAINING, AND LICENSURE
AS A CERTIFIED PUBLIC ACCOUNTANT[.]
V. THE TRIAL COURT DID NOT PROPERLY
EVALUATE PLAINTIFF'S CLAIMS FOR A
MALLAMO CREDIT IN LIGHT OF THE
EV[ID]ENCE ADDUCED AT TRIAL AND
ABUSED ITS DISCRETION IN NOT
AWARD[ING] A GREATER CREDIT TO
PLAINTIFF[.]
Our review of these issues is limited. We must defer to a trial court's
factual findings so long as they are supported by sufficient credible evidence.
Thieme v. Aucoin-Thieme, 227 N.J. 269, 282-83 (2016). We owe particular
deference to the court's evaluation of witness credibility. Cesare v. Cesare, 154
N.J. 394, 412 (1998). We also give deference to the expertise of the Family Part
in handling matrimonial matters. Ibid. We review a Family Part judge's alimony
determination for abuse of discretion. J.E.V. v. K.V., 426 N.J. Super. 475, 485
(App. Div. 2012) (citing Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div.
1996)).
Applying those legal standards here, we separately address plaintiff's
appeal points.
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A. Child Support
Plaintiff argues the AFJOD requiring that defendant pay $114 weekly in
child support was "based upon a palpably incorrect and irrational basis" and was
"clearly in error and an abuse of discretion." He reasons that the order did not
align with the child support determination worksheet attached to the AFJOD,
which listed "Plaintiff" as the custodial parent and had the $114 obligation in
the "Non-Custodial Parent" column of the worksheet. He argues his contention
that defendant is the rightful obligor is "confirmed by the fact that the [t]rial
[court] initially did order [d]efendant to pay $114 per week in child support [to]
[p]laintiff in the [FJOD]." Plaintiff further contends the court failed to consider
the competent evidence, and its AJOD "was internally inconsistent and self-
contradicting." Thus, plaintiff seeks a "remand[] for further consideration,
including . . . consideration of whether retroactive pendente lite support should
be granted to [him]."
A remand is in order. In the FJOD, plaintiff was the recipient of child
support because he was the custodial parent. However, in the AFJOD, the court
listed the recipient of child support as defendant without explanation.
Nevertheless, in both decisions the court stated, "[p]laintiff shall continue to pay
child support through the Morris County Probation Department." As plaintiff
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contends, the confusion is compounded by the child support guidelines
worksheet stating that the child support order "was based on" the child support
guidelines and imposing the obligation on defendant, the non-custodial parent.
And although the court stated in both decisions that the child support amount
was based on the N.J.S.A. 2A:34-23(a) factors, it did not adequately explain
how they were applied in requiring plaintiff––the custodial parent––to pay
weekly child support of $114. See R. 1:7-4(a); Heinl, 287 N.J. Super. at 347(holding the Family Part has "a duty to make findings of fact and to state [its]
reasons in support of [its] conclusions."). These concerns must be addressed by
the trial court on remand.
B. Alimony
Plaintiff argues the court's $2000 monthly limited duration alimony award
to defendant was an abuse of discretion because it was not supported by
sufficient credible evidence in the record. Specifically, plaintiff asserts that in
applying N.J.S.A. 2A:34-23(b), the court erroneously relied on the pendente lite
award to determine defendant's marital standard of living; incorrectly imputed
income to him related to potential earnings as a property manager given his age
of sixty-five years and lack of experience; and should not have considered
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income from his California properties which was already included in his imputed
income. We are unpersuaded.
"Imputation of income is a discretionary matter not capable of precise or
exact determination but rather requiring a trial [court] to realistically appraise
capacity to earn and job availability." Storey v. Storey, 373 N.J. Super. 464,
474 (App. Div. 2004). A trial court's imputation of a specific amount of income
"will not be overturned unless the underlying findings are inconsistent with or
unsupported by competent evidence." Id. at 474-75. There are no bright-line
rules that govern the imputation of income. Id. at 474. Only where the court
clearly abused its discretion or failed to consider all of the controlling legal
principles, should an appellate court overturn an award. Gonzalez-Posse v.
Ricciardulli, 410 N.J. Super. 340, 354 (App. Div. 2009). Limited duration
alimony is "available to a dependent spouse who made 'contributions to a
relatively short-term marriage that . . . demonstrated the attributes of a "marital
partnership"' [but] has the skills and education necessary to return to the
workforce." Gordon v. Rozenwald, 380 N.J. Super. 55, 65-66 (App. Div. 2005)
(quoting Cox v. Cox, 335 N.J. Super. 465, 483 (App. Div. 2000)).
In this case, the court heard the testimony of the parties and vocational
expert and had ample opportunity to evaluate their credibility. This led to the
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finding that both parties were voluntarily underemployed and could earn higher
incomes. As for plaintiff, Dr. Stein opined he had the ability to earn between
$85,000-$90,000 annually as a property manager in addition to the $80,000 he
earned as a property manager on his California properties. Dr. Stein further
concluded that if plaintiff opted to get surgery for his carpal tunnel syndrome,
he could earn an additional $90,000-$100,000 as a chiropractor, with his
potential earnings totaling $170,000-$180,000. As for defendant, Dr. Stein
opined that she was able to earn between $52,000-$62,000 per year as an
accountant.
Given our review of the record, the court's determination was based on
credible evidence regarding the parties' respective earning capacity and standard
of living. The court did not misapply the law, and given the high deference
afforded to its alimony determinations, the limited duration alimony award was
not an abuse of discretion.
C. Reimbursement Alimony and Mallamo Credits
Reimbursement alimony is awarded to a spouse who has made financial
sacrifices to allow his or her partner to secure an advanced degree or
professional license to enhance the parties' future standard of living. Gnall v.
Gnall, 222 N.J. 414, 432 (2015); N.J.S.A. 2A:34-23(e). "Reimbursement
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alimony is limited to 'monetary contributions made with the mutual and shared
expectation that both parties to the marriage will derive increased income and
material benefits.'" Gnall. 222 N.J. at 432 (quoting Mahoney v. Mahoney, 91
N.J. 488, 502-03 (1982)). Mallamo credits refer to the modification of pendente
lite support orders at the time a final judgment of divorce is entered. Slutsky v.
Slutsky, 451 N.J. Super. 332, 368 (App. Div. 2017).
Plaintiff contends the trial court erred in only awarding him $1085 in
reimbursement alimony for his payments towards defendant's CPA exam
preparation course and related vehicle expenses to travel to the course's classes.
He demands reimbursement for the $10,286 he paid for defendant's vehicle lease
payments during the same year he filed for divorce, claiming it was as an
investment in her employment career from which he will not benefit. Plaintiff
contends the court erred in rejecting reimbursement of the $4526 that he lost
from not being able to vacation outside the country with his son after the parties
separated and the pendente lite order forbid the parties from international
travelling with their son. He also seeks reversal of the same court order denying
him credit for the $15,000 that he spent on a vehicle lease for defendant to
commute to college based on Dr. Stein's assessment that defendant could have
afforded the lease.
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We see no reason to overturn the court's allowance of only $1085 in
reimbursement alimony for defendant's CPA exam preparation costs. The court
explained that plaintiff "only provided documentary evidence of $1,085 in costs"
and found his testimony regarding additional costs lacked credibility. Plaintiff
has not shown why we should upset the court's credibility determination.
With respect to the court's rejection of plaintiff's request for
reimbursement of $4526 for his cancelled vacation, the court failed to explain
why reimbursement was denied. R. 1:7-4(a). Thus, we remand for the court to
do so.
Plaintiff contends the court abused its discretion by not awarding him
greater Mallamo credits. Specifically, he maintains the calculation of the credits
for the pendente lite child and spousal support should be based on Dr. Stein's
determination of the parties' earning capacities and making them retroactive to
the pendente lite support order. Plaintiff also argues that "the entire $14,700 in
expert fees" should be apportioned between the parties, claiming there was the
over imputation of his income, and it was not his failure to cooperate that
prevented Dr. Gomberg from completing a child custody evaluation. We
disagree.
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Plaintiff has not presented any case law to support his claim that the
pendente lite amount should be recalculated back to the inception of the
pendente lite support order. Furthermore, plaintiff refused to pay the pendente
lite support, forcing defendant to have to request the court compel these
payments, which remained unpaid. Plaintiff should not benefit from failing to
comply with court orders. Plus, the court did not err in calculating the parties'
imputed earnings, thus the equitable division of fees based on these earning was
correct.
With respect to plaintiff's appeal of the trial court's denial of his
reconsideration motion, with exception of those parts of the AJOD that we
remanded for further clarification, we find no merit to his contentions and there
has been no showing the court's ruling was an abuse of discretion. See Branch
v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (citing Kornbleuth v.
Westover, 241 N.J. 289, 301 (2020)).
Our remand shall not be construed as expressing an opinion on the merits
of defendant's contention. Any arguments made by plaintiff that we have not
expressly addressed are without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
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Affirmed in part and reversed and remanded in part. We do not retain
jurisdiction.
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