LYNNE M. OLT VS. J. BRIAN OLT (FM-08-0868-05, GLOUCESTER COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-5156-18T1
LYNNE M. OLT,
Plaintiff-Respondent,
v.
J. BRIAN OLT,
Defendant-Appellant.
____________________________
Argued telephonically April 1, 2020 –
Decided May 1, 2020
Before Judges Whipple, Gooden Brown and Mawla.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester County,
Docket No. FM-08-0868-05.
Ted M. Rosenberg argued the cause for appellant.
Peter M. Halden argued the cause for respondent
(Borger Matez, PA, attorneys; Peter M. Halden, on the
brief).
PER CURIAM
In this post-judgment matrimonial matter, defendant (father) appeals from
the February 8, 2019 Family Part order increasing his child support obligation
to $265 per week, the May 24, 2019 order denying his motion for
reconsideration, and the July 22, 2019 order awarding plaintiff (mother)
$12,206.25 in counsel fees. We affirm.
This matter returns to us for the third time. By way of background, the
parties divorced in 2006 after a seven-year marriage that produced three
children, born in 2000, 2004, and 2005, respectively. They have joint legal
custody of the children and a shared parenting-time schedule, with plaintiff
designated the parent of primary residence and defendant the parent of alternate
residence. When the parties divorced, child support was established at $187 per
week based on defendant's presumptive entitlement to 104 overnights per year,
defendant's $1423 gross weekly income, and plaintiff's imputed income of $375
per week. Plaintiff is a cosmetologist and defendant has a bachelor's degree in
marketing and management. For twenty-one years, defendant was employed as
either a chief financial officer (CFO) or corporate controller by various
companies until he was terminated in March 2009 while earning approximately
$93,000 per year. Since then, the parties have engaged in extensive and
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2
protracted post-judgment litigation focused primarily on recalculating child
support.
We incorporate by reference the facts and procedural history set forth at
length in our first unpublished decision, in which defendant appealed from the
April 20, 2012 order granting "his motion to modify child support based on
changed financial circumstances." Olt v. Olt, No. A-4629-11 (App. Div. Mar.
27, 2013) (slip op. at 1). There, defendant challenged the $45,000 in annual
income imputed to him, and the child-care costs deducted from the income
imputed to plaintiff. Ibid. We affirmed "the decision to deduct child-care costs
from plaintiff's imputed income," reversed the "decision to impute income to
defendant" and remanded "for a plenary hearing" because there were "genuine
issues of fact as to whether defendant's unemployment was voluntary and
without just cause." Id. at 8-10.
We also incorporate by reference the facts and procedural history set forth
at length in our second unpublished decision, in which defendant appealed fro m
the May 6 and July 25, 2016 orders increasing his child support obligation and
awarding counsel fees to plaintiff. L.M.O. v. J.B.O., No. A-5556-15 (App. Div.
Apr. 3, 2018) (slip op. at 1). There, we chronicled defendant's child support
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3
obligation following the divorce, his termination from employment in March
2009, and the plenary hearing conducted after our first reversal as follows:
In a June 12, 2009 order, the trial judge recalculated
child support due to the termination of alimony and
increased defendant's weekly child support obligation
to $282, effective May 13, 2009, based on defendant's
annual gross income as reported in his 2008 W-2 of
$92,783.24.
In an August 7, 2009 order, the judge denied
defendant's motion for reconsideration. However, in a
December 10, 2010 order, a different judge granted
defendant's motion to modify his child support
obligation based on his unemployment. . . . Noting that
defendant was "doing the best he can to find
employment in the current market[,]" the judge reduced
defendant's weekly child support obligation to $202,
effective October 26, 2010, . . . based on an imputed
annual income of $75,000.
In February 2012, defendant again moved for a
child support reduction or suspension based on his
continued unemployment. The judge found that
defendant had been unemployed for three years while
actively seeking employment in his prior industry, that
defendant had exhausted his unemployment benefits
averaging $29,000 per year, and that defendant's only
source of income was profits from a petroleum
company and $22,000 in annual gross rental income
from his New Jersey townhome. After granting
defendant's motion and imputing annual income to
defendant of $45,000, in an April 20, 2012 order, the
judge ordered defendant to pay a total of $204 per week
in child support, retroactive to February 29, 2012.
A-5156-18T1
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Defendant appealed the April 20, 2012 order,
challenging the income imputed to him and the child-
care costs deducted from plaintiff's imputed income.
We reversed and remanded for a plenary hearing, which
was conducted on October 31, 2013. Following the
plenary hearing, the judge increased defendant's weekly
child support obligation to $217 for the period February
29 to June 8, 2012, based on gross weekly income of
$923, and to $293 thereafter based on gross weekly
income of $1538. The judge calculated defendant's
income based on his actual earned income at the time
of approximately $26,000 per year, imputed income
from the rental property of $10,000 per year, and
imputed profits from the petroleum business of $12,000
per year, for a total of $48,000 per year. . . .
....
In 2014, defendant again moved for a child
support reduction to $161 per week, retroactive to
November 1, 2012. . . . In a December 19, 2014 order,
a different judge granted defendant's request and
reduced his weekly child support obligation to $161,
allowing for 104 overnights, but found "no justification
to retroactively modify the support award to November
1, 2012" . . . . Instead, the reduced award was effective
October 30, 2014.
In 2015, defendant moved for reconsideration of
the December 19, 2014 order and recalculation of his
child support obligation, retroactive to November 1,
2012, based upon a substantial change in
circumstances. In a March 13, 2015 order, the judge
denied his reconsideration motion, but granted his
motion to recalculate child support. The judge accepted
defendant's certification that he no longer received
rental income from his New Jersey property and
dissolved his petroleum company on February 19,
A-5156-18T1
5
2014. Thus, absent the rental income and business
profits, the judge determined that "defendant may be in
the midst of changed circumstances," as "he is currently
in a salaried position earning approximately
$25,000.00" per year as a pizza-maker. Accordingly,
the judge reduced defendant's child support obligation
to $55 per week . . . .
On July 7, 2015, plaintiff moved for
reinstatement of the weekly $161 child support award
and for an order authorizing her to obtain discovery
regarding defendant's recent purchase of a home and
business in Florida. In an August 28, 2015 order, the
judge denied plaintiff's motion for reinstatement of the
prior child support award, finding no changed
circumstances, but allowed plaintiff to undertake
discovery to develop facts establishing changed
circumstances.
[Id. at 2-6.]
Based on information plaintiff uncovered during discovery, "mainly the
movement of large sums of money in defendant's accounts, show[ing] that
defendant was actively pursuing business ventures requiring access to capital,"
the judge "implicitly found a change in circumstances warranting a modification
of child support" and "reinstated the weekly child support award of $161,
effective February 17, 2016." Id. at 10, 15. "The judge could not reconcile how
defendant obtained such large loans without an underlying—and yet
undisclosed—asset or continuous income stream, and rejected defendant's
explanations." Id. at 15. However, "[b]ecause the judge questioned defendant's
A-5156-18T1
6
candor, she made critical credibility determinations about defendant's proofs
without conducting a plenary hearing." Ibid. Defendant appealed, arguing the
judge erred by making factual findings about his current income without setting
a discovery schedule and conducting a plenary hearing. Id. at 13. We agreed
and reversed and remanded "for a plenary hearing with discovery within the
judge's discretion." Id. at 16-17.
On the remand, Judge William F. Ziegler entered a discovery order on
June 22, 2018, directing the parties to "exchange interrogatories and take each
other's depositions, third party depositions or any other normal discovery
method." The judge also ordered both parties to file "[r]evised and updated Case
Information Statements [CIS] . . . outlining not only what the circumstances
were in 2015-2016, but through to the present." After discovery was completed,
the judge conducted a two-day plenary hearing during which both parties
testified. Numerous documentary exhibits were also moved into evidence.
Following the hearing, on February 8, 2019, the judge issued an order and
accompanying sixteen-page written opinion, increasing defendant's child
support obligation to "$265 per week . . . retroactive to February 17, 2016." In
the opinion, which we incorporate by reference, the judge made detailed
credibility determinations, factual findings, and legal conclusions. We highlight
A-5156-18T1
7
the judge's key findings which are pertinent to this appeal. Preliminarily, the
judge noted that based on defendant's "Social Security earnings statement[s],"
his gross annual earnings from 2010 to 2016 ranged from $31,000 in 2010 to
zero dollars in 2011, 2014, and 2016. Defendant "testified that at present he is
a full-time salaried employee with New York [T]ile and [M]arble and earns
$27,300 as a 1099 independent contractor with the potential to eventually earn
commissions." Regarding the "large loans" the prior judge "could not reconcile"
without defendant having an "undisclosed . . . income stream," id. at 15, Judge
Ziegler accepted as "credible" defendant's explanation that he had access to
"multiple old lines of credit[,] . . . all of which preceded his unemployment . . .
in 2009." However, the judge found defendant's "credibility . . . lacking in
several regards" in connection with "the benefits . . . he receive[d] from his
mother."
In that regard, the judge noted:
[P]laintiff . . . demonstrated . . . the existence of a bank
account in trust for the benefit of the defendant owned
by [his mother]. . . . Those trust funds had an account
balance of anywhere between $49,050 and $58,000
during the period of time provided for review. . . .
[Defendant] acknowledges that he was aware of the
existence of that bank account which was not disclosed
on his prior [CIS] nor disclosed to the court at the time
of the previous proceedings relating to the calculation
of his child support obligation. His explanation being
A-5156-18T1
8
that he is not a signatory on the account, cannot
withdraw funds, has no access to said funds and that the
funds have been established solely by his mother for his
benefit. Nevertheless[,] I find that he should have
disclosed the existence of this account at the time of the
previous proceedings.
Additionally, according to the judge, "[d]efendant is very close with his
mother and assists her on an almost full-time basis with regard to the acquisition,
renovation and resale of residential properties in the State of Florida." The judge
continued:
[Defendant] claims that the first time he and his mother
flipped a property that they made an approximate
$20,000 profit but that he received nothing. He
testified that he spends time organizing the various
subcontractors to perform renovations on various
properties in Florida but that since he is not familiar
with building codes, and does not have a Florida
[g]eneral contractor license, that he is really a glorified
gopher and that he picks up supplies and generally runs
errands but is not involved in a hands-on way in the
renovation of the various real estate in which he resides
notwithstanding the fact that the properties generally do
not have certificates of occupancy while he is there.
The judge explained:
[Defendant's] claim that the extensive work that he does
on his mother's behalf is solely to allow him to obtain
free rent is lacking candor. The defendant is able to fly
on Spirit Airways no less than [twenty-six] roundtrips
per year from Florida. When he is in New Jersey he
stays in a home in Berlin that is owned by his mother.
He drives a car that is owned by his mother. When in
A-5156-18T1
9
Florida he stays in one of the several properties that are
in the process of renovation. He lives rent-free in
Delray Beach[,] Florida. His mother pays all of his
expenses. He argues that his mother loves him and
wants to take care of him. He is an approximately
[fifty]-year-old man with a college degree and three
children to support.
....
His mother pays for his child support and pays
for his flights to New Jersey to visit with his daughter.
The judge concluded that
defendant and his mother have conspired to ensure that
the defendant never shows any reportable income,
allowing whatever income is generated as a result of
their joint enterprise together to be reflected on her
individual tax return. In essence, the defendant
receives in-kind contributions because his mother owns
and pays for everything.
He claims that he intends to eventually "get back
on [his] feet" and pay his mother back. Given his age
and the fact that his children are now aged [eighteen],
[fifteen] and [thirteen] it strains credibility to believe
that he will ever pay his mother back. More likely, and
I find by a preponderance of the evidence, the monies
that he realizes and which support his lifestyle, funded
through his mother, will never be repaid back to his
mother or her estate. Those sums, I find, constitute in-
kind contributions, not gifts, based upon his labor in
finding, assisting his mother in the acquisition of,
managing the renovation of and eventually flipping
residential properties in the State of Florida.
A-5156-18T1
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In rejecting defendant's characterization of the "benefits as gifts from his
mother," Judge Ziegler explained
If these are truly gifts one would have expected that the
defendant's mother would have testified or provided
proof that the monies really were gifts together with
evidence of her filed gift tax returns . . . .
Moreover, the failure of defendant to call his
mother as a witness allows me to take an adverse
inference that her testimony would not have been
helpful to defendant's cause. [1]
See Torres v. Pabon, 225 N.J. 167, 181 (2016) ("An adverse inference charge
may be warranted when a party's failure to present evidence 'raises a natural
inference that the party so failing fears exposure of those facts would be
unfavorable to him.'" (quoting State v. Clawans, 38 N.J. 162, 170 (1962)));
Washington v. Perez, 219 N.J. 338, 352 (2014) ("When 'a party fails to produce
a witness who is within its power to produce and who should have been
produced,' the adverse inference rule permits the factfinder 'to infer that the
1
In reaching this conclusion, the judge applied the four factors delineated in
State v. Hill, namely, "that there is a special relationship between the party and
the witness;" "that the witness is available to that party both practically and
physically;" "that the testimony of the uncalled witness will elucidate relevant
and critical facts in issue[;]" and "that such testimony appears to be superior to
that already utilized in respect to the fact to be proven." 199 N.J. 545, 561
(2009) (alteration in original) (quoting State v. Hickman, 204 N.J. Super. 409,
414 (App. Div. 1985)).
A-5156-18T1
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witness's evidence is unfavorable to the party's case.'" (quoting Black's Law
Dictionary 62 (9th ed. 2009))).
Next the judge determined "the fair value of the services rendered by . . .
defendant to his mother" in "assisting [her] in the flipping of homes" and "the
value of the in-kind contributions" defendant "receives in return." Based on his
review of the evidence, the judge found
revolving credit card debt incurred by the defendant for
the purposes of the renovation of properties and for his
own living expenses totaling $33,947 for
approximately [twenty-six] weeks which equals $1400
per week or $72,800 per year. [Defendant] claims that
his mother pays for all of his expenses, pays for all of
his flights and gives him the benefit of roughly $5000
per month in expenses. . . . Taking these things into
consideration I find that the defendant receives
approximately $60,000 or more in in-kind contributions
from his mother either in the form of free rent, airline
tickets or the payment of his credit cards. Moreover[,]
he receives the sums tax-free meaning that the average
annual benefit that his mother pays him in gross dollars
is approximately $83,333 per year which when tax
impacted at 28% results in a net payment to defendant
of $60,000.
Moreover, the description of his activities with
regard to the renovation of the various properties in the
State of Florida discloses that the defendant is more
than just a gopher as in to "go for this and go for that"
but more akin to a construction manager who
coordinates the various subcontractors towards the end
that a finished product is created. According to the
Bureau of Labor Statistics construction managers can
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expect to earn median pay of approximately $91,000
per year. Simply put, I find by a preponderance of the
evidence that defendant is underemployed and has used
the relationship with his mother to hide the true value
of his own human capital so as to avoid the payment of
child support.
I therefore find that the evidence supports, by a
preponderance of the evidence, that the defendant must
be imputed gross income in the amount of $83,333 per
year which number is based upon the various exhibits
and the benefits paid to or on behalf of the defendant
by his mother. I simply do not believe his testimony
that his mother is providing him with all of these
benefits out of love alone. His testimony in this regard
is not credible in my opinion. When pressed on these
points on examination by plaintiff's counsel he seemed
to be both confused in part and evasive at times. For
purposes of the child support calculation . . .
[defendant] will be imputed gross income in the amount
of $83,333 per year.
See Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules,
Appendix IX-B to R. 5:6A, www.gannlaw.com (2020) (defining gross income
of a parent from which child support is calculated to include "income from"
"gains derived from dealings in property," "an interest in a trust," "the sale of
investments (net capital gain) or earnings from investments," "unreported cash
payments," "the value of in-kind benefits," and "imputed income.").
Turning to plaintiff's income, the judge explained:
[P]laintiff testified that she currently works as a special
education aid[e] within the Moorestown [S]chool
A-5156-18T1
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District and she earns approximately $17,772 per year
as reflected on her social security earning statement
. . . . She acknowledges that she has worked as a
cosmetologist in the past but has not done that since she
became a mother approximately [eighteen] years ago.
She testified and I find reasonably and credibly that the
job allows her to spend the summers off with her
children and provides her with medical insurance,
something the defendant has not recently been able to
do. On cross-examination it was proffered that if the
Department of Labor wage compendium were utilized
for a cosmetologist that she should make more money
or $29,000 as a median and at 75% she should make
$38,600 per year. I find the plaintiff's job choice to be
reasonable under the circumstances. While she could
make more money in gross dollars as a cosmetologist
those jobs would not provide the type of benefits,
including family health insurance coverage which she
is able to obtain through the Moorestown School
District. It is not an unreasonable position for a parent
of primary residence of children who were previously
young and [who] are now all teenagers to have the
summers off and have a job wherein the benefits will
provide for health coverage for the children.
Utilizing the child support guidelines, the judge calculated defendant's
child support obligation based on "credit for 104 overnights with all three
children," notwithstanding the fact that defendant only "engage[d] in parenting
time with his youngest daughter, . . . now age [thirteen]," because "plaintiff did
not do everything . . . within her power to foster a positive relationship between
. . . defendant . . . and his [two] oldest children." The judge made the award
"retroactive to February 17, 2016," the date of plaintiff's "filing of the motion
A-5156-18T1
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that resulted in . . . [the] May 6, 2016 order" which was the subject of the second
reversal. In support, the judge noted that nothing in N.J.S.A. 2A:17-56.23a,
barring retroactive modification of child support, "bars the retroactive entry of
orders increasing child support where equitable."
Thereafter, defendant moved for reconsideration, arguing that "because
the court took an improper adverse inference against him for failure to call his
mother to testify at the plenary hearing," "the imputation of income . . . in the
sum of $83,333 [was] palpably incorrect and ignore[d] probative, competent
evidence in the record." Plaintiff cross-moved for reconsideration of
"defendant's child support obligation," arguing that the combination "of his
salary and his in-kind income," totaling $110,833 annually, should have been
used in calculating the award. Plaintiff also moved for counsel fees, asserting
"it would be unfair and inequitable for [her] to bear the entire burden of legal
fees, given . . . defendant's documented history of untruths, half-truths and
unrelenting efforts to live a grandiose lifestyle while portraying himself as a
basic pau[p]er."
In a written opinion dated May 24, 2019, after applying the governing
legal principles, the judge denied both motions for reconsideration, concluding
that the court was not "'palpably incorrect or irrational' in its decision," nor failed
A-5156-18T1
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to "consider evidence, or that additional evidence . . . would change the
outcome." See Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super.
299, 310 (App. Div. 2008) ("Reconsideration should be utilized only for those
cases . . . that fall within that narrow corridor in which either 1) the [c]ourt has
expressed its decision based upon a palpably incorrect or irrational basis, or 2)
it is obvious that the [c]ourt either did not consider, or failed to appreciate the
significance of probative, competent evidence." (alterations in original) (quoting
D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990))). Instead, Judge
Ziegler determined defendant was "merely attempting to take a second 'bite at
the apple' because he [was] dissatisfied with the [c]hild [s]upport figure he [was]
obligated to pay." See Medina v. Pitta, 442 N.J. Super. 1, 18 (App. Div. 2015)
("[A] motion for reconsideration provides the court, and not the litigant, with an
opportunity to take a second bite at the apple to correct errors inherent in a prior
ruling."). In denying plaintiff's reconsideration motion, the judge determined
"[a]dding [d]efendant's salary to the amount of income he was imputed . . .
would be inconsistent with the imputation itself and also inequitable."
Turning to plaintiff's motion for counsel fees, applying N.J.S.A. 2A:34-
23, authorizing the award of counsel fees in child support applications based on
A-5156-18T1
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consideration of "the factors set forth in [Rule 5:3-5(c)2], the financial
circumstances of the parties, and the good or bad faith of either party," the judge
determined "a counsel fee award . . . [was] warranted." The judge found that
defendant "acted in bad faith for a significant period of time by hiding income
in an attempt to avoid his obligation to pay [c]hild [s]upport ," but deferred the
determination of the amount of the award pending submission from counsel of
2
Rule 5:3-5(c) provides that:
the court should consider, in addition to the information
required to be submitted pursuant to [Rule] 4:42-9, the
following factors: (1) the financial circumstances of the
parties; (2) the ability of the parties to pay their own
fees or to contribute to the fees of the other party; (3)
the reasonableness and good faith of the positions
advanced by the parties both during and prior to trial;
(4) the extent of the fees incurred by both parties; (5)
any fees previously awarded; (6) the amount of fees
previously paid to counsel by each party; (7) the results
obtained; (8) the degree to which fees were incurred to
enforce existing orders or to compel discovery; and (9)
any other factor bearing on the fairness of an award.
Rule 4:42-9(b) requires that an application for counsel fees "be supported by an
affidavit of services addressing the factors enumerated by RPC 1.5(a)." These
factors relate to (1) "the time and labor required"; (2) whether the case will
"preclude other employment" for the attorney; (3) "the fee customarily charged";
(4) "the amount involved and the results obtained"; (5) any time limitations; (6)
"the nature and length of the relationship with the client"; (7) "the experience,
reputation, and ability of the lawyer or lawyers performing the services"; and
(8) "whether the fee is fixed or contingent." RPC 1.5(a).
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"[t]he [c]ertification of [s]ervices . . . to account for all reasonable fees incurred"
in "the plenary hearing" and the "filing of the [present] motion."
On June 22, 2019, after considering the certification of services, the judge
entered an award "reflect[ing] all hours billed by [plaintiff's attorney] minus
[$2500] to account for [d]efendant's need to financially support the child born
of his current marriage, remand from the Appellate Division, and his current
financial status." In an accompanying written opinion, the judge acknowledged
that both parties "earn minimal [actual] income," are not "in a position to pay
their own counsel fees absent financial hardship," "receive substantial financial
support from their families," and "have accrued tens of thousands of dollars in
counsel fees." However, "[a]ll fees incurred by [p]laintiff . . . were a result of
child support enforcement applications brought on her behalf," and "[p]laintiff
was, in part, victorious in the plenary hearing," and "in [d]efendant's most recent
application for [r]econsideration." The judge continued:
That being said, the appellate decision which prompted
redress at the plenary hearing was rendered in favor of
[d]efendant. While I did not ultimately accept
[d]efendant's position at the plenary hearing, I do find
that the last two [o]rders of this court were a result of
[d]efendant's successful appeal and should be
considered when determining the amount of counsel
fees to be awarded to [p]laintiff.
That fact notwithstanding, the judge explained:
A-5156-18T1
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Plaintiff has taken a reasonable and good faith position
since the commencement of this litigation. Plaintiff has
filed numerous enforcement applications to compel
[d]efendant's payment of his child support obligation so
that the parties' children can benefit from the monies
made due and payable on their behalf. Defendant has
filed numerous applications to reduce and or terminate
his child support obligation. While Defendant is well
within his rights to do so, the foundation of
[d]efendant's position in his most recent application
was one of deceit and overall bad faith. This court
found that [d]efendant consciously disguised financial
benefits provided to him by his mother . . . for services
rendered in her real estate ventures so that he would not
have to pay child support in the amount pr[e]scribed by
the court, if at all. Defendant claimed numerous years
of zero . . . income prior to entry of the February[] 2019
[o]rder, all the while receiving in-kind contributions
from his mother in the amount of $83,333.00 per year.
Defendant did not simply fail to disclose the existence
of a bank account or fail to disclose the existence of a
pension in pay status. Defendant consciously conspired
with his mother to keep income "off the books" so he
could be relieved, totally or in part, of his child support
obligation.
On appeal, defendant argues the "judge abused his discretion by setting
child support . . . retroactively from February 17, 2016"; by imputing "income
of $83,333 per year"; by drawing "an adverse inference that '[his mother's]
testimony would not have been helpful to defendant's cause'" in violation of Hill,
199 N.J. at 561; by determining that "the receipt of gifts from [his] mother"
constituted in-kind contributions; "by not imputing income to . . . plaintiff"; and
A-5156-18T1
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by "[in]appropriately weighing" the applicable factors in awarding counsel fees
to plaintiff. Based on our review of the record and the applicable law, we reject
defendant's contentions and affirm substantially for the reasons expressed by
Judge Ziegler in his thoughtful, cogent, and well-reasoned written opinions. We
add the following comments.
Our scope of review of Family Part orders is limited. We owe substantial
deference to the Family Part's findings of fact because of that court's special
expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Our
"[d]eference is especially appropriate 'when the evidence is largely testimonial
and involves questions of credibility.'" Id. at 412 (quoting In re Return of
Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Such deference is afforded to
"credibility determinations . . . because the trial judge 'hears the case, sees and
observes the witnesses, and hears them testify.'" Gnall v. Gnall, 222 N.J. 414,
428 (2015) (quoting Cesare, 154 N.J. at 412). Thus, "[a] reviewing court should
uphold the factual findings undergirding the trial court's decision if they are
supported by adequate, substantial and credible evidence on the record."
MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (alteration in original)
(quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).
A-5156-18T1
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While we owe no special deference to the judge's legal conclusions,
Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), we
"'should not disturb the factual findings and legal conclusions of the trial judge
unless . . . convinced that they are so manifestly unsupported by or inconsistent
with the competent, relevant and reasonably credible evidence as to offend the
interests of justice' or when we determine the court has palpably abused its
discretion." Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (alteration
in original) (quoting Cesare, 154 N.J. at 412). We will only reverse the judge's
decision when it is necessary to "'ensure that there is not a denial of justice'
because the family court's 'conclusions are [] "clearly mistaken" or "wide of the
mark."'" Id. at 48 (alteration in original) (quoting N.J. Div. of Youth & Family
Servs. v. E.P., 196 N.J. 88, 104 (2008)).
Pertinent to this appeal, "[o]ur case law has consistently held that when a
parent, without just cause, is voluntarily unemployed or underemployed, income
may be imputed to that parent to provide for the child's needs." Caplan v.
Caplan, 182 N.J. 250, 268 (2005). "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). In "apprais[ing] realistically
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[a parent's] potential earning power . . . . our courts have always looked beyond
the [parent's] claims of limited resources and economic opportunity. They have
gone far to compel a parent to do what in equity and good conscience should be
done for [the] children." Lynn v. Lynn, 165 N.J. Super. 328, 341 (App. Div.
1979) (quoting Mowery v. Mowery, 38 N.J. Super. 92, 102 (App. Div. 1955)).
Accordingly, "[w]hen reviewing decisions granting or denying applications to
modify child support," we "examine whether, given the facts, the trial judge
abused his or her discretion." Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (2012).
Similarly, "the award of counsel fees and costs in a matrimonial action
rests in the discretion of the court." Williams v. Williams, 59 N.J. 229, 233
(1971). When a trial court has made "appropriate findings of fact, a fee award
is accorded substantial deference and will be disturbed only in the clearest case
of abuse of discretion." Yueh v. Yueh, 329 N.J. Super. 447, 466 (App. Div.
2002) (Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). We likewise review the
denial of reconsideration for an abuse of discretion. Cummings v. Bahr, 295
N.J. Super. 374, 389 (App. Div. 1996). "An abuse of discretion 'arises when a
decision is "made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis."'" Milne v.
Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (quoting Flagg v. Essex
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Cty. Prosecutor, 171 N.J. 561, 571 (2002)). "'Of course, the exercise of this
discretion is not limitless[,]' and remains guided by the law and principles of
equity." Jacoby, 427 N.J. Super. at 116 (alteration in original) (quoting
Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd in part
and modified in part, 183 N.J. 290 (2005)).
Applying these principles, defendant's arguments reveal nothing "so wide
of the mark" that we could reasonably conclude that a clear mistake was made
by the judge. Contrary to defendant's contentions, we find no abuse of discretion
in the judge's imputation of income, denial of reconsideration, or award of
counsel fees. The record amply supports Judge Ziegler's factual findings and,
in light of those findings, his legal conclusions are unassailable.
Affirmed.
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