Do you disagree with the way your child support award was calculated? In the recent, unpublished case of Marino v. Marino, the New Jersey Appellate Court sided with a father who did not agree with the lower court’s imputation of only $9,366 per year for his wife’s income. Mr. and Ms. Marino were divorced in 2009 and had one child, aged seventeen at the time of this case. Ms. Marino asked the court for permission to move with the child to Delaware in August 2010 and during that case, she told the court one of the reasons for the relocation was a job offer that would pay her more than the approximately $43,000 job she had in New Jersey.
For unknown reasons, it seems Ms. Marino did not land the job she described to the court. When ordered to provide financial information to the court and to her ex-husband, her records indicated that she only earned $9366 in the prior year of 2012. When recalculating the child support, this is the figure that the lower court used. Mr. Marino argued that the court should have used the $43,992 annual salary she had when they divorced as she was clearly capable of earning that much. Further, he argued that $9,366 does not equal even minimum wage.
The appellate court sided with Mr. Marino and relied on the Elrom case: “Imputation of income is a discretionary matter not capable of precise or exact determination[,] but rather requir[es] a trial judge to realistically appraise capacity to earn and job availability. “Also, citing the Caplan case, the Appellate Division found that,” If a parent is voluntarily unemployed or underemployed without just cause, the court is required to impute income.”
The appellate court also wondered why the trial court accepted that Ms. Marino had no reason why she wasn’t working full time, or why she wasn’t earning at least $43,992 per year. Because the lower court gave no reason for the $9,366 salary imputation, the appellate division found that the record was lacking and that there was no basis for this amount of annual salary to be imputed to Ms. Marino. The matter was sent back to the lower court with instructions: “We remand this matter for the trial court to hold a hearing within sixty days to determine, consistent with this opinion, the appropriate amount of child support the father is to pay…”
Why Ms. Marino was not working full-time remains unclear. The financial information that she did provide to the court showed that she was not working at all for periods of time after the parties divorced. The lower court’s decision does not seem to indicate that Ms. Marino was questioned about this at all, and that they simply took her last annual income (which was mostly unemployment benefits) when calculating the child support that Mr. Marino was ordered to pay. It appears as though Mr. Marino was forthcoming with his annual salary, providing complete documentation including his income tax returns.
What the eventual amount of child support will be remains to be seen. What is certain, however, is that the lower court must justify the very low annual income that was imputed to Ms. Marino, an income that does not equal even minimum wage in New Jersey.
If you are paying or receiving child support and are unsure regarding your rights or responsibilities, please contact us today to schedule your initial consultation with one of our attorneys experienced in child support matters.