Olt v. Olt

• Decision Date: 01 May 2020
• Docket Number: DOCKET NO. A-5156-18T1
• Parties: LYNNE M. OLT, Plaintiff-Respondent, v. J. BRIAN OLT, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

LYNNE M. OLT, Plaintiff-Respondent, v. J. BRIAN OLT, Defendant-Appellant.

DOCKET NO. A-5156-18T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued telephonically April 1, 2020

May 1, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

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 andprotracted 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 from 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 supportobligation 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.

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 19,2014. 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'scandor, 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 highlightthe 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...