Man with Ph.D. earns $7.87 per hour at Landmark Education as "life coach"

December 8, 2006

UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.

Superior Court of New Jersey,
Appellate Division.
Susan GOODMAN, Plaintiff-Respondent,
v.
Ira GOODMAN, Defendant-Appellant.

Argued telephonically Oct. 23, 2006.
Decided Dec. 8, 2006.

SYNOPSIS

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FM-02-1090-01.

Francine Del Vescovo argued the cause for appellant (Lomberg & Del Vescovo, attorneys; Ms. Del Vescovo and Janet S. Del Gaizo, on the brief).

Richard C. McDonnell argued the cause for respondent (McDonnell & Whitaker, attorneys; Mr. McDonnell on the brief).

Before Judges PAYNE and LIHOTZ.

PER CURIAM.

*1 In this post-judgment matrimonial matter, defendant Ira Goodman ("husband") appeals from an order of a Family Part judge, entered after a plenary hearing on his motion for reduction or cessation of alimony as the result of changed circumstances. In that order, the judge imputed annual income of $50,000 to husband, but reduced his alimony from $40,000 to $18,000 per year retroactive to November 1, 2004. On appeal, husband claims that the Family Part judge erred in not making the adjusted alimony payments retroactive to February 26, 2004, in imputing $50,000 per year in income to him, and in setting his alimony obligation at $18,000. We affirm, finding the judge's determinations to have been supported by the record and within her discretion.

Husband was divorced from his wife, plaintiff Susan Goodman ("wife"), on December 13, 2000, following a thirty-one-year marriage. A property settlement agreement (PSA), negotiated by the parties and incorporated into the judgment of divorce, required husband to pay alimony in twenty-four installments of $1,667 each, for a total of $40,000 per year. Additionally, it required husband to pay wife's car payments and a marital debt of $64,000, including college loans, but not including a mortgage on the marital home, a small three-bedroom condominium in Mahwah, New Jersey.

Husband, who has a Ph.D. in social/personality psychology, had worked as an elementary school teacher in the Bronx from 1968 to 1974. In 1975, he began a career in marketing research. During the period from 1987 to 1996, he was president of his own market research company, J.M.R. Marketing Services. However, he earned no appreciable income in the years 1995 and 1996, choosing during this period to serve as the New Jersey coordinator of Ross Perot's presidential campaign and to pursue various other political endeavors. The family had been forced to sell their home in New City to finance these pursuits and to pay living expenses.

At the time of the divorce in 2000, husband was employed by CLT Research Associates, Inc. as Research Group Manager, earning a salary of $85,000. He then assumed the position of Vice-President of CRI, Inc., and in 2001, he earned $115,000. In 2002, he earned $103,000, netting $98,000 as the result of a business loss.

Wife, a college graduate with a master's degree, was a homemaker throughout much of the marriage, working part-time in various occupations and assisting her husband in his business. In 1996, she commenced full-time employment as a Head Start teacher and presently earns a salary of $38,000 per year. The couple's three children are emancipated.

In November 2002, when in his early fifties, husband was laid off from his employment. He continued to consult with his former employer until February 2003, and collected unemployment insurance until January 2004. Although husband conducted an extensive job search in the marketing field and in college teaching, a field in which he had served as an adjunct professor from 1973 to 1978, he was unable to obtain employment in those areas.

*2 In January 2003, husband moved to Florida for unstated reasons, and he remarried in June of that year. Although, after moving to Florida, husband established an independent marketing research consulting firm, he was unable to financially sustain that enterprise. He is presently employed by Landmark Education, a motivational training company, as a life coach at a salary that amounted to $7.87 per hour. Husband's income from Landmark, including overtime, is $29,900 per year, although he testified at the hearing that he expected a $7,000 increase in July 2005 and sought eventually to become Landmark's manager for Florida at an unknown salary. Husband professed to "love" his job, but expressed a willingness to accept a marketing position at a higher salary, if it were offered, in order to meet his financial obligations.

In an oral opinion, the Family Part judge did not question husband's efforts to obtain a market research position or his statement that he was "completely broke," finding that he was not hiding assets. However, she found husband, whose job history she found to be quixotic, to be voluntarily underemployed. Although she did not find husband to be reasonably capable of earning the $85,000 in annual income that he had received during the year of the divorce, she noted that husband could have earned in the range of $50,000 as an elementary school teacher--a position that he did not seek, but for which he was qualified. She therefore attributed earnings in that amount to husband, reduced his alimony obligation accordingly, made the reduction retroactive to the date upon which husband had filed his motion for permanent reduction or termination of his support obligations, and required that arrears be paid within ninety days. The judge declined to award counsel fees to either party.

On appeal, husband argues that the court erred in imputing $50,000 in income to him, and he claims that evidence of his exhaustive, but unsuccessful, job search in the fields of marketing and college teaching demonstrated his inability to obtain more remunerative employment and justified his career change and concomitantly reduced income. Having considered husband's evidence and similar arguments at the hearing, the motion judge viewed matters differently, finding husband to be "voluntarily underemployed."

For someone with a Ph.D. in social psychology who earns $7.87 an hour is in my view tremendously underemployed. He did not look for jobs that pay more money such as public school education or even selling cars or working in an office environment. When applying the [C]aplan [FN1] factors, it appears that [husband's] choice to be employed at Landmark is a voluntar[y] one. I base this also on the fact that he has this apparent pattern of seeking fulfillment, personal fulfillment over money, which is fine, except that he can't do that at the expense of his prior wife.

FN1. Caplan v. Caplan, 182 N.J. 250, 268 (2005).

We find no basis for disturbing the judge's conclusion, which is fully supported by evidence relating to husband's education, job history, and prior non-remunerative pursuits. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974); Cesare v. Cesare, 154 N.J. 394, 412-13 (1998); Robertson v. Robertson, 381 N.J.Super. 199, 206 (App.Div.2005); Storey v.. Storey, 373 N.J.Super. 464, 475, 479 (App.Div.2004). As then-Judge Long observed in the context of the voluntary, early retirement of a supporting former spouse,

*3 Any party is free to retire, take a vow of poverty, write poetry or hawk roses in an airport, if he or she sees fit. The only limitation is discontinuance of the financial aid the former spouse requires. The reason for this is that the duty of self-fulfillment must give way to the pre-existing duty which runs between spouses who have been in a marriage which has failed.

[Deegan v. Deegan, 254 N.J.Super. 350-358-59 (App.Div.1992).]

Although husband correctly argues that his present employment builds upon his skills as a psychologist, and that he has prospects for modestly enhanced earnings in the future, Storey, supra, 373 N.J.Super. at 470-71, we find no mis-application of Storey's factors by the motion judge, as husband contends, and we concur with her conclusion that husband's choice of a career as a life coach, earning a minimum wage, was not reasonable, given career choices open to him other than those that he had explored in his job search, including elementary school teaching, and given the significant economic disadvantage to wife that husband's career choice imposed. Id. at 478-79.

We likewise reject husband's argument that, after imputing an annual income to him of $50,000, the motion judge erred in setting defendant's alimony obligation at $18,000 per year. In that regard, the judge recognized wife's present income of $38,000. Further, she accepted testimony by wife, who the judge found to be "very honest under oath," that while deprived of alimony, she had been taking about $1,500 per month out of her savings to meet her needs, resulting in an annual expenditure of $18,000. Finally, the judge found that use of the funds permitted wife to live in a manner that approximated the marital standard of living. In doing so, the motion judge properly applied the standards governing husband's application for modification of his alimony obligation articulated by the Court in cases such as Lepis v. Lepis, 83 N.J. 139, 152 (1980), and Miller v. Miller, 160 N.J. 408, 420 (1999).

As a final matter, we find no merit in husband's argument that the motion judge erred in ordering his reduced alimony obligation to be effective as of November 1, 2004, not February 25, 2004. Prior to the effective date sought by husband, on February 19, 2004, wife had commenced an action against husband to enforce the alimony provisions of the PSA. On February 25, 2004, husband cross-moved for an order "temporarily" reducing his alimony obligation until he secured employment and modifying the PSA to reduce husband's alimony payments in accordance with his income, once employment was obtained. The relief sought by husband was denied by the motion judge in an order dated March 19, 2004. However, she ordered discovery to occur and provided that, at the conclusion of the discovery period, the husband could move for a plenary hearing. Husband's October 28, 2004 motion for termination or a permanent reduction in alimony was filed in accordance with the court's order.

*4 In similar cases, we have not hesitated to affirm a retroactively applied reduction in alimony in appropriate circumstances. See, e .g., Clarke v. Clarke, 349 N.J.Super. 55, 57-59 (App.Div.2002); Schwartzman v. Schwartzman, 248 N.J.Super. 73, 79 (App.Div.) certif. denied, 126 N.J. 341 (1991). However, a court's decision in setting the retroactive date of an alimony modification falls within its sound discretion. Clarke, supra, 349 N.J.Super. at 58-59; Walles v. Walles, 295 N .J.Super. 498, 514 (App.Div.1996). We discern no abuse of discretion to have occurred as the result of the adoption by the motion judge of the approximate filing date of husband's motion for a permanent reduction or elimination of alimony as the appropriate retroactive date in this case.

Affirmed.

Not Reported in A.2d, 2006 WL 3524288 (N.J.Super.A.D.)

END OF DOCUMENT