                                NOT FOR PUBLICATION WITHOUT THE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-2439-16T4

E.L.1,

          Plaintiff-Respondent,

v.

H.L.,

   Defendant-Appellant.
————————————

                    Argued November 28, 2018 – Decided December 13, 2018

                    Before Judges Nugent, Reisner, and Mawla.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Mercer County,
                    Docket No. FM-11-0516-11.

                    H.L., appellant, argued the cause pro se.

                    E.L., respondent, argued the cause pro se.

PER CURIAM




1
     We use the parties' initials to protect the privacy of their financial information.
      Defendant appeals from a January 10, 2017 order entered following a

post-judgment plenary hearing, which granted             plaintiff   a downward

modification of his child support and alimony obligations. We affirm.

      We take the following facts from the record. The parties were divorced

in December 2011, by way of a final judgment, which incorporated a Marital

Separation and Property Settlement Agreement (PSA), signed in September

2006, and an addendum dated the same date as the divorce. The PSA required

plaintiff to pay twenty percent of his gross income for child support, but not less

than $2500, and not more than $6000 per month. The PSA also required him to

pay defendant forty percent of his gross income as alimony, but not less than

$4000, and not more than $12,000 per month. Since the divorce, and as a result

of his earnings, plaintiff paid defendant $18,000 per month, the maximum

amount for alimony and child support, until April 2015.

      Plaintiff was self-employed with a software development company known

as "Outpost." The parties were partners in the company, wherein plaintiff held

a ninety percent interest and defendant the remaining ten percent. The parties'

ownership of Outpost continued post-judgment.

      In April 2015, Outpost's largest customer, responsible for approximately

ninety-five percent of Outpost's revenue, terminated its relationship with


                                                                           A-2439-16T4
                                        2
Outpost, and as of May 2015, Outpost had no revenue. Plaintiff immediately

contacted defendant seeking a modification of his support obligation. Plaintiff

also ceased paying defendant the maximum support amounts because of the drop

in his income.

      As a result, defendant filed a post-judgment motion to compel payment at

the maximum amount and plaintiff filed a motion to modify his obligation. The

motion judge denied defendant's motion and granted plaintiff's motion, finding

he had demonstrated a prima facie showing of changed circumstances, and

scheduled a plenary hearing, in pertinent part, to address the modification of

alimony and child support. Defendant did not appeal from the order entered by

the motion judge.

      The plenary hearing occurred over two days, before a second judge.

Plaintiff testified his income in 2014 was $425,688. He explained, before he

started Outpost, he was employed as a senior software engineer and project

manager.   Following the demise of Outpost, he testified he searched for

employment within his area of expertise and had two offers for part-time

employment. Those positions offered salaries of $96,000 and $72,000 per year,

which he planned to accept, bringing his total earnings to $168,000. Plaintiff




                                                                       A-2439-16T4
                                      3
testified the combination of the salaries from these part-time jobs would be

greater than what he could earn as a full-time employee.

       Utilizing plaintiff's credit card statements, defendant's cross-examination

attempted to prove that plaintiff's lifestyle did not suffer an adverse change in

circumstances. Specifically, defendant pointed to plaintiff's restaurant dining,

the purchase of jewelry, travel abroad, and the purchase of a Tesla vehicle as

evidence of his lifestyle. Defendant noted plaintiff had purchased a home in

Minsk, Belarus. She argued plaintiff's lifestyle was supported by an undisclosed

source of income.

       However, plaintiff rebutted those assertions. He proved the residence in

Minsk had been purchased by A.M.2 with her pre-marital funds, explained he

had used airline points for personal travel, and the jewelry purchase was a favor

for a friend who reimbursed him. The trial judge noted the evidence also

demonstrated defendant's proofs regarding the restaurant expenditures were

mathematically incorrect and her exhibits in general were incomplete.

       Defendant also challenged plaintiff's testimony regarding his employment

search. She claimed the offers he received did not "reflect his ambition" or his

skill set. Defendant argued plaintiff's circumstances and Outpost's prospects


2
    Plaintiff married A.M. in September 2013.
                                                                          A-2439-16T4
                                        4
had not permanently changed because he was likely to meet new business

partners or receive better offers. However, defendant presented no evidence to

corroborate her hypothesis, or expert testimony to explain her claims regarding

plaintiff's earning capacity.

      Conversely, plaintiff adduced objective evidence of defendant's earning

capacity. He introduced a copy of her LinkedIn profile, in which she claimed

to be a talent manager and a wardrobe stylist for a television show. Defendant's

profile also disclosed she had obtained two Associate's degrees, and could speak

English, Russian, Belarusian, intermediate French, and conversational Hebrew.

      Defendant explained her work as a wardrobe stylist and talent manager

was unpaid, and the latter position was taken only to assist her daughter who

was an actress. She claimed she was seeking employment, but could not obtain

a paying position.    She presented evidence of her search for employment,

namely, job applications to Hermes Paris, Burberry, Chanel, Time Warner,

HBO, and Gucci, for the period between October 27 and November 4, 2015.

Defendant testified she had ceased searching for employment, as of November

4, 2015, because she was focused on preparing for trial.

      The trial judge concluded plaintiff had testified credibly regarding his

income, job search, and earning capacity, and $170,000 was a reasonable


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                                       5
amount of income to impute to him based on the evidence presented. Relying

on the proofs presented regarding defendant's income, the judge concluded

"[b]ased on the wage compendium, the entry level income for a . . . wardrobe

stylist in [New York City] . . . is $43,900."

      The judge found defendant's needs for herself and the children totaled

$6908 per month. The judge ordered plaintiff to pay defendant $3500 and $1105

per month in alimony and child support, respectively. Combining defendant's

imputed income with the support, the judge concluded "pre-tax, [d]efendant

should have monthly income available to her of [$7938]." The judge noted this

calculation did not include rental income defendant had been receiving by

renting the former marital residence, which she had failed to disclose on her

Case Information Statement. This appeal followed.

                                        I.

      At the outset, we note defendant raises several arguments on appeal

regarding enforcement of the January 10, 2017 order, and the parties' motion

practice subsequent to the entry of the order on appeal. Defendant also argues

plaintiff did not establish changed circumstances to warrant a modification of

support because following entry of the January 2017 order, plaintiff's business

fortunes rebounded. She asserts this information impacts the income imputation


                                                                       A-2439-16T4
                                         6
the trial judge made to plaintiff. She argues her September 8, 2016 bankruptcy

discharge, which occurred after the conclusion of the trial testimony in February

2016, but before the issuance of the court's order in January 2017, was not

considered by the trial judge.

      We do not consider any of these arguments as they post-date the

conclusion of the trial testimony, which defendant did not seek to re-open.

"[I]ssues not raised below will ordinarily not be considered on appeal unless

they are jurisdictional in nature or substantially implicate the public interest."

N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 339 (2010) (citing

Cty. of Essex v. First Union Nat'l Bank, 186 N.J. 46, 51 (2006)); see also Neider

v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (absent plain error leading to

the possibility of an unjust result, the Appellate Division generally declines to

consider arguments not raised at trial). None of the aforementioned information

was presented to the trial judge, and is not part of the record before us.

      Instead, we address defendant's arguments that: 1) plaintiff failed to prove

changed circumstances; 2) the trial judge erred in making an income imputation;

3) the support awarded did not meet defendant and the children's needs; and 4)

child support could not be modified because the parties contracted to apply




                                                                             A-2439-16T4
                                        7
Lepis3 modifications only to alimony. To the extent we do not address other

arguments raised by defendant, it is because they lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

                                          II.

"The scope of appellate review of a trial court's fact-finding function is limited.

The general rule is that findings by the trial court are binding on appeal when

supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154

N.J. 394, 411–12 (1998) (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65

N.J. 474, 484 (1974)).      The "court must give due recognition to the wide

discretion which our law rightly affords to the trial judges," and disturb such

determinations only where the court abused its discretion. Larbig v. Larbig, 384

N.J. Super. 17, 21, 23 (App. Div. 2006) (quoting Martindell v. Martindell, 21

N.J. 341, 355 (1956)). Appellate courts reverse only if there is "'a denial of

justice' because the family court's 'conclusions are . . . "clearly mistaken" or

wide of the mark.'" Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div. 2010)

(quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).

This standard applies equally to the trial court's decisions regarding alimony and

child support. Lombardi v. Lombardi, 447 N.J. Super. 26, 33 (App. Div. 2016).


3
    Lepis v. Lepis, 83 N.J. 139 (1980).
                                                                           A-2439-16T4
                                          8
                                        A.

      We first address defendant's claims there were no changed circumstances

warranting a review and modification of alimony and child support. Defendant

argues plaintiff's expenditures after April 2015 have not reflected his claimed

change in circumstances. She asserts plaintiff has an undisclosed source of

income from which he meets his expenses.

      In support of her claims, defendant points out plaintiff continued to fly his

private airplane, even after Outpost failed. She also claims plaintiff took a trip

to Puerto Rico in July 2015, during which he rented a private airplane. She cites

a variety of trips plaintiff took as evidence that he has undisclosed income.

      These arguments are unpersuasive. A review of the record demonstrates

a portion of the flights defendant discusses in her brief took place before Outpost

failed. This had no bearing on the firm's subsequent difficulties, which caused

the motion judge to order a plenary hearing, or the trial judge's conclusion to

modify plaintiff's support obligations. Moreover, plaintiff paid the maximum

amount of child support and alimony prior to Outpost's failure.

      Regarding the flights plaintiff took after Outpost failed, plaintiff testified

he had to fly the plane while he still owned it in order to prevent it from falling

into disrepair and depreciating in value before he could sell it. Plaintiff also


                                                                            A-2439-16T4
                                         9
explained he rented a private airplane in order to maintain "proficiency" because

he had to fly the plane at least two hours every month until he could sell it. He

explained he needed to keep the plane until its annual inspection in August 2015

because he could sell it for a greater sum with it having passed inspection.

Regarding plaintiff's travel, the record demonstrates the evidence presented a t

the hearing showed the trips were either inexpensive or were paid for by either

family members or with frequent flier miles. Defendant presented no evidence

to rebut these claims.

      Defendant claims plaintiff continued to pay $11,700 per month in rent for

his apartment in Manhattan, even after he and A.M. moved to Minsk. She points

to plaintiff's testimony regarding his ownership of a Tesla automobile and argues

its $1382 monthly payment exceeded his child support obligation. Defendant

also notes the vehicle cost $700 per month to park in New York City. However,

the record demonstrates plaintiff signed a new apartment lease in August 2015

for $2500 per month and ceased residing in the more expensive apartment.

Additionally, defendant neither rebutted the fact plaintiff purchased the Tesla

before Outpost's demise, nor demonstrated how plaintiff could cease paying for

the vehicle at will. Furthermore, plaintiff testified he ceased paying to keep the




                                                                          A-2439-16T4
                                       10
vehicle in New York City as of July 2015, and the record reflects it is stored at

the parties' Princeton home.

      Defendant also asserts plaintiff's claim the home in Minsk was funded by

A.M. is false. However, the record demonstrates plaintiff presented a deed,

which showed A.M. purchased the property in November 2011, long before he

experienced a financial downturn.

      Defendant argues plaintiff founded another company in 2005, and

transferred the parties' interest in it to his parents in 2009 without defendant's

consent. She claims plaintiff operates the company and derives income from it.

At trial, defendant cross-examined plaintiff on the subject, but beyond

explaining that he founded the company and owned it until 2008, the record

reflects no testimony or evidence to support defendant's claim plaintiff owned

or derived income from the company after Outpost experienced a downturn.

      Defendant's arguments on appeal do not persuade us that the judge's

decision to modify plaintiff's support obligations due to a change in

circumstances was an abuse of discretion. There is ample evidence in the record

to support the trial judge's conclusions.




                                                                          A-2439-16T4
                                       11
                                        B.

      We next address defendant's argument regarding the imputation of income

to her.   Defendant argues the imputation to her was "unrealistically high"

because her income from earnings in addition to the modified alimony and child

support figures do not meet her needs. 4

      "'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.'" Elrom v. Elrom, 439 N.J. Super. 424,

434 (App. Div. 2015) (citations omitted). In Elrom, we noted the authority to

impute income

            is incorporated in the New Jersey Child Support
            Guidelines (Guidelines).     See R. 5:6A (adopting
            Guidelines set forth in Appendix IX-A to the Court
            Rules). The Guidelines state:

            [i]f the court finds that either parent is, without just
            cause, voluntarily underemployed or unemployed, it
            shall impute income to that parent according to the
            following priorities:

                   a. impute income based on potential
                   employment and earning capacity using the

4
  We do not address the aspect of defendant's challenge to the income imputation
wherein she relies upon her actual income from her employment beginning in
February 2017, which she claims was "significantly less" than the one imputed
to her, because it was not presented to the trial judge and is not a part of the
record before us.
                                                                            A-2439-16T4
                                        12
                     parent's work history, occupational
                     qualifications, educational background,
                     and prevailing job opportunities in the
                     region. The court may impute income
                     based on the parent's former income at that
                     person's usual or former occupation or the
                     average earnings for that occupation as
                     reported by the New Jersey Department of
                     Labor (NJDOL);

                     b. if potential earnings cannot be
                     determined, impute income based on the
                     parent's most recent wage or benefit
                     record[.]

             [Elrom, 439 N.J. Super. at 435 (alteration in original)
             (quoting Child Support Guidelines, Pressler &
             Verniero, Current N.J. Court Rules, cmt. 12 on
             Appendix IX-A to R. 5:6A at 2635 (2015)).]

"These legal precepts equally apply when establishing a party's obligation to pay

alimony." Id. at 435.

        Here, pursuant to the wage compendium, the trial judge noted the entry

level income for a wardrobe stylist was $43,900 per year. The judge then

considered the parties' testimony for and against an imputation, defendant's

LinkedIn profile, and what the judge noted was defendant's "claim of having

'vast   experience    and   knowledge     of   designer   clothing,   fabrics,   and

accessories[.]'"   The judge concluded "the request of [p]laintiff to impute

[d]efendant at an annual income of $40,000 is reasonable."


                                                                            A-2439-16T4
                                        13
      We are satisfied the judge applied the evidence to the imputation rubric

we have recited. The imputation determination was supported by the competent

evidence and was not an abuse of discretion. Elrom, 439 N.J. Super. at 434.

                                        C.

      Defendant challenges the trial judge's decision on grounds the alimony

and child support awards do not meet her and children's needs. As we noted,

the judge calculated defendant and the children's monthly needs to be $6908,

and found her monthly income would be $7938. Other than to disagree with the

result, defendant has not provided us with a basis to conclude her needs and

those of the children were not met.          This does not establish an abuse of

discretion.

                                        D.

      Finally, defendant argues the child support was not subject to modification

because the PSA did not explicitly permit it. The Supreme Court has long stated:

"[t]the equitable authority of a court to modify support obligations in response

to changed circumstances . . . cannot be restricted." Lepis, 83 N.J. at 149 (citing

Smith v. Smith, 72 N.J. 350, 350 (1977)); see also N.J.S.A. 2A:34-23.

      Here, the PSA expressly states plaintiff's child support obligation is

"[s]ubject to the power of the court to modify these terms." Therefore, the trial


                                                                           A-2439-16T4
                                       14
judge could modify plaintiff's support obligations. Even where there is express

language barring a modification based on a change in circumstances, the court

is not without the ability to modify an agreement. See Morris v. Morris, 263

N.J. Super. 237, 245-46 (App. Div. 1993).

      Affirmed.




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                                     15
