Not Adjusting Income Calculation to Take into Account Commuting Expenses and Alimnoy

Smith v. Smith

Docket No. A-4226-18

Decided November 29, 2021

Submitted by New Jersey Divorce Lawyer, Jeffrey Hark.

In a recent unpublished decision the Appellate Division affirmed a trial court’s second amended final judgment of divorce on the issue of alimony for not adjusting income calculation to take into account commuting expenses.

In Smith, the parties were married on September 19, 1997, and have three children born in 2000, 2002 and 2005, respectively. Plaintiff filed for divorce on August 13, 2015. Defendant filed an answer and counterclaim for divorce. They agreed to joint legal and residential custody of the children in a Custody and Parenting Time Agreement (Parenting Agreement). Parenting time was equally divided, however, the oldest child resided with defendant from September 2015 to April 2018.

A pendente lite support order was entered on November 3, 2017, that required plaintiff to pay defendant $500 per month in non-taxable support. He was ordered to continue paying all Schedule A and B expenses, child support “in the same manner that he has been paying,” “all health care, unreimbursed medical expenses, all extracurricular activities, clothing, . . . for the parties’ children,” and insurance expenses.

The divorce case was tried over a period of ten days in April through July 2018. The parties stipulated to the appraised values of the marital residence and to plaintiff’s residence on Sussex Turnpike, agreeing to value them at $520,000 and $350,000, respectively. The trial court entered a Final Judgment of Divorce (FJOD) on October 1, 2018, supported by a written statement of reasons.

Defendant filed a motion for a new trial and for enforcement. Plaintiff filed a cross-motion in opposition and to clarify certain issues. On March 29, 2019, the trial court entered an Amended Final Judgment of Divorce (AFJOD) supported by a written statement of reasons, which made significant changes in the FJOD regarding alimony, alimony arrears and equitable distribution. The court found “there was clearly and convincingly a miscarriage of justice on certain issues previously decided by [the] [c]ourt.”

Counsel for the parties and the court conducted a phone conference about issues they raised regarding the AFJOD. On May 9, 2019, the trial court issued the SAFJOD, which again made changes, and issued another written statement of reasons.

Plaintiff’s annual gross income was $200,000. When the trial court calculated alimony under the FJOD, it deducted $12,000 for estimated commuting expenses even though plaintiff’s “employer provide[d] for some travel expenses,” and the commuting expenses themselves were an estimate. The court then added $12,000 in income from an investment property on “Carleton Avenue,” increasing plaintiff’s income figure to $200,000, which was the figure used to calculate alimony.

Under the AFJOD, the trial court determined it erred in calculating plaintiff’s income. It found there was no “reliable” evidence of the $12,000 in commuting expenses it had deducted and would not “speculate” about this. Therefore, it increased plaintiff’s income to $212,000,  using that figure for alimony, child support and unreimbursed medical expenses.


Plaintiff appealed, and the Appellate Division affirmed, finding the trial court did not abuse its discretion by not deducting commuting expenses from plaintiff’s income. Plaintiff cited no authority that requires the trial court to make this deduction from his income. The record did not support plaintiff’s claim he was incurring expenses of $12,000 annually. His estimated expenses were slightly more than half this amount. The court also found that plaintiff’s employer paid for some of his travel expenses.

This case is important to understand alimony is primarily calculated through the difference in income between the parties. Of course, there are other factors the court must consider but this is usually the most important.  Commuting expenses, without proof, cannot be used to deduct from income for alimony purposes.

If you have any questions about child support, alimony, student loans, divorce, counsel fees or any other issues, contact the experienced attorneys at Hark & Hark today.

At Hark & Hark, we help clients with domestic violence restraining orders, prenups, divorce, custody, domestic violence, child support, alimony issues, parenting time and more.

We represent clients for any case in any county in New Jersey including Atlantic, Burlington, Camden, Cape May, Cumberland, Essex, Gloucester, Mercer, Ocean, and Salem counties. We represent clients in all towns in New Jersey, including Bass River, Beverly, Bordentown City, Bordentown Township, Burlington City, Burlington Township, Chesterfield, Cinnaminson, Delanco, Delran, Eastampton, Edgewater Park, Evesham, Fieldsboro, Florence, Hainesport, Lumberton, Mansfield, Maple Shade, Medford Lakes, Medford Township, Moorestown, Mount Holly, Mount Laurel, New Hanover, North Hanover, Palmyra, Pemberton Borough, Pemberton Township, Riverside, Riverton, Shamong, Southampton, Springfield, Tabernacle, Washington Township, Westampton, Willingboro, Woodland Township, and Wrightstown.

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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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