Ride the Lightning

Social Media Postings Suggest Higher Income in Child Support Case

August 27, 2013

If you're trying to hide your income, don't put evidence of your professional success and lavish life style on social media – or your website. That's a lesson that defendant Jason Duff learned the hard way. A Gibbons law firm E-Discovery News Alert highlights a recent New Jersey Appellate Division opinion, Fitzgerald v. Duff. The proceedings involved Duff’s attempt to modify a previously-entered child support order by submitting his 2011 income tax return, which reported a taxable income of $21,000 from a cash tattoo business.

The child’s legal custodian filed a certification opposing modification of the support order, suggesting that much of the defendant’s income was unreported and that a much higher child support obligation was warranted. The custodian submitted copies of defendant’s web site, Facebook photographs, and various social media comments demonstrating his financial success.

The website indicated multiple locations of the tattoo parlor and plans for its imminent expansion. It featured three staff tattoo artists and advertised that defendant provided tattoo services for professional football players. Facebook photographs showed the defendant throwing $100 bills, his speed boat, a 2011 Chevrolet Camaro, his elaborate tropical wedding, and accompanying diamond engagement ring and wedding bands. Comments from the father’s Myspace page included statements that in four hours he earns $250, his schedule had “been packed so [he could] pay for this wedding,” and that he purchased television advertising spots.

Based on this evidence, the Trial Court “imputed” to the father an annual income of at least $100,000 and modified upward his child support obligations from $67 to $264 per week. In his motion for reconsideration, the father argued the Court lacked any competent admissible evidence to establish a $100,000 income. The father also proffered additional tax returns to support his contentions, certified that he sold his boat for $1,700, claimed the Camaro was financed, and alleged his family paid for his honeymoon. The trial judge rejected the motion, stating he was “just not convinced that the defendant’s lifestyle and finances are what he purports them to be.”

On appeal, the Fitzgerald court concluded the trial judge’s decision lacked the fundamental fact-finding required by Rule 1:7-4 and remanded the case for the trial judge to clearly identify what evidence was accepted and rejected, and why. Importantly, the Fitzgerald Appellate Court also noted many inconsistencies with the father’s contentions, and suggested heavy reliance on the electronic and social media evidence might be warranted.

Mr. Duff will get another whack at proving his income, but my guess is that the trial judge is pretty well convinced that the defendant is hiding money (maybe from the IRS as well) and will require clear and convincing evidence to back up his assertions.

One of our most popular presentations is "Perry Mason Goes Digital: Electronic Evidence in Family Law." I am always delighted to see cases like this one make the news – there are so many that refreshing our seminar content with recent news is a veritable breeze.