A recent New Jersey Appellate Division decision in Fitzgerald v. Duff provides a potent reminder that if you are involved in litigation, anything you do or say online might be used against you in court.
The Fitzgerald proceedings concerned a father’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. In opposition, 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. To support that position, the custodian submitted copies of defendant’s web site, Facebook photographs, and various social media comments evincing his success. The website identified multiple locations at which the tattoo parlor operated and plans for its imminent expansion, featured three staff tattoo artists, and advertised that defendant provided tattoo services for professional football players. The Facebook photographs depicted defendant throwing $100 bills, his speed boat, a 2011 Chevrolet Camaro (plaintiff also maintained defendant owned a Lincoln Navigator), his elaborate tropical wedding, and accompanying diamond engagement and wedding bands. Finally, 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, however, the Fitzgerald Appellate Court also noted many inconsistencies with the father’s contentions, and suggested heavy reliance on the electronic and social media evidence may be warranted.
This case serves as an important reminder that one must be mindful of what one posts online, especially where the information may convey an erroneous or misleading portrait about one’s lifestyle. Although the father submitted tax returns and other income information, the Trial Court heavily relied on electronic evidence including Facebook and Myspace postings to discern the father’s “true” income for purposes of calculating child support obligations. In today’s age, clearly anything one says or does on the Internet can and will be used against them.
Christian A. Stueben is an Associate in the Gibbons Business & Commercial Litigation Department.