On appeal from Superior Court of New Jersey, Chancery Division, Family Part, FM-107-99.
Before Judges Conley, Lefelt and Lisa.
The opinion of the court was delivered by: Lisa, J.A.D.
As amended December 5, 2001.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2001
Plaintiff, Donna Golian, appeals from the portions of a Final Judgment of Divorce pertaining to certain financial matters, which were predicated on imputation of income to her. In particular, she seeks recalculation and redetermination of permanent alimony, equitable distribution of property and counsel fees. Plaintiff has been receiving disability benefits from the Social Security Administration (SSA) effective June 1, 1995. While the trial judge acknowledged plaintiff's SSA disability status, she determined that plaintiff had the burden of proving her inability to work through medical evidence, and since plaintiff presented no such evidence she failed to meet her burden. Plaintiff argues her SSA disability status should result in a presumption of inability to work and the burden should be on defendant to rebut that presumption before income can be imputed to her. We agree and reverse and remand for further proceedings.
The parties married in 1982 and separated in August 1998. They had no children. After a four day trial, they were divorced by Final Judgment entered February 29, 2000. Plaintiff was forty- years-old and defendant was forty-one-years-old. Both are high school graduates. Plaintiff had one year of college and training to sell insurance. Defendant had two years of college. During the marriage, plaintiff held an assortment of jobs. In the early to mid 1980's, she worked part time in telecommunications, then sold insurance in 1983-84, then obtained a full-time job with Allnet in 1986, earning approximately $20,000 per year. Apparently as a result of injuries received in several accidents she stopped working in approximately 1988. She worked part time as a security guard in 1993-94, earning minimum wage.
Effective June 1, 1995, plaintiff was determined by the SSA to be disabled. At the time of trial, plaintiff was receiving a monthly disability benefit of $585. At trial plaintiff produced in evidence a "Report of Confidential Social Security Benefit Information" issued by the SSA on March 24, 1999, setting forth the amount of her benefits and stating "Our records show that you became disabled 6/1/95 based on a neurological problem." Defendant does not dispute plaintiff's SSA disability status. Indeed, he assisted her in applying for disability benefits and transported her to required conferences and hearings. While the parties lived together, they used the monthly benefits for joint obligations.
Plaintiff testified to her numerous physical, emotional and psychological impairments, including back pain, leg pain and auditory hallucinations. She described her mental health treatment, including twice-a-week visits to the psychologist to which defendant took her for two years. She had been hospitalized twenty-one times during the marriage, including psychiatric confinements. She explained why, in her estimation, she cannot work:
Due to the conditions I have, it's impossible to do the simplest of tasks, and be specific in what you need to do. I cannot follow through. I don't know what my day is gonna bring. I take medication. I -- it knocks me out. I have the pain. I need the rest. I have the auditorial hallucinations, . . ."
Medical records submitted during the course of the litigation (not at trial) indicated plaintiff's maladies included cervical herniated pulposus with radiculopathy, bilateral temporomandibular joint dysfunction, fibromyalgia, multifocal polyneuropathy to the lower extremities, and major depression with psychotic features (i.e. auditory hallucinations with paranoia).
Defendant has no apparent health problems, and he has been gainfully employed throughout the marriage. At the time of trial, he was earning $53,000 annually. At trial, defendant took the position that plaintiff was capable of working. He claimed that during 1997-98 she was caring for her parents on a full time basis, for which her brother was paying her $200 per week, which increased at some point to $325 per week. Plaintiff denied this. She stated she visited her parents regularly and her brother was providing money as a loan to her and defendant (a dispute that was being litigated in a Law Division action). She denied, however, that she was "working" or being compensated. The trial judge made no express finding on this disputed factual issue.
The trial judge considered the SSA disability determination to be evidential, but not binding nor a basis for a presumption that plaintiff was unable to work. Considering all of the evidence, the judge stated "I am not making a finding as to Mrs. Golian's disability, except to say that the proofs have not been placed in the record that would permit me to find that she is disabled." After commenting "Now, if Mrs. Golian is to stay on disability, and this Court can't make any finding that that's going to happen, because there isn't any proof of a disability here," the judge found:
But this – this Court finds that she does have the capacity, based on what the Court saw and the record before her, to contribute to her own support in the amount of approximately $15,000 a year, which is $15,600 – it's $300 a week. She has earned up to $20,000 a year in sales – telephones sales, and she said when she closed sales, she always ...