On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-248-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Parrillo.
Defendant Michael J. Keenan appeals from a May 28, 2009 order of the Family Part, as supplemented by a statement of reasons of August 6, 2009, imputing income to defendant at the same time that he was receiving Social Security Disability (SSD) benefits. The narrow issue presented on appeal is whether his receipt of such benefits was a prima facie proof of his inability to work and whether the burden of demonstrating such inability shifted to his former wife, plaintiff Annemarie Bussey. The motion judge imputed income. We conclude that the judge did not err and affirm.
We briefly set forth the relevant facts as related in the motion judge's findings:
The parties tried the case before Judge Hansbury, which resulted [in] a January 30, 2008 Final Judgment of Divorce. That judgment ordered that defendant pay child support of $111 per week for the period leading up to May 1, 2007 and then again after November 1, 2007 with the caveat that if "his social security benefits have been continued after November 1, 2007, defendant may, within thirty (30) days file a motion to review the child support for the period commencing November 1, 2007 on that basis."
The Judgment of Divorce further provided that defendant's obligation would be $47 per week for the period between May 1, 2007 and November 1, 2007. That provision was later modified by an amendment to the Final Judgment of Divorce dated February 4, 2008, which changed the $47 to $37, the actual figure as calculated and attached in the Child Support Guidelines attached to the Judgment of Divorce (i.e., the $47 figure was the adjusted child support obligation from line 23 of the guideline and not the final child support order on line 26).
Relevant to the issue before us on appeal, the judge continued:
In the Statement of Reasons accompanying the Judgment of Divorce, Judge Hansbury noted that defendant testified to substantial work efforts "after receiving the 100% disability determination." He was employed as a salesman in the automobile industry, at times working 70-80 hours per week; had attained training as a massage therapist and performed those services in "recent years" leading up to the Judgment of Divorce; and had worked in an administrative capacity for the Hampton Inn. At the time Judge Hansbury entered the Judgment of Divorce, he wrote that the last employment of the defendant was in September of 2005. With regard to that issue, Judge Hansbury concluded:
Defendant has, however, failed to prove by a preponderance of the evidence that prior to May of 2007, he was disabled and incapable of working. The Workers' Compensation finding in the lat 1980s and 1990s is irrelevant to this topic, as he demonstrated substantial work efforts thereafter. Defendant provided no clear testimony as to the basis of his leaving several jobs. No medical evidence was presented to support his disability.
Judge Hansbury then concluded that the temporary disability had terminated on November 1, 2007 and child support would then be restored to its higher level based upon income to the defendant. However, as noted previously, the trial judge did allow Mr. Keenan to file a motion within 30 days seeking review of child support from the November 1, 2007 date "in the event that social security disability subsequent to that date has been awarded." Judge Hansbury then wrote on page 8 of his Statement of Reasons:
It should be noted that defendant has failed to provide any evidence as to income from prior employment, and, as previously stated, he has not met his burden of proof that the reasons for the employment were not of his own doing or choice. In the event the disability did not extend beyond November 1, 2007, the Court finds no basis for the defendant's position that he is unable to be employed ...