September 8, 2010
ANNEMARIE BUSSEY F/K/A KEENAN, PLAINTIFF-RESPONDENT,
MICHAEL J. KEENAN, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 22, 2010
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 equal to a capacity equal to his prior employment. He simply has presented no evidence on that issue.
Finally, in his findings, Judge Farber concluded:
When he filed the current motion that led to the Court's decision to modify support, Mr. Keenan provided a Case Information Statement that indicated his gross income for 2008 was $8,174.65. He had attached to the CIS his W-2s from 2008, which, indeed, do total that amount. There was never anything provided by Mr. Keenan except self-serving statements as to his ability to work. He contends that he is no longer able to earn the income he earned in 2008 because of medical reasons, but there is no documentary support for that position. Social Security Disability permits a recipient to earn and receive income up to specified levels before there are any corresponding reductions in the Social Security Disability payments. Mr. Keenan's 2008 income falls within those limits, and the Court imputes that amount to him for the periods in question in doing the recalculation.
Commencing with November 1, 2007 and until November of 2008 Mr. Keenan was receiving $1,273 a month from Social Security.
The Court used Mr. Keenan's Social Security income as well as the number previously indicated being imputed to Mr. Keenan ($8,174.65)[.]
On appeal, defendant relies on our decision in Golian v. Golian, 344 N.J. Super. 337 (App. Div. 2001) and Wasserman v. Parciasepe, 377 N.J. Super. 191 (Ch. Div. 2004), for the proposition that a finding of disability by the Social Security Administration creates a rebuttable presumption of disability for purposes of child support and shifts the burden to the opponent to refute the presumption. Golian, supra, 344 N.J. Super. at 342-43. Ultimately, however, the burden of persuasion remains with the proponent. Wasserman, supra, 377 N.J. Super. at 197.
We have no disagreement with the proposition of law advanced by defendant. The difficulty in accepting his argument is that the limited record before us indicates that defendant had some form of reportable income for 2008. It is unclear whether this was income derived from sources other than Social Security payments, although the judge's finding that the income was reflected on defendant's W-2 forms from that year suggests that there were other employment sources. That is our reading of the record. That being the case, there were additional proofs before the judge that defendant was employable and capable of earning income in addition to his Social Security payments. Defendant did not meet his burden of persuasion.
The receipt of SSD payments does not preclude a recipient from earning additional income. See 20 C.F.R. § 404.1574(b)(3)(i) (2010) ("If your average monthly earnings are equal to or less than the amount(s) determined under paragraph (b)(2) . . . for the year(s) in which you work [as an employee], we will generally consider that the earnings from your work . . . will show that you have not engaged in substantial gainful activity [(SGA)]."); 20 C.F.R. § 404.1575(a)(2) (delineating three tests to determine whether a self-employed individual engaged in SGA); 20 C.F.R. § 404.1576 (subtracting the "reasonable costs . . . of certain items and services" in the calculation of whether a certain individual has engaged in SGA). There are limits to such income. See 20 C.F.R. § 404.1571 ("If you are able to engage in [SGA], we will find that you are not disabled. . . . Even if the work you have done was not [SGA], it may show that you are able to do more work than you actually did."); see also 20 C.F.R. § 404.1574 and § 404.1575 (delineating criteria to determine whether an individual engaged in [SGA]). There is no claim here that the funds earned in 2008 resulted in a finding of "substantial gainful activity" sufficient to preclude the receipt of SSD payments. Since defendant had been employed while receiving SSD benefits, he was compelled to explain why he could not continue that employment even with his benefits. He failed to do so.
We find no error in the judge's findings as to imputing income to defendant. Although the judge did not perform the type of analysis described in Wasserman, we conclude that his finding is supported by the limited record before us.*fn1