June 27, 2011
JACK KATZ, PLAINTIFF-APPELLANT,
ELIZABETH KATZ, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-730-09B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 2, 2011 - Decided Before Judges Fisher and Fasciale.
Plaintiff-husband appeals from that part of an August 3, 2010 Dual Judgment of Divorce (JOD) that awards pro se defendant-wife limited duration alimony. The trial judge did not apply a rebuttable presumption that plaintiff was disabled, and failed to find that plaintiff remained voluntarily unemployed or underemployed. We reverse and remand.
The parties were married on June 29, 1996, and had no children together. Plaintiff had worked as an auto mechanic during the marriage, but in 2006 he broke his neck in an accident. Thereafter, the Social Security Administration (SSA) determined that plaintiff was totally disabled. At the time of the trial, plaintiff had been receiving social security disability (SSD) payments in the amount of $1,500 per month and was unemployed. There was no testimony concerning defendant's employment history or ability to work, but the record revealed that she was also unemployed at the time of trial and had been receiving approximately $650 per month in SSD payments.
After a nine-day trial, the judge determined that plaintiff "has a marketable skill as a mechanic and has a demonstrated capability to earn at least $60,000." At the time of the JOD, plaintiff was forty-nine years old and defendant was fifty years old. The judge was unable to find that defendant had the skills to find employment. He awarded to defendant limited duration alimony in the amount of $250 per week for six years, retroactive to May 1, 2007.
On appeal, plaintiff argues that the trial judge erred by awarding limited duration alimony because: (1) there was no specific finding that plaintiff was voluntarily underemployed or unemployed; (2) plaintiff is permanently disabled and unable to pay; (3) defendant cohabitated with plaintiff's brother; and (4) the amount of arrears was miscalculated.
Concerning plaintiff's contentions that defendant cohabitated with his brother, and that the judge miscalculated the arrears, we find insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Instead, we focus on whether the judge erred by awarding alimony.
A Family Part judge has broad, but not unlimited, discretion in awarding alimony. The judge's discretion must be channeled to take into account the factors set forth in N.J.S.A. 2A:34-23b and decisional law defining the purposes of alimony. Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd as modified, 183 N.J. 290 (2005). An alimony determination will not be disturbed absent an abuse of discretion. Ibid.
Plaintiff contends that he is unable to pay alimony because he is disabled. Ordinarily, "[a] party asserting inability to work due to disability bears the burden of proving the disability." Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001). Here, however, plaintiff had been adjudicated as disabled by the SSA. "[T]he SSA adjudication of disability constitutes a prima facie showing that plaintiff is disabled, and therefore unable to be gainfully employed, and the burden shifts to defendant to refute that presumption." Id. at 342-43. In order to overcome the presumption, an opponent -- here, defendant -- must offer clear and convincing evidence to refute plaintiff's inability to be gainfully employed as a result of his disability. Wasserman v. Parciasepe, 377 N.J. Super. 191, 200 (Ch. Div. 2004). Although the burden of going forward shifts between the parties, the ultimate burden of persuasion remains on the plaintiff to prove he is unemployable. Id. at 197 (citing N.J.R.E. 301).
Plaintiff made a prima facie showing that he was disabled and unemployable by submitting his adjudication by the SSA, but the judge failed to apply the presumption and the correct burden of proof. Instead, the judge stated that:
As for plaintiff (who is 49 years of age), while it was agreed by both sides that he had suffered a broken neck in a fall in 2006, there was no objective evidence presented as to any physical or mental disabilities which would impair his ability to work as an auto mechanic, or in any other capacity. To the contrary, [d]efendant offered into evidence without objection a photograph of [p]laintiff taken on April 17, 2008 working under the hood of a truck (D-7). Plaintiff previously certified in [c]court documents that his "hands are numb and I drop tools," and that his "cognitive thinking has become impaired due to a brain injury from the fall" ([p]laintiff 12/2/08 Cert., P7), but no competent, objective neurological evidence was presented in support of these assertions. Notwithstanding [p]laintiff's professed medical disabilities, he nonetheless maintained, as of December 2008, that he was "looking for work since July of 2008," (Id.) but was thwarted in that effort by a combination of his alleged disabilities and a bad economy.
No evidence was presented to contest the reasonableness of the SSA determination aside from a photograph depicting plaintiff working under the hood of his truck -- which he explained at trial was a job that took him weeks to complete that should have required only an hour or so. Although the judge may have been persuaded that the photograph overcame the presumption of disability, he did not make that finding.
Moreover, the judge did not find that plaintiff remained voluntarily unemployed or underemployed before he imputed income. In computing alimony, a task particularly within the Family Part's realm of expertise, "[i]ncome may be imputed to a party who is voluntarily unemployed or underemployed." Golian, supra, 344 N.J. Super. at 341. "Imputation of income is a discretionary matter not capable of precise or exact determination but rather requiring a trial judge to realistically appraise capacity to earn and job availability." Storey v. Storey, 373 N.J. Super. 464, 474 (App. Div. 2004). In deciding if income should be imputed, the judge must determine "whether the [spouse] has just cause" for remaining voluntarily unemployed or underemployed. Caplan v. Caplan, 182 N.J. 250, 268 (2005). "Such a finding is requisite, before considering imputation of income." Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998). That was not done here.
We remand for the trial judge to consider, consistent with this opinion, additional evidence which defendant may present to overcome the presumption that plaintiff is disabled and therefore unable to be gainfully employed. Plaintiff may present rebuttal evidence. "Such evidence may consist of lay testimony, expert testimony or medical records, consistent with the Rules of Evidence, as the trial court deems appropriate." Golian, supra, 344 N.J. Super. at 343. If the judge determines that plaintiff is employable, then we direct the judge to address, consistent with this opinion, whether plaintiff remained voluntarily unemployed or underemployed before an imputation of income.
Reversed and remanded. We do not retain jurisdiction.
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