BRYANT T. READER, JR. v. ROBIN SUE READER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4988-06T34988-06T3

BRYANT T. READER, JR.,

Plaintiff-Appellant,

vs.

ROBIN SUE READER,

Defendant-Respondent.

__________________________________

 

Argued: January 30, 2008 - Decided:

Before Judges Cuff and Lihotz.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Camden County, Docket No. FM-04-1122-06.

Bryant T. Reader, Jr., argued the cause pro se.

Richard M. Chiumento argued the cause for respondent (South Jersey Legal Services, Inc., attorneys; Mr. Chiumento, of counsel and on the brief).

PER CURIAM

Following a trial, the twenty-six-year marriage between the parties was dissolved. Plaintiff appeals from two provisions of the Judgment of Divorce: the amount of alimony and denial of plaintiff's application for counsel fees. We affirm.

Plaintiff Bryant T. Reader, Jr., and defendant Robin Sue Reader married in 1980. Four children were born of the marriage, only one of whom was unemancipated at the time plaintiff filed his complaint for divorce. Once the marital residence was sold, plaintiff had custody of the unemancipated child.

Early in the marriage, defendant developed lupus. In 2002, defendant worked on a full-time basis and earned between $400 and $500 weekly. In 2002, defendant suffered a stroke. In 2002, defendant applied for disability benefits with the Social Security Administration. She testified at trial, and plaintiff did not disagree, that plaintiff helped her prepare the paperwork. On December 17, 2002, defendant was awarded Social Security Disability benefits (SSD). In 2003, defendant suffered a second stroke. At the time of trial, she received $712 monthly and an additional $170 monthly for the parties' unemancipated child.

Prior to trial, the parties resolved many issues and substantially narrowed the issues that required resolution at trial. The contested issues included alimony, the allocation between the parties of the proceeds of the marital home, plaintiff's request that the trial judge consider that he bore the entire roof expenses pendente lite, and the allocation of marital debt. Ultimately, the trial judge determined that plaintiff should receive 60% and defendant should receive 40% of the marital home. The judge similarly allocated the marital debt.

A central issue at trial was the amount of alimony plaintiff should pay to defendant. Plaintiff sought to impute income to defendant in order to eliminate or reduce the amount of alimony payable to defendant, and sought information prior to trial regarding her medical condition. Plaintiff received current medical records but never received the documents supporting defendant's SSD application. At trial, defendant submitted the December 2002 SSD determination from the Social Security Administration in support of her position that she was unable to work and earn income.

Judge Fox found that defendant is disabled, no income should be imputed to her, and ordered plaintiff to pay $350 each week to defendant as alimony. The judge noted that an award of disability creates a presumption that the SSD recipient is disabled and the party who asserts that the recipient is able to work bears the burden to overcome the presumption. Plaintiff insists there is insufficient evidence in the record to support the decision that defendant is disabled.

Qualification for SSD is governed by federal law. The standard is high. A person is entitled to SSD "only if [her] physical or mental impairment or impairments are of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work that exists in the natural economy." 42 U.S.C.A. 423(d)(2)(A). A SSD recipient is also subject to periodic review of their disability status at which time the recipient must continue to satisfy the statutory standard. 42 U.S.C.A. 421(i).

Due to this high standard, a person who produces evidence to support a finding of disability by the Social Security Administration will be presumed disabled and unable to earn income through employment. Golian v. Golian, 344 N.J. Super. 337, 342-43 (App. Div. 2001). Moreover, once a party submits proof of a disability adjudication, the burden shifts to the other party to refute the presumption. Id. at 343.

Here, defendant submitted proof of her declaration of disability and her continued receipt of SSD benefits. Plaintiff did not refute that defendant was diagnosed with lupus when she was twenty-one, that she suffered two strokes in 2002 and 2003, and that he assisted defendant with the SSD application process in 2002. Defendant also provided to plaintiff current medical information to establish that she remained disabled. In short, defendant provided sufficient evidence to support her disabled status and to invoke the presumption associated with the disability declaration and plaintiff provided no evidence to overcome the presumption. Accordingly, there was ample evidential support for the trial judge to find that defendant did not have the ability to earn income and to determine that no income should be imputed to her.

Plaintiff also argues that Judge Fox erred in failing to order defendant to contribute to his attorneys' fees. We disagree.

An allowance of counsel fees and costs in family actions is expressly allowed by Rule 4:42-9(a)(1). The decision to award fees, however, is vested in the discretion of the trial judge. Williams v. Williams, 59 N.J. 229, 233 (1971); Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). The judicial discretion is, in turn, guided by factors outlined in statute, court rules, and case law. Williams, supra, 59 N.J. at 233; N.J.S.A. 2A:34-23; R. 4:42-9(a)(1); R. 5:5:3-5(c).

Thus, when a party applies for an award of counsel fees, the trial judge must consider the factors identified by court rules, the financial circumstances of the parties, and the good or bad faith of the parties. N.J.S.A. 2A:34-23. The trial judge must also assess the ability of the parties to pay their own fees or to contribute to the fees of the other party, the extent of the fees incurred by the parties, any fees previously awarded, the amount of fees previously paid by each party, the results obtained, the degree to which fees were incurred to enforce prior orders of the court, and any other factor that may influence a fair resolution of the request. R. 5:3-5(c); R. 4:42-9(a)(1).

Here, Judge Fox identified and applied the appropriate factors. She found that defendant had no ability to pay counsel fees to plaintiff. In fact, she found that any allowance would "negatively impact the defendant." Furthermore, the trial judge found that neither party acted in bad faith. Each finding is well-supported by the record. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). There is, therefore, no basis to disturb the ruling denying plaintiff's application for attorneys' fees.

 
Affirmed.

At oral argument, plaintiff contended that the weekly alimony obligation is burdensome due to events that occurred following the entry of the judgment of divorce. This appeal is confined to the record adduced at trial and the terms of the judgment of divorce. Plaintiff may seek relief due to changed circumstances from the alimony obligation through a motion filed in the trial court.

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A-4988-06T3

February 25, 2008