ANNEMARIE BUSSEY v. MICHAEL J. KEENAN

NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-6344-08T3


ANNEMARIE BUSSEY f/k/a
KEENAN,

            Plaintiff-Respondent,

    v.

MICHAEL J. KEENAN,

            Defendant-Appellant.

________________________________________________________________

            Submitted June 22, 2010 - Decided September 8, 2010

            Before Judges Carchman and Parrillo.

            On appeal from the Superior Court of New
            Jersey, Chancery Division, Family Part,
            Sussex County, Docket No. FM-19-248-06.

            New Jersey Legal Services, attorneys for
            appellant (Heidi M. Struse, on the brief).

            Annemarie Bussey, respondent pro se, has
            not filed a brief.

PER CURIAM

    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:




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     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




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                     3

    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.




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                          4

               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




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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

                                      See 20 C.F.R. §
from earning additional income.

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

                                                        See 20
engaged in SGA).    There are limits to such income.

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




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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.1

     Affirmed.




1
   Subsequent to the submission of this appeal to this panel,
defendant submitted a writing to the court, which complained of
the participation of a judge on the panel. The objection was
based on defendant's prior submissions to the Administrative
Office of the Courts of various complaints regarding the conduct
of the judges handling matters involving defendant. Although a
member of the panel, in his prior capacity as Acting
Administrative Director of the Courts, was the addressee of the
submissions from defendant, upon receipt, the submissions were
forwarded to appropriate personnel and agencies for review and
action. We consider defendant's writing to the panel as an
application for recusal pursuant to R. 1:12-1(f). We conclude
that the application is without merit, and it is denied.




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