D.A.L. v. W.J.L.

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1103-16T2

D.A.L.,

        Plaintiff-Appellant,

v.

W.J.L.,

     Defendant-Respondent.
__________________________________

              Argued April 24, 2018 – Decided May 3, 2018

              Before Judge Reisner, Hoffman and Gilson.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Morris County,
              Docket No. FM-14-0316-12.

              Michael Patrick Carroll argued the cause for
              appellant (D.A.L., on the pro se brief).

              Elizabeth   Szabo  argued   the   cause  for
              respondent (Legal Services of Northwest
              Jersey, Inc., attorneys; Elizabeth Szabo, on
              the brief).

PER CURIAM

        In   this   dissolution     matter,    plaintiff     appeals    from       the

judgment of divorce (JOD) entered by the Family Part on February
29, 2016, and an October 24, 2016 order denying her motion for

reconsideration.     We affirm.

                                            I

       Plaintiff   and    defendant     married       in     2001,   and    have   two

children, a daughter born in 2002, and a son born in 2004.

Plaintiff holds a Bachelor of Science degree in engineering, and

worked as an engineer throughout the marriage.                       At the time of

trial, she earned $129,000 annually.

       A high-school graduate, defendant opened his own construction

firm in 1996, and remained self-employed as a carpenter throughout

the    marriage.     In     2002,    defendant       contracted      Lyme   disease.

Subsequently, he filed a claim for disability benefits with the

Social Security Administration (SSA), and began receiving benefits

in    2009,   retroactive    to     2007.       In   2014,    the    SSA   determined

defendant remained disabled.           In August 2015, defendant underwent

cardiac surgery for a genetic heart condition.                 Defendant receives

$1250 per month in disability benefits.                Plaintiff, on behalf of

her children, receives $320 per month per child attributable to

defendant's disability.

       In the summer of 2007, plaintiff filed a divorce complaint.

That July, defendant obtained a temporary restraining order (TRO)

against plaintiff; however, following a trial, the court vacated



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the   TRO,    finding   defendant's   domestic   violence   complaint

"frivolous."

      Before the divorce was finalized, the parties reconciled;

they executed a property and reconciliation agreement (PRA) on

March 4, 2008.    Under the PRA, both parties waived the right to

seek child support and spousal support from the other. Plaintiff's

counsel prepared the PRA; at that point, defendant did not have

legal representation nor had he worked for the previous three

years.

      Plaintiff filed a second divorce complaint in 2011, followed

by a motion to enforce the PRA.       The judge granted the motion,

finding the PRA enforceable; however, we granted defendant leave

to appeal that order, and ultimately remanded for the court to

conduct further fact-finding.    On remand, the judge found the PRA

unenforceable, and memorialized that finding in a November 15,

2013 order.

      In April 2014, the court entered a pendent lite order awarding

defendant $80 per week in spousal support.        In June 2014, the

judge increased plaintiff's spousal support obligation to $270.00

per week.

      The divorce case proceeded to trial over three days in

November 2016.     Both parties testified at length and defendant

presented three additional witnesses.      Three months later, the

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court entered the JOD, which equitably distributed the parties'

property and awarded defendant seven years of term alimony at the

rate of $270 per week.       The judge made the award retroactive to

April   2014,     when   defendant   started    receiving    pendente    lite

support.    The judge also awarded plaintiff child support at the

rate of $45.17 per week, after imputing annual income of $45,590

to defendant.      Both parties filed for reconsideration.        On October

24, 2016, the judge entered an order amending certain provisions

of the JOD and recalculating the income imputed to defendant,

resulting in a reduction in his child support obligation to $18.31

per week.       This appeal followed.

                                      II

     Plaintiff's notice of appeal states she appeals from the JOD

and the October 24, 2016 reconsideration order.              In her brief,

plaintiff argues the court erred in awarding defendant spousal

support, and further asserts the court should have held a plenary

hearing    as    to   defendant's    claimed   disability;   in   addition,

plaintiff argues she should receive the benefit of the PRA.1


1
   While plaintiff's brief asserts she appeals from the court's
November 15, 2013 order finding the PRA unenforceable, her notice
of appeal fails to include this order. Moreover, plaintiff's case
information statement, which directed her to give the date and
summary of judgment, order, or decision being appealed and attach
a copy, lists only the February 29, 2
016 JOD and October 24, 2016
order; she attached only those orders and did not attach the


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       Our review of a trial court's fact-finding in a non-jury case

is limited, and we owe substantial deference to the Family Part's

findings of fact because of the court's special expertise in family

matters.      Seidman v. Clifton Sav. Bank, 
205 N.J. 150, 169 (2011);

Cesare   v.    Cesare,   
154 N.J.    394,   411-12   (1998).     Thus,   "[a]

reviewing court should uphold the factual findings undergirding

the trial court's decision if they are supported by adequate,

substantial and credible evidence on the record."                 MacKinnon v.

MacKinnon, 
191 N.J. 240, 253-54 (2007) (alteration in original)

(quoting N.J. Div. of Youth & Family Servs. v. M.M., 
189 N.J. 261,

279 (2007)).

                                        III

       Plaintiff first argues the court erred in awarding defendant

spousal support.      We disagree.

       Spousal support awards should "take into consideration the

real facts and circumstances of each party's financial situation

including actual income, expenses, support from other sources and

potential earning capacity."            Connor v. Connor, 
254 N.J. Super.
 591,   604    (App.   Div.     1992).     Spousal   support   "is   neither    a


November 15, 2013 PRA order. Accordingly, we decline to address
plaintiff's arguments regarding the PRA's enforceability.      See
W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 
397 N.J. Super. 455, 458 (App. Div. 2008) ("It is clear that it is only the orders
designated in the notice of appeal that are subject to the appeal
process and review.").

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punishment for the payor nor a reward for the payee.                    Nor should

it be a windfall for any party."                 Aronson v. Aronson, 
245 N.J.

Super. 354, 364 (App. Div. 1991).

     When establishing the amount of a spousal support award, the

judge must apply the criteria that are contained in 
N.J.S.A. 2A:34-

23(b).    Crews v. Crews, 
164 N.J. 11, 25 (2000).                    "[T]he general

considerations are the dependent spouse's needs, that spouse's

ability to contribute to the fulfillment of those needs, and the

supporting spouse's ability to maintain the dependent spouse at

the former standard." Id. at 24 (internal quotation marks omitted)

(quoting Lepis v. Lepis, 
83 N.J. 139, 152 (1980)).

     Here, the judge thoroughly considered the factors set forth

under 
N.J.S.A. 2A:34-23 and found the income disparity between the

parties   significant.         He    found      plaintiff     made    approximately

$130,000 per year at the time of trial, and the "mean wage for a

carpenter is approximately $45,590."               He also found defendant had

been absent from the job market for a significant period of time.

      Additionally,      the    judge      reviewed     the    parties'    age   and

health, and acknowledged defendant had serious medical issues;

however, he noted defendant failed to present evidence that his

medical issues prevented him from working, and found defendant's

failure   to   attempt    to        find       other   employment      "troubling."

Accordingly, we discern no abuse of discretion in the judge's

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findings concerning the court's determination to award defendant

spousal support.

                                      IV

      Plaintiff further argues the court erred by entering its

October 24, 2016 reconsideration order, resulting in the reduction

of defendant's imputed income and child support obligation.                   We

disagree.

      We review a trial court's decision of a reconsideration motion

for abuse of discretion.        Palombi v. Palombi, 
414 N.J. Super. 274,

288 (App. Div. 2010).       On appeal, a trial judge's imputation of a

specific amount of income "will not be overturned unless the

underlying   findings     are    inconsistent      with   or   unsupported    by

competent evidence."       Storey v. Storey, 
373 N.J. Super. 464, 475

(App. Div. 2004).        Generally, "[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).

However, an "SSA adjudication of disability constitutes a prima

facie showing that [defendant] is disabled, and therefore unable

to be gainfully employed, and the burden shifts to [plaintiff] to

refute that presumption."        Id. at 342-43.       Evidence a party could

use   to   rebut   the    presumption       of   disability    includes,   "lay

testimony, expert testimony or medical records, consistent with



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the Rules of Evidence, as the trial court deems appropriate."             Id.

at 343.

     In the JOD, the court imputed income of $45,590 per year to

defendant based on the wage compendium for a carpenter's salary.

On reconsideration, however, the judge granted defendant's motion

to reduce his imputed income to $1130 per month — the maximum a

non-blind disabled individual could earn in substantial gainful

activity (SGA), as set by the SSA in 2016, and still qualify for

disability benefits.

     The court reasoned that its initial decision failed to follow

our holding in Golian, that a determination of SSA disability

constitutes prima facie evidence of inability to pursue gainful

employment.   Id. at 342-43.      Citing Golian, the judge explained,

when "proof of the adjudication is provided to the Court, the

burden shifts to the other party to refute the presumption;"

although plaintiff produced evidence of defendant "doing some

work," she failed to "provide any medical proof" to refute the

presumption   of   disability.     As   a   result,   the   court   reduced

defendant's imputed income to $1130 per month and reduced his

child support obligation to $18.31 per week.

     We discern no basis to disturb the judge's reconsideration

decision.     Plaintiff   fails    to   present   significant       evidence

rebutting defendant's disability, and her assertion that defendant

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goes "hunting, fishing, and gambling" fails to rebut the SSA's two

determinations   finding   defendant     disabled.   Accordingly,    the

judge's decision is supported by sufficient credible evidence and

does not constitute an abuse of discretion.

     Any   remaining   arguments   not   specifically   addressed   lack

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E).

     Affirmed.




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