NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-1103-16T2
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
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.
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
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
the TRO, finding defendant's domestic violence complaint
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
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,
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
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
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.
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
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
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.
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,
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.").
punishment for the payor nor a reward for the payee. Nor should
it be a windfall for any party." Aronson v. Aronson,
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
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
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
findings concerning the court's determination to award defendant
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
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
the Rules of Evidence, as the trial court deems appropriate." Id.
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
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
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.