DEANA CALLAHAM VS. EDWARD CALLAHAM (FM-02-1444-11, BERGEN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-5990-17T2
DEANA CALLAHAM,
Plaintiff-Respondent,
v.
EDWARD CALLAHAM,
Defendant-Appellant.
____________________________
Submitted April 29, 2019 – Decided June 10, 2019
Before Judges Fasciale and Gooden Brown.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-1444-11.
Callagy Law, PC, attorneys for appellant (Brian P.
McCann, on the brief).
Respondent has not filed a brief.
PER CURIAM
In this post-judgment matrimonial matter, defendant ex-husband appeals
from a June 8, 2018 Family Part order, denying his motion to reduce his support
obligations, and an August 7, 2018 order, denying his motion for
reconsideration. Defendant contends he established a prima facie showing of
changed circumstances, requiring further proceedings, and the trial court abused
its discretion in ruling otherwise. Having considered the record in light of the
applicable legal principles, we affirm.
In June 2012, an amended Final Dual Judgment of Divorce (JOD) was
entered requiring defendant to pay $560 per week in limited durational alimony
to plaintiff ex-wife for four years, commencing when plaintiff moved out of the
former marital residence (FMR), and $690 per week in child support for the
parties' three minor children until emancipation. These amounts were calculated
using imputed annual income of $150,000 for defendant and $61,500 for
plaintiff. Thereafter, the parties engaged in extensive post-judgment trial court
and appellate litigation, in which defendant primarily challenged his imputed
income and ability to pay, and plaintiff primarily sought enforcement of
defendant's support obligations.
In an unpublished opinion, we affirmed the JOD support awards and
upheld the income imputed to defendant based on defendant's "near constant
employment in various [information technology (IT)] positions starting in
August 2009[.]" Callaham v. Callaham, A-5757-11 (App. Div. Aug. 21, 2014)
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(slip op. at 32). In our decision, we deferred to the trial court's credibility
findings whereby "the court did not 'accept the [d]efendant's testimony as to his
financial situation.'" Id. at 14. Post-judgment motion practice continued
unabated, and on September 9, 2014, defendant moved to modify his support
obligations, arguing he had suffered a significant change in circumstances since
the entry of the JOD. Finding that defendant made a prima facie showing of
changed circumstances, the court conducted a plenary hearing, and, on January
4, 2016, reduced defendant's child support to $321 per week, effective the date
defendant filed his motion,1 and reduced defendant's alimony obligation to $257
per week, commencing upon plaintiff leaving the FMR, which was in
foreclosure.
In the written decision accompanying the January 4, 2016 order, the court
accepted defendant's evidence that his income had been reduced as a result of
his unemployment and incarceration in 2012 on a child support enforcement
warrant, and his subsequent employment in 2013 as a technician for Valvoline
earning $14 per hour. However, the court rejected defendant's testimony that he
had made a good faith and diligent search for better employment , finding it
1
Defendant remained responsible for the child support arrears that had
accumulated from the time the JOD was entered.
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3
"lacked credibility." The court also "place[d] little weight on defendant's claims
that his medical issues have affected his ability to obtain employment[,]"
because the claims were unsupported by "expert testimony or supporting
documentation." Rather, based on defendant's testimony "that he currently
work[ed] less than [forty] hours per week" and "turned down an assistant
manager position at Valvoline[] . . . , resulting in his demotion to technician,"
the court determined that defendant was underemployed,2 and imputed an annual
salary of $72,000, which was "the earning capacity of a manager at Valvoline."
After moving out of the FMR, on July 18, 2017, plaintiff moved for
enforcement of defendant's alimony obligation as well as other relief not
pertinent to this appeal. Defendant opposed plaintiff's motion and cross-moved
to terminate his alimony obligation and recalculate his child support obligation
due to disability or changed circumstances. In his supporting certification,
defendant averred he had "severe mental health issues including [post-traumatic
stress disorder (PTSD)], paranoia, depression[,] and bi-polar disorder," and was
"unable to work in any significant capacity due to [his] disability." According
to defendant, "[he] filed a claim for permanent disability, . . . attended the Social
2
Following a lengthy ability-to-pay hearing, a different judge had likewise
determined that defendant was underemployed.
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Security Administration [(SSA)] Disability Hearing on September 5, 2017[,]"
and was awaiting a decision.
In the alternative, defendant certified that he had no ability to earn the
$72,000 annual salary imputed to him in the January 4, 2016 order. He attached
his 2015 and 2016 "Federal and State income tax returns" showing he earned a
total of $9216 in 2015 and $9035 in 2016. He also attached his last two paystubs
from Valvoline showing a "total year-to-date gross income" of $11,054.20.
Defendant averred he was "completely destitute," "[had] no assets and a
magnitude of debt[,]" was "currently on Medicaid," and relied "on the kindness
of a few friends." Despite being "virtually unemployable," and "only hav[ing]
a high school diploma[,]" defendant indicated he "continued to search for better
jobs" and attached "examples of [his] continuous job search and online
applications." According to defendant, "[i]n stark contrast . . . , [p]laintiff has
been able to achieve financial success and has vastly improved her financial
situation over the past few years."
On November 15, 2017, the court denied without prejudice defendant's
cross-motion to terminate alimony and recalculate child support. On the other
hand, the court granted plaintiff's motion to enforce defendant's alimony
obligation, but suspended collection until February 1, 2018.
A-5990-17T2
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Upon receiving the Administrative Law Judge's (ALJ) decision on his
SSA disability application,3 on April 27 and May 4, 2018, defendant again
moved to decrease his support obligations and vacate his arrears based on
changed circumstances or, in the alternative, based on the ALJ's findings and
the testimony of the vocational expert adduced at the disability hearing. In his
supporting certification, defendant relied on the vocational expert's testimony to
show that he could "only work a minimal job because of [his] disabilities."
Defendant also accused plaintiff of engaging in various forms of fraud and
misconduct throughout the divorce proceedings, including "submitting a forged
tax return," which resulted in the court "imput[ing] a large fictitious amount of
income" to him in the JOD. Defendant's May 4, 2018 motion mirrored his April
27, 2018 motion, but added a claim that plaintiff was cohabitating with her
fiancé as additional evidence of changed circumstances.
In the SSA decision, the ALJ concluded that defendant was not disabled
within the meaning of the SSA "[b]ased on the testimony of the vocational
expert, . . . [defendant's] age, education, work experience, and residual
functional capacity, [and defendant's] . . . capab[ility] of making a successful
adjustment to other work that exists in significant numbers in the national
3
The decision was issued on November 28, 2017.
A-5990-17T2
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economy." According to the ALJ, while "[t]he record reveal[ed] diagnoses of
bipolar disorder, not otherwise specified, chronic PTSD[,] and depressed mood,"
"it [did] not support [defendant's] allegations of disabling functional limitations"
and "[defendant's] statements concerning the intensity, persistence[,] and
limiting effects of [his] symptoms [were] not entirely consistent with the
medical . . . and other evidence in the record."
Nonetheless, based on defendant's "assessed residual functional capacity"
and "persuasive" testimony from the vocational expert, the ALJ concluded that
defendant was "unable to perform" his "past relevant work as a programmer -
analyst." However, "[a]fter careful consideration of the entire record," the ALJ
determined that:
[Defendant] ha[d] the residual functional capacity to
perform a full range of work at all exertional levels but
with the following non-exertional limitations:
[defendant] [was] able to understand, remember[,] and
carry out simple instructions with only occasional
changes to essential job functions; [was] able to make
simple work-related decisions[,] and must not have
interaction with the general public. [4]
4
The ALJ attributed the prohibition on "interaction with the general public" to
"according extreme deference to [defendant's] subjective reports of anger
outbursts and irrational behavior."
A-5990-17T2
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In determining the extent to which these "non-exertional limitations" eroded the
occupational base of unskilled work at all exertional levels, the ALJ accepted
the testimony of the vocational expert that given defendant's age, education,
work experience, and residual functional capacity, defendant would be able to
perform the requirements of the following representative occupations: "hand
packager," "cleaner," and "mail clerk[.]"
Plaintiff opposed defendant's motions and cross-moved for enforcement
of the prior orders. In her supporting certification, plaintiff noted there was no
finding that defendant was disabled, and pointed out that the vocational expert's
testimony "should not be counted as evidence" because "complete documents"
were not provided. Plaintiff also denied defendant's accusations of misconduct
and cohabitation. In a reply certification, defendant reiterated that despite his
diligent efforts "to obtain better employment as evidence[d] by [his] past job
searches," the vocational expert agreed that "[his] disability prevent[ed] [him]
from doing any skilled work." Further, defendant asserted that based on the
same proofs, a different judge had reduced his child support for another child
born from a prior relationship.
Following oral argument, on June 8, 2018, the court denied defendant's
motion in its entirety. In an oral decision, the court acknowledged its discretion
A-5990-17T2
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to modify support obligations but noted that the burden was on the party seeking
modification to make a prima facie showing of changed circumstances before
"[t]he non-moving party's ability to pay . . . [became] a factor for the [c]ourt to
consider." See Lepis v. Lepis, 83 N.J. 139 (1980). Moreover, according to the
court, "[w]hen a parent without just cause is voluntarily unemployed or
underemployed, income may be imputed to that parent to provide for the child's
needs." See Caplan v. Caplan, 182 N.J. 250, 268 (2005). Further, the court
explained that "[b]y seeking to eliminate his alimony obligation, . . . defendant
[was] conceptually seeking to change the duration of his obligation from four
years to what would ultimately be four months[,]" which, under N.J.S.A. 2A:34-
23(c), required defendant to "demonstrate unusual circumstances" to succeed in
such an application.
Applying these legal principles to defendant's disability arguments,5 the
court stated:
[D]efendant . . . claims that he is disabled and that
a federal vocational expert concluded that he can only
work a minimal job due to his disability. First of all,
. . . defendant provided only two of ten pages
5
The court rejected defendant's "arguments pertaining to plaintiff's alleged
forgery or fraud" as an attempt "to relitigate" the underlying JOD, which was
affirmed on appeal, and dismissed defendant's "claim that plaintiff [was]
cohabiting with her fiancé" as an unsupported "bald assertion."
A-5990-17T2
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comprising the [ALJ's] decision in the [SSA]
proceeding. . . .
Notably, . . . the [ALJ] determined that
. . . defendant is not disabled. Conspicuously absent
from this motion is any medical evidence to support
. . . defendant's claim that he [is] disabled or the report
of the vocational expert. In any event, based upon the
limited information provided, . . . defendant clearly
mischaracterizes the expert's statements.
The [ALJ] concluded that . . . defendant is unable
to perform his prior work as a programmer analyst due
to non-exertional limitations and the expert purportedly
opined that . . . defendant is capable of working in other
positions that are prevalent in the national economy
such as a hand packager, industrial cleaner[,] or mail
clerk, all of which are unskilled positions. This was
sufficient to satisfy the [ALJ] that . . . defendant is able
to maintain some type of gainful employment and is
therefore not disabled for [SSA] purposes. There is no
indication that any information was provided during
that hearing as to defendant's current position [as a
Valvoline technician] . . . or the assistant manager
position at Valvoline, which he turned down.
It does not follow that . . . defendant's ability to
work is therefore limited to these three positions that
are referenced in the opinion. Therefore, the [c]ourt
accepts the [SSA's] conclusions that . . . defendant is
not disabled. The purported expert testimony or report
is missing and in any event, is unavailing, as . . .
defendant is clearly not disabled. The [ailments] of
which he complains; specifically, attention deficit
hyperactivity disorder, [PTSD,] and bipolar disorder,
are not new and existed prior to the divorce as reflected
in the Bergen Family Center [r]eport of June 3, 2011[,]
and [PTSD] was, according to . . . defendant, caused
A-5990-17T2
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during his military service . . . prior to the entry of the
[JOD] . . . .
Next, the court addressed defendant's reliance on the reduction of child
support in an unrelated case:
Next, defendant argues that he [is] entitled to a
modification of his child support because [another
judge] recalculated defendant's support application for
the benefit of his older son from a prior relationship on
May 10, 2018. The [c]ourt has no information
regarding the basis for [the other judge's] decision and
in any event, is not bound by that decision of an equal
court.
Further, while this is no criticism [of the other
judge], clearly she was not privy to th[e] litigious
history in this matter including the trial and at least . . .
two[] post[-]judgment [p]lenary [h]earings in which
. . . defendant's earnings and income have been
scrutinized by other Superior Court [j]udges and the
Appellate Division.
The court concluded that "based upon what has been presented,"
defendant has failed to make a prima facie showing of
changed circumstances since the most recent alimony
and child support orders were entered on January [4],
2016. At that time, [the court] found that . . . defendant
was underemployed and imputed an income to him of
$72,000. That determination cannot be disturbed
absent a showing of changed circumstances.
Further, on November 15, 2017, this [c]ourt
found that he was on pace to earn and in fact did earn
more than he had in 2013. . . . [D]efendant's income
tax returns reflect that he earned $14,248 in 2017,
A-5990-17T2
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which is a substantial increase in his previous earnings
of [$9035] in 2016 and [$9216] in 2015. Moreover,
based upon the three [paystubs] defendant provided
from January and February of this year, . . . defendant's
gross earnings during those three weeks average
$506.53. If defendant continues earning at this pace,
he will earn approximately $26,340 in 2018. So
contrary to . . . defendant's assertions and despite his
claimed disabilities, his financial circumstances have
continued to improve . . . .
On June 22, 2018, defendant moved for reconsideration. In support,
defendant supplied the ALJ's opinion in its entirety and requested that the court
recalculate the imputed income based on pay scales for each of the three
positions identified by the vocational expert. To that end, defendant submitted
documentation showing that a hand packager earned an average salary of $10.98
per hour, a cleaner earned an average salary of $11.11 per hour, and a mailroom
clerk earned an average salary of $12.60 per hour.
On August 7, 2018, after applying settled legal principles, the court denied
defendant's motion, "find[ing] that the June 8, 2018 decision was [not] 'based
upon a palpably incorrect or irrational basis[,]'" and that "[d]efendant's mere
allegation that '[the court] may have overlooked or misread some important
information in the [ALJ's] findings'" was "not sufficiently specific for this
[c]ourt to conclude that it failed to appreciate the significance of any of the
information provided[,]" "both at the time of the motion hearing and now." See
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R. 4:49-2 (providing that a reconsideration motion must "state with specificity
the basis on which it is made, including a statement of the matters or controlling
decisions which counsel believes the court has overlooked or as to which it has
erred").
In its written statement of reasons, the court stated:
Defendant asks that "this [c]ourt . . . [r]econsider
the . . . [SSA] finding in its entirety." Defendant
provides wage information from the Department of
Labor website and asks the [c]ourt to "recalculate the
imputed income to [him] based off of actual income and
proofs aligned with . . . the [vocational expert's]
[f]inding. . . ." As to the latter, [d]efendant did not ask
that the [c]ourt impute income to him based upon the
findings of the vocational expert in either of the
motions he filed that were heard on June 8, 2018. To
the contrary, [d]efendant argued that the federal
vocational expert's testimony supported that his "actual
income" was essentially the maximum he was capable
of earning. None of [d]efendant's requested relief
sought an imputation of income, and he is not entitled
to raise new arguments in a motion for reconsideration.
Next, the court pointed out that previously, "[d]efendant provided only
two . . . of the ten . . . pages of the [ALJ's] decision" but "now provides the
written decision . . . in its entirety." The court continued:
Notably this decision is dated November 28, 2017[,]
and, as evidenced by [d]efendant's provision of some of
its contents, it was available to him at the time he filed
his motions on April 27 and May 4, 2018.
Nevertheless, this [c]ourt has reviewed the [ALJ's]
A-5990-17T2
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decision in its entirety, paying particular attention to
the information provided in the eight . . . pages not
annexed to the original motion papers, and finds no
basis to disturb the June 8, 2018 [o]rder.
To support its decision, the court noted that the ALJ found that defendant's
mental impairments were "not 'severe enough to prevent an adult from doing
any gainful activity regardless of his age, education, or work experience.'"
Further, according to the court, the ALJ "pointed to several inconsistencies in
[d]efendant's testimony compared to his paperwork[,]" and the ALJ limited
defendant's "interaction with the general public" based on defendant's
"subjective reports of anger outbursts and irrational behavior[,]" rather than any
"mental work limitations[.]" Indeed, the ALJ found that "mental work
limitations" were not supported by "the objective evidence of record[.]"
As to defendant's job at Valvoline, the court explained:
The [ALJ] makes a fleeting reference to
[d]efendant's "part-time job," stating only that such
employment "evidences his ability to sustain attention
and concentration sufficient to perform the
requirements of the job." The [c]ourt cannot determine
from the [ALJ's] decision the extent to which
[d]efendant's current employment and related
responsibilities were raised in the testimony at the
hearing or set forth in the record, and these materials
have not been provided to this [c]ourt. There is
likewise nothing in the decision to suggest that the
[ALJ] was apprised of the promotion offered to
[d]efendant, which he declined.
A-5990-17T2
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The court stated that after reviewing the ALJ's decision in its entirety,
rather than changing its June 8, 2018 decision,
[t]o the contrary, the [ALJ's] observations regarding the
inconsistency of [d]efendant's claimed symptoms
versus the objective record further bolster this [c]ourt's
conclusion that [d]efendant is not limited to the three
. . . jobs set forth by the [ALJ]. The [ALJ] was able to
afford "extreme deference" to [d]efendant's self-reports
of his limitations while nevertheless concluding that, at
a minimum, [d]efendant had several viable options for
gainful employment and [was] therefore not disabled
for [SSA] purposes.
Further, findings regarding employability in the
context of [SSA] are not binding upon this [c]ourt. The
law applicable to those proceedings and the standards
that this [c]ourt must apply are distinct, as are the
respective objectives of the proceedings. The stakes are
likewise incomparable as this [c]ourt must concern
itself, first and foremost, with the support and well-
being of children. Specifically, this [c]ourt must
determine the level of support to which children are
entitled based upon their parents' actual incomes or
their earning capacities. The [SSA], however, is
concerned with determining whether individuals—
primarily adults—are entitled to Social Security
benefits. In this regard, the [c]ourt must again
emphasize that the [ALJ] ultimately concluded, as a
result of the findings on which [d]efendant so heavily
relies, that [d]efendant is not disabled.
The court entered a memorializing order and this appeal followed.
The scope of our review of a Family Part order is limited. Cesare v.
Cesare, 154 N.J. 394, 411 (1998). Unless it lacks support or is inconsistent with
A-5990-17T2
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the substantial, credible evidence in the record, Rova Farms Resort, Inc. v.
Investors Insurance Company, 65 N.J. 474, 483-84 (1974), we generally defer
to the Family Part's fact-finding because of the court's "special expertise" in
family matters. N.J. Div. of Youth and Family Servs. v. F.M., 211 N.J. 420, 448
(2012). We likewise defer to the Family Part and "give due recognition to the
wide discretion[,] which our law rightly affords to the trial judges who deal
with" motions to modify alimony and child support awards. Spangenberg v.
Kolakowski, 442 N.J. Super. 529, 535-36 (App. Div. 2015) (alteration in
original) (quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)).
While we owe no special deference to the "trial court's interpretation of
the law and the legal consequences that flow from established facts[,]"
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995),
we
"should not disturb the factual findings and legal
conclusions of the trial judge unless . . . convinced that
they are so manifestly unsupported by or inconsistent
with the competent, relevant[,] and reasonably credible
evidence as to offend the interests of justice" or when
we determine the court has palpably abused its
discretion.
[Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div.
2010) (first alteration in original) (quoting Cesare, 154
N.J. at 412).]
A-5990-17T2
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Similarly, our standard of review on a motion for reconsideration is
deferential. "Motions for reconsideration are governed by [Rule] 4:49-2, which
provides that the decision to grant or deny a motion for reconsideration rests
within the sound discretion of the trial court." Pitney Bowes Bank, Inc. v. ABC
Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015). Reconsideration
"is not appropriate merely because a litigant is dissatisfied with a decision of the
court or wishes to reargue a motion[.]" Palombi v. Palombi, 414 N.J. Super.
274, 288 (App. Div. 2010). Rather, reconsideration
should be utilized only for those cases which fall into
that narrow corridor in which either 1) the [c]ourt has
expressed its decision based upon a palpably incorrect
or irrational basis, or 2) it is obvious that the [c]ourt
either did not consider, or failed to appreciate the
significance of probative, competent evidence.
[Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392,
401 (Ch. Div. 1990)).]
"In short, a motion for reconsideration provides the court, and not the
litigant, with an opportunity to take a second bite at the apple to correct errors
inherent in a prior ruling." Medina v. Pitta, 442 N.J. Super. 1, 18 (App. Div.
2015). It "does not provide the litigant with an opportunity to raise new legal
issues that were not presented to the court in the underlying motion." Ibid.Thus, we will not disturb a trial judge's denial of a motion for reconsideration
A-5990-17T2
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absent a clear abuse of discretion. Pitney Bowes Bank, 440 N.J. Super. at 382.
An "abuse of discretion only arises on demonstration of 'manifest error or
injustice,'" Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres,
183 N.J. 554, 572 (2005)), and occurs when the trial judge's decision is "made
without a rational explanation, inexplicably departed from established policies,
or rested on an impermissible basis." Milne v. Goldenberg, 428 N.J. Super. 184,
197 (App. Div. 2012) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561,
571 (2002)).
Here, we discern no abuse of discretion. On the contrary, the court's
decision complied with settled principles applicable to modification motions.
Indeed, a party who seeks modification of an alimony or child support award is
required "to prove 'changed circumstances,'" Spangenberg, 442 N.J. Super. at
536 (quoting Lepis, 83 N.J. at 157), and "as would warrant relief from the
support or maintenance provisions involved." Lepis, 83 N.J. at 157. "[T]he
changed-circumstances determination must be made by comparing the parties'
financial circumstances at the time the motion for relief is made with the
circumstances which formed the basis for the last order fixing support
obligations." Beck v. Beck, 239 N.J. Super. 183, 190 (App. Div. 1990). "If that
showing is made, . . . the judge then determines whether the changed
A-5990-17T2
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circumstances justify modification" and "[a] plenary hearing may be necessary
to adjudicate the matter if there are genuine issues of material fact." Dorfman
v. Dorfman, 315 N.J. Super. 511, 515 (App. Div. 1998).
Here, contrary to defendant's argument, he failed to make the requisite
showing of changed circumstances to justify further proceedings. Rather, the
court determined there was no basis to change the $72,000 annual salary imputed
to him in 2016 due to his underemployment because "despite his claimed
disabilities, his financial circumstances have continued to improve[.]" The
court's determination is supported by substantial, credible evidence in the
record.
In this context, trial courts are obliged to consider the "potential earning
capacity of an individual, not his or her actual income[.]" Caplan, 182 N.J. at
268 (quoting Halliwell v. Halliwell, 326 N.J. Super. 442, 448 (App. Div. 1999)).
When a parent is "voluntarily unemployed or underemployed" "without just
cause," income should be imputed to "promot[e] a fair and just allocation of the
support obligation" of both parents. Id. at 268-69. However, there are no bright-
line rules that govern the imputation of income. Instead, "[i]mputation 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
A-5990-17T2
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availability." Storey v. Storey, 373 N.J. Super. 464, 474 (App. Div. 2004).
Thus, when a party appeals a decision to impute or not impute income, we will
only disturb the result if "the underlying findings are inconsistent with or
unsupported by competent evidence." Id. at 474-75. Such is not the case here.
Nonetheless, relying on Golian v. Golian, 344 N.J. Super. 337 (App. Div.
2001),6 defendant argues that "[w]hile [the] SSA did not find [him] disabled, the
adjudication and findings . . . undoubtedly established a prima facie showing
that [d]efendant is unable to earn the $72,000[] that was imputed to him in
[2016]" because "[a]ccording to the Occupational Employment Statistics," a
"hand packager[,]" a "cleaner[,]" and a "mail clerk[,]" earn a median gross
annual income of $23,430, $22,850, and $29,620, respectively. Acknowledging
that "the SSA's findings and conclusions are not 'binding,'" defendant contends
"they are entitled to significant weight and form the basis for a prima facie
showing of changed circumstances." Further, defendant asserts that "despite
'accepting' the SSA conclusions," the court "never [drew] the connection that
6
Defendant also relies on Gilligan v. Gilligan, 428 N.J. Super. 69 (Ch. Div.
2012). However, as a Chancery Division decision, Gilligan is not binding on
this court. See Gormley v. Wood-El, 218 N.J. 72, 114 (2014) (noting that "[t]he
decisional law of the Appellate Division is not only binding on our trial courts,
but is an expression of the law of our State unless the New Jersey Supreme Court
says otherwise").
A-5990-17T2
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the SSA findings and conclusions confirm that [d]efendant is not capable of
earning $72,000 gross, per year[,]" and "never reconcile[d] its conclusion that
[d]efendant could be employed as a manager at Valvoline . . . with its acceptance
of the SSA findings."
In Golian, the plaintiff appealed from the portions of a JOD "pertaining to
certain financial matters, which were predicated on imputation of income to
her." 344 N.J. Super. at 338. Despite acknowledging the "plaintiff's SSA
disability status," and receipt of "disability benefits" from the SSA, the trial
court "determined that plaintiff had the burden of proving her inability to work
through medical evidence, and since plaintiff presented no such evidence she
failed to meet her burden." Ibid. We reversed, holding that "the 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. We remanded "for
further proceedings, in which the trial judge shall consider such additional
evidence which defendant may present to attempt to overcome this
presumption[,]" after which "the trial court shall evaluate" and "determine anew
whether income should be imputed to plaintiff." Id. at 343.
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Contrary to Golian, here, the SSA decision determined defendant was not
disabled. "A party asserting inability to work due to disability bears the burden
of proving the disability. Ordinarily, then, that party must produce evidence t o
carry that burden." Id. at 341. Here, defendant failed to carry his burden. In
fact, defendant failed to provide any supporting medical documentation to the
court, prompting the court to observe that "[c]onspicuously absent from
[defendant's] motion is any medical evidence to support . . . defendant's claim
that [he is] disabled." Thus, unlike Golian, defendant presented no prima facie
showing that he was disabled, to shift the burden to plaintiff to refute that
presumption.
Further, defendant argues that "any fault attributed to [him] for failing to
provide the complete SSA adjudication with the initial motion(s) was cured on
reconsideration." However, reconsideration is properly denied when the
application is based upon unraised facts known to the moving party prior to the
entry of the challenged order and "cannot be used to expand the record and
reargue a motion." Capital Fin. Co. of Del. Valley v. Asterbadi, 398 N.J. Super.
299, 310 (App. Div. 2008). Rather, "[a] motion for reconsideration is designed
to seek review of an order based on the evidence before the court on the initial
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motion, [Rule] 1:7-4, not to serve as a vehicle to introduce new evidence in order
to cure an inadequacy in the motion record." Ibid.Indeed, in Palombi, we held that the trial court was not even "required to
engage in the reconsideration process" when appellant "sought reconsideration
of [an earlier] order, which decided a motion for child support that he had not
opposed." 414 N.J. Super. at 289. We determined appellant "failed to make the
showing required to initiate the reconsideration process" because "[t]he
assertions in his certification and the documents submitted, . . . constituted facts
known to him prior to the entry of the order and were not an appropriate basis
for reconsideration." Ibid. Likewise, here, defendant's submission of the
complete SSA decision, which was known to him almost seven months prior to
the entry of the June 8, 2018 order, failed to satisfy the threshold requirement of
demonstrating that the court acted in an arbitrary, capricious, or unreasonable
manner, and was fatal to his reconsideration motion.
Affirmed.
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