The recent unpublished decision of Gormley v. Gormley serves as a good reminder for four polestar issues in matrimonial litigation, below, as well as to put on your best evidence in an effort to ensure that the trial court enters the appropriate decision and, ultimately, to not stop litigating up the ladder when it fails to do so:
- Imputation of income to a party who receives Social Security Disability Income;
- Imputation of income to a party who is voluntarily under or unemployed;
- Determining the need for support;
- Deviating from the Child Support Guidelines particularly in a case where the child does not have a relationship with the non-custodial parent
Relevant to each issue are the following facts:
- The parties married in 2000, separated in 2012 and the divorce complaint was filed by Plaintiff/husband in 2015. They had one child born in 2004, who did not have a relationship with Plaintiff at the time of trial in or around 2018.
- Defendant/wife received Social Security Disability (SSD) benefits due to her diagnosis of Multiple Sclerosis, which diagnoses she had since prior to the parties’ marriage. Defendant was determined disabled by the Social Security Administration (SSA) in 2002 and was out of the workforce since that time.
- Plaintiff earned $150,000 gross per year in the two years leading up to the divorce trial through his commission-based employment, but then purposefully reduced his hours in order to study psychology and parental alienation, and to prepare for trial.
Based upon these facts, the trial court imputed income to Defendant because she did not produce further evidence of her disability beyond her SSA determination and testimony, and because of the court’s observations of Defendant during trial; did not impute income to Plaintiff for his admitted voluntary underemployment and, rather, used a six-year average of his pre-separation income – which was five years prior to trial – and totaled less than $100,000 per year as compared to $150,000 he earned in the two years leading to trial; reduced Defendant’s budget without any reasoning on the record; and, entered child support deviating from the New Jersey Child Support Guidelines primarily because Plaintiff did not have a relationship with the child. All of the foregoing was subject to a Motion for Reconsideration that the trial court denied and then became subject of this appeal, which lead to reversal, remand and vacating those aspects of the decision.
The Appellate Division reviewed each area of the trial court’s decision and correctly found flaws in all, as follows:
- Imputation of income to a litigant who receives Social Security Disability Income – Golian v. Golian remains the controlling case on this issue and holds that the litigant who was declared disabled is subject to a rebuttable presumption that he/she is unable to work, and the opposing party then bears the burden to rebut that presumption. The court in the instant matter confirmed that to the extent the trial court decision of Gilligan v. Gilligan has contrary holdings to Golian, Golian prevails. Specifically, Gilligan requires the disabled party to first produce more evidence beyond the SSA disability determination before the adverse party is required to rebut the presumption. In Gormley, the Plaintiff failed to rebut Defendant’s disability and, thus, the Appellate Division found the the trial court erred in imputing income to Defendant based upon its own observations of Defendant.
- Imputation of income to an underemployed litigant – The Appellate Division again found error in the trial court’s decision, this time by calculating Plaintiff’s income for purposes of paying support using a six-year, pre-separation average – ending five years prior to trial – and ignoring his last two years of income prior to trial, when failing to consider whether Plaintiff was earning at his full capacity. The Appellate Division, citing to Lynn v. Lynn, specifically noted that it is a fatal error to leave out the amount of the payor’s income leading to the trial when averaging income to determine an ability to pay support. Thus, it is an obvious error to average income over the six years prior to separation, particularly when that time period was five years prior to trial, and to ignore his income for the two years leading to trial.
- Need for Support – In the third error in this matter, the trial court failed to explain why it reduced Defendant’s budget from $7,700 per month for $4,300 per month, which is undoubtedly erroneous and leaves the Appellate Division without a specified decision to review. This issue was remanded (sent back) to the trial court for an explanation as to is calculation for this budget reduction.
- Deviating from the Child Support Guidelines – To add icing on the cake, the trial court deviated from the Child Support Guidelines because Plaintiff did not have parenting time with the child (noting, however, that prior to the reconsideration decision the trial court did not place any findings on the record as to why it deviated from the Guidelines). First, the Guidelines include the amount of overnights a parent does/does not have so this should not even be an issue. Moreover, as the Appellate Division reiterated, the Guidelines allow for deviation when the non-custodial parent spends more time with the child than contemplated in the Guidelines calculation but not in the manner as the trial court ordered in Gormley. Most Notably, the Appellate Division found error by the trial court’s failure to consider the best interests of the child when deviating from the Guidelines, which is arguably the material consideration when determining a child support award and, frankly, when evaluating any child-related issue.
Gormley serves as another lesson regarding the importance to lay out all relevant facts for the trial court to absorb and have at the ready to incorporate into a decision (including in pre- and post-trial memoranda) and to not stop litigating upon receipt of a poor decision when the trial court has provided the groundwork for a successful appeal.