In a recent published (precedential) decision, Gormley v. Gormley, the Appellate Division cleared up confusion between two prior cases that dealt with the impact of a determination of disability by the Social Security Administration upon support.
In Gormley, the parties were divorcing. The Wife in this matter had been diagnosed with multiple sclerosis during the marriage. Also during the marriage, the Wife was declared permanently disabled by the Social Security Administration (“SSA”) and did not work. The trial court judge made a number of reversible errors when deciding how much alimony and child support should be awarded to the Wife (who was awarded sole custody of the minor child of the marriage). One critical piece of the puzzle, though, was the question of whether the trial court properly imputed income to the Wife, despite the undisputed fact that she was declared permanently disabled by the SSA.
In the most simple of terms, the concept of imputation of income is used by the New Jersey family courts when there is an unjustifiable reason for a party to be out of work or earning less than they are capable of earning to support the family. It is generally reserved for situations where a court believes the individual is intentionally or unjustifiably under-earning or under-performing in order to deflate his/her income and pay less support.
In Gormley, the Wife argued that she should not be imputed income for purposes of determining alimony and child support, because she legitimately did not work as a result of her disability, and offered the SSA disability determination as proof. Relying on a case called Gilligan v. Gilligan, 428 N.J. Super. 69 (Ch. Div. 2012), the trial court judge found that this determination by itself was not enough to establish that the Wife legitimately was unable to work. In the judge’s opinion, the Wife did not appear in court to suffer from symptoms that would prevent her from working. Therefore, the trial court judge imputed income to the Wife over her objection.
The Appellate Division has now reversed this decision, finding that the trial court judge wrongly relied on Gilligan, a trial court decision, when there is a contrary decision on this issue from a higher Court, which controls. Under the controlling case law set forth in Golian v. Golian, 344 N.J. Super. 337, 338-43 (App. Div. 2001) – which is the case that the trial court should have relied on – it is well settled that:
[W]hen the SSA has determined a party is disabled, a presumption of disability is established and the burden shifts to the opposing party to refute that presumption.
Put another way, in a situation like the Wife’s in Gormley, she is to be presumed unable to work. It would be up to the other side to show that she can. For example, persuasive evidence that could rebut the presumption might include proof that the person who is declared disabled under the SSA was actually performing work “off the books,” or volunteering to do work for which they could otherwise earn money.
Not only does this published decision reaffirm the holding of Golian and reject the Gilligan case, a trial court opinion which on which the trial judge improperly relied, but it also serves as an important reminder to all of us attorneys: before you rely on a case (especially a trial court case!), make sure to check to see if there are any more authoritative cases out there that are contradictory.
Jessica C. Diamond is an attorney in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or email@example.com.