GORMLEY V. GORMLEY
Docket No. A-1428-18T4
Approved for Publication May 5, 2020
Decided December 26, 2019
Submitted by New Jersey Child Custody Law Firm, Hark and Hark.
In a recent decision approved for publication, Gormley v. Gormley, the Appellate Division overturned a decision by the trial court that imputed income to an individual declared disabled by Social Security for purposes of calculating alimony and child support.
In Gormley, the parties married for 12 years before separating and finally filing for divorce 3 years after separation. The parties had one child. Defendant suffered from Multiple Sclerosis (MS) and Social Security Administration (SSA) determined she was disabled. For this reason, defendant was unemployed. At the divorce trial, the judge decided defendant to have sole legal and residential custody. In addition, the judge imputed defendant’s income at $240 per week despite her being unemployed. The judge reasoned that defendant needed to provide additional medical proof of her disability in addition to receiving Social Security Disability (SSD). The judge deviated downward from the child support guidelines, ordering $90 per week in child support and $200 per week in alimony, leaving defendant to pay all unreimbursed medical expenses.
Defendant filed a motion for reconsideration for imputing income to her despite being declared disabled by SSA and for failure to provide reason for deviating from the child support guidelines. The judge declared it was unjust to require plaintiff to pay the full amount of child support when he was not going to see his child. The judge denied the motion for reconsideration with regard to imputing income to defendant. Defendant appealed.
The Appellate Division ruled that although the trial judge can impute income when an individual is voluntarily underemployed, when a party is declared disabled by SSA, there is a prima facie showing that the person is unable to be gainfully employed, and the burden shifts to the opposing party to refute the presumption. The judge, therefore, misapplied the law and wrongfully imputed defendant’s income. The Appellate Division also found that the trial judge failed to impute income to the plaintiff appropriately, as he intentionally worked less for the purposes of the trial.
Child support and alimony calculations are complicated matters. The initial calculations of these amounts is crucial in terms of the law. Once the amounts are set, you need to make a showing of significant non temporary change in circumstance to have the amounts adjusted. Therefore, be sure you hire an attorney before these amounts are calculated to make sure you are getting or paying the right amount of child support and alimony.
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Michael J. Collis, Esquire