                                NOT FOR PUBLICATION WITHOUT THE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-1428-18T4

JOSEPH J. GORMLEY, III,

          Plaintiff-Respondent,

v.

SUSAN CANNAVO
GORMLEY,

     Defendant-Appellant.
________________________

                    Submitted September 16, 2019 – Decided December 26, 2019

                    Before Judges Rothstadt, Moynihan, and Mitterhoff.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Burlington County,
                    Docket No. FM-03-1232-15.

                    Capehart & Scatchard, PA, attorneys for appellant
                    (Amy Charna Goldstein and Linda M. Payne, on the
                    briefs).

                    Joseph J. Gormley, III, respondent pro se.

PER CURIAM
      Defendant Susan Cannavo Gormley appeals from portions of the Family

Part's June 28, 2018 final judgment of divorce (FJOD) that fixed the amount of

alimony and child support to be paid by plaintiff Joseph J. Gormley, and further

directed that defendant pay the parties' daughter's unreimbursed medical

expenses. Defendant also appeals from the trial judge's November 9, 2018 order

denying her motion for reconsideration. On appeal, defendant argues the Family

Part judge "erred in calculating alimony and child support by imputing income

to [her] and by failing to impute income to . . . plaintiff." She contends the judge

failed to consider defendant's "need for spousal support," and abused her

discretion by deviating from the Child Support Guidelines. See Child Support

Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to

R. 5:6A, www.gannlaw.com (2019).

      Having considered defendant's arguments in light of the record and the

applicable principles of law, we conclude the judge improperly imputed income

to defendant and not to plaintiff, did not explain her findings as to defendant's

need for support or plaintiff's ability to pay, and incorrectly deviated from the

Guidelines. For those reasons, we vacate the award of alimony and child

support, and remand the matter to the trial judge for reconsideration.




                                                                            A-1428-18T4
                                         2
                                        I.

      The salient facts as developed at the parties' trial are generally undisputed.

They are summarized as follows. The parties were married in 2000, had one

child in 2004, and in 2012 the parties separated when defendant and the child

moved in with defendant's parents. Plaintiff filed for divorce in 2015.

      At the time the parties were married, defendant already suffered from

Multiple Sclerosis (MS). In 2002, the Social Security Administration (SSA) had

determined that she was disabled. For that reason, defendant was unemployed.

At the time of the trial, plaintiff had been employed full-time since 2013 in a

commission-based job and earned approximately $150,000 annually during the

two years before the trial. However, his paystub for approximately five months

of 2018 reflected that his earnings were $46,644.56 or $112,000 on an

annualized basis. However, by the time the matter was tried, plaintiff decided

to reduce his hours to begin studying psychology and researching parental

alienation. He also reduced his hours at work to prepare for trial in this matter.

Nevertheless, plaintiff contended that his reduced income was based upon his

employer's new commission formula.




                                                                            A-1428-18T4
                                         3
       At the thirteen-day trial, the only expert to testify addressed custody and

parenting time issues relating to the parties' daughter not having contact with

plaintiff. The other witnesses included the parties and several fact witnesses.

       After the lengthy trial, the Family Part judge granted defendant sole legal

custody of the daughter and barred any "parenting time for plaintiff until further

order of the court." As to support, the judge rejected defendant's monthly budget

of approximately $7700 and reduced it to $4300. According to the judge, many

of the defendant's expenses were fictional and her budget did not reflect the

assistance defendant was receiving from her parents while separated from

plaintiff.   The judge concluded that "[l]ooking at [defendant's] budget and

attempting to make it realistic in the face of the [$7700] per month, I find that a

reasonable monthly budget is $4300."

       After imputing income to defendant in the amount of $240 per week, the

judge ordered plaintiff to pay $200 in alimony weekly, deviated from the

Guidelines by ordering $90 per week for child support, and required plaintiff to

maintain medical insurance through his employer, with defendant paying all

unreimbursed medical expenses.

       Defendant filed a motion for reconsideration, arguing that the judge erred

in her calculation of support to be paid by plaintiff when she imputed income to


                                                                           A-1428-18T4
                                        4
defendant and failed to impute income to plaintiff. Defendant also claimed the

judge failed to calculate child support and unreimbursed health expenses

according to the Guidelines.

      In response to defendant's motion, the judge recognized that she did not

give any reasons for deviating from the Guidelines and in an oral decision

clarified that she found good cause, pursuant to Rule 5:6A, to deviate. The judge

reasoned an injustice would occur if plaintiff was required to pay child support

pursuant to the Guidelines because he "is not going to see his child," and the

parents and the child "contributed equally" in the circumstances that led to

granting sole custody to defendant and denying plaintiff any parenting time. The

judge denied defendant's motion to reconsider her calculation of child support

and alimony. This appeal followed.

                                            II.

      Our review of Family Part orders is limited. We accord deference to

Family Part judges due to their "special jurisdiction and expertise in family [law]

matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Therefore, their findings

are binding on appeal so long as their determinations are "supported by

adequate, substantial, credible evidence." Id. at 411-12. Evidence derived from




                                                                           A-1428-18T4
                                        5
testimony is given great deference since the trial judge is better suited to

evaluate the credibility of the witnesses. Id. at 412.

      Only when the trial judge's findings are "so manifestly unsupported by or

inconsistent with the competent, relevant and reasonably credible evidence as to

offend the interests of justice" is reversal warranted. Rova Farms Resort, Inc.

v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp.

of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). "This standard applies

equally to the trial court's decisions regarding alimony [and] child support . . . ."

Lombardi v. Lombardi, 447 N.J. Super. 26, 33 (App. Div. 2016) (citations

omitted).

      However, a "judge's legal conclusions, and the application of those

conclusions to the facts, are subject to [this court's] plenary review."

Spangenberg v. Kolakowski, 442 N.J. Super. 529, 535 (App. Div. 2015)

(quoting Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)). "[A]ll

legal issues are reviewed de novo." Ricci v. Ricci, 448 N.J. Super. 546, 565

(App. Div. 2017).




                                                                             A-1428-18T4
                                         6
                                            III.

                                            A.

      We first address the trial judge's imputation of income to defendant and

not to plaintiff in her calculation of alimony and child support. At the outset,

we agree with defendant that the trial judge mistakenly exercised her discretion

by imputing income to defendant. See Sternesky v. Salcie-Sternesky, 396 N.J.

Super. 290, 307-08 (App. Div. 2007) ("Imputation of income is left to the sound

discretion of the trial judge based on the evidence presented.").

      In reaching her decision, the judge found that defendant receives $2023

monthly from social security because she is disabled due to her MS.

Nevertheless, the judge imputed income to defendant because the judge found

"no medical testimony to that effect was presented." The judge recounted the

symptoms defendant testified she suffered from, which included fatigue, bladder

issues, tremors, and trouble with concentration. The judge observed that "[n]one

of those symptoms were on display in the courtroom during the [thirteen] days

of trial." According to the judge, defendant's behavior during trial did not

support "her claim of her deficiencies and difficulties such that they would

prevent her from being employed." Furthermore, the judge found defendant's

unemployment was voluntary because "there [was] no evidence that she was


                                                                        A-1428-18T4
                                        7
ever told by any medical professional that she should" not work. The judge

determined defendant was not fully disabled through defendant's testimony that

she drives her daughter to various locations. The judge concluded defendant did

not demonstrate "the sedentary lifestyle of a disabled person," and therefore was

capable of working at least twenty hours per week.         However, "[b]ecause

[defendant had] been out of the work force for many years, [defendant] would

probably start at a lower end of the wage scale." For that reason, the judge

imputed $12 per hour or $240 per week.

      The judge later reiterated her ruling in her oral decision rejecting

defendant's motion for reconsideration. There the judge explained she did not

contest the defendant's disability, but that under the holding in Gilligan v.

Gilligan, 428 N.J. Super. 69 (Ch. Div. 2012), a trial court's opinion, an award of

social security disability alone was not sufficient to establish defendant's

inability to work.

      We conclude that the trial judge misapplied the controlling law. We agree

that "[i]ncome may be imputed to a party who is voluntarily unemployed or

underemployed" if the party's actions are "intentional . . . without just cause,"

and that the "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.


                                                                          A-1428-18T4
                                        8
Div. 2001). However, when SSA has determined that a party is disabled, a

presumption of disability is established. Id. at 341-42. When a party has been

adjudicated disabled by the SSA, that determination "constitutes a prima facie

showing that [a party] is disabled, and therefore unable to be gainfully

employed, and the burden shifts to [the opposing party] to refute that

presumption." Id. at 342-43; see also 42 U.S.C. § 423(d)(1)(A) and (2)(A); 1

Diehl v. Diehl, 389 N.J. Super. 443, 451 (App. Div. 2006) ("The determination

of [a litigant's] disability is prima facie evidence of [an] inability to pursue

gainful employment.").

      The evidence a party could present to rebut the presumption of disability

could include "lay testimony, expert testimony[,] or medical records, consistent

with the Rules of Evidence, as the trial court deems appropriate." Golian, 344

N.J. Super at 343. If the opposing party can rebut the presumption of disability,


1
  Disability is defined by the Social Security Act as the "inability to engage in
any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12
months." 42 U.S.C. § 423(d)(1)(A). Under 42 U.S.C. § 423(d)(2)(A), "An
individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in
the national economy."


                                                                         A-1428-18T4
                                       9
the trial court may then impute income to the party receiving disability benefits.

Id. at 341-43.

      The trial judge's reliance in this case on Gilligan was clearly in error. In

Gilligan, a trial court stated, contrary to the shifting burden of proof we

established in Golian, the SSA's declaration that a party was disabled was

insufficient to enable that party to establish a prima facie case of disability.

Gilligan, 428 N.J. Super. at 80-81. The court held even though a party had been

adjudicated as disabled, that party was still required to provide more evidence

to the court "than simply the SSD award letter itself to prove his or her case."

Id. at 73. However, as we specifically stated in Golian, a party's "SSA disability

status . . . result[s] in a presumption of inability to work and the burden should

be on [the opposing party] to rebut that presumption before income can be

imputed to" the party receiving SSD benefits. 344 N.J. Super. at 338 -39. To

the extent the trial court's decision in Gilligan is inconsistent with our ruling in

Golian, we disapprove of it.

      Here, it was undisputed that SSA determined defendant was disabled.

Plaintiff, who had defendant examined and interviewed by his experts during

discovery, failed to adduce any evidence at trial to rebut the presumption of

defendant's disability. Under these circumstances, it was an error for the trial


                                                                            A-1428-18T4
                                        10
judge to have looked to defendant for other evidence that she was disabled or to

base her findings about defendant's disability on her observations of defendant

during the trial as the presumption of disability was never rebutted.

                                             B.

        Turning to defendant's contention about the trial judge's failure to impute

income to plaintiff, here too we disagree with the trial judge.          The judge

determined after the 2018 trial that "[i]n 2017, . . . plaintiff had a gross income

of $150,000," and in 2018 "plaintiff [was] employed and . . . will have an annual

income of approximately $100,000 . . . based on the year-to-date pay stubs

submitted." The judge noted that "because [plaintiff] works on commissions, it

could go up more than that." Rather than relying upon his last few year's income,

the judge considered the family's income during the six years prior to the parties'

separation in 2012, and determined "the family earned a gross income not much

more than $92,000," after apparently attempting to average plaintiff's gross

income over those six years.2 The judge never addressed defendant's contention

that plaintiff was intentionally underemployed.

        On appeal, defendant maintains plaintiff has the ability to earn up to

$150,000. She asserts that plaintiff has not been earning as much because he


2
    Our calculation of that average is closer to $88,000 than $92,000.
                                                                           A-1428-18T4
                                        11
admitted to working less and diverting his efforts to studying psychology,

researching parental alienation, and representing himself during this trial and

related litigation. Defendant relies on our opinions in Elrom v. Elrom, 439 N.J.

Super. 424 (App. Div. 2015), and Platt v. Platt, 384 N.J. Super. 418 (App. Div.

2006), to argue the judge should have averaged plaintiff's earnings of those two

years prior to trial and imputed additional income to him.

      Plaintiff asserts that it was only during the two years prior to trial that he

was able to earn the significant income as argued by defendant. Plaintiff also

contends that a change in the commission rate at his employment, which he

testified to at trial, warranted a finding that he is not voluntarily underemployed.

      We conclude that the trial judge erred by not including plaintiff's earnings

during the years just prior to the trial when determining whether he was earning

income commensurate with his earning capacity.            Trial judges must first

consider the parties marital lifestyle to determine the amount needed for support

and then consider the paying spouse's earning capacity to determine that spouse's

ability to pay. See Lombardi, 447 N.J. Super. at 37 ("'The importance of

establishing the standard of living experienced during the marriage cannot be

overstated.' It is the 'touchstone for the initial alimony award.'" (citations

omitted) (quoting Crews v. Crews, 164 N.J. 11, 16 (2000))).                In their


                                                                            A-1428-18T4
                                        12
determination of whether a party has the ability to pay support, t rial judges are

required to consider, as of the trial date, the "potential earning capacity of an

individual, not his or her actual income." Caplan v. Caplan, 182 N.J. 250, 268

(2005) (quoting Halliwell v. Halliwell, 326 N.J. Super. 442, 448 (App. Div.

1999)); see also Gnall v. Gnall, 432 N.J. Super. 129, 159 (App. Div. 2013)

("Both when setting child support and in reaching a proper alimony award, a

judge must examine not only each party's income, but also his or her earning

ability."), rev'd on other grounds, 222 N.J. 414 (2015).

      When there are substantial variations in the income of a party, it is not

unreasonable for a trial court to use income averaging when determining a

party's ability to pay alimony, which must include the years after a complaint is

filed and before a divorce is finalized. See Platt, 384 N.J. Super. at 426 (noting

that it was logical and reasonable to average defendant's income over a five-year

period for purposes of calculating alimony and child support where husband was

self-employed and "chose to drastically reduce his personal income"). However,

a trial court errs when it fails to consider actual income leading up to the trial

when determining whether a party has the ability to pay support. See Lynn v.

Lynn, 165 N.J. Super. 328, 341 (App. Div. 1979) (explaining that a party's




                                                                          A-1428-18T4
                                       13
"earning capacity or prospective earnings" should also be considered in addition

to the party's current income).

      If a court is satisfied that a party is not earning at his or her capacity it

then can impute income if, as already noted, it finds voluntary underemployment

without just cause. Golian, 344 N.J. Super. at 341. "Inherent in a finding of

'underemployment' is the notion the obligor is intentionally failing to earn that

which he or she is capable of earning." Dorfman v. Dorfman, 315 N.J. Super.

511, 516 (App. Div. 1998).

      "Imputation 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 availability." Storey v. Storey, 373 N.J. Super. 464,

474 (App. Div. 2004). "In making that decision, the court should consider the

employment status and earning capacity of [the party] had the family remained

intact [and] the reason for and intent behind the voluntary underemployment or

unemployment." Caplan, 182 N.J. at 268; see also Child Support Guidelines,

Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at ¶

12(a), www.gannlaw.com (2019).

      Here, the trial judge did not assess plaintiff's earning capacity or his

current earnings in her determination of plaintiff’s ability to pay support.


                                                                           A-1428-18T4
                                       14
Inexplicably, the judge ignored plaintiff's current earnings and relied upon six

years of income that plaintiff earned prior to the parties separating, which was

more than five years before the trial date. Again, under these circumstances, we

are constrained to remand the issue of support for the trial judge’s

reconsideration.

                                           IV.

      Next, we address the trial judge's determination of the amount of support

needed by defendant. At trial, defendant testified to her Case Information

Statement's budget and to the assistance she received from her parents while

living with them. In her decision, the trial judge found "[t]he parties lived an

average lifestyle. An average, comfortable lifestyle. Not the upper middle-class

lifestyle claim[ed] by . . . defendant." She addressed defendant's budget and

characterized it as "a work of fiction" and identified expenses she found

excessive. In addition, the judge compared the expenses to plaintiff's earnings

while the parties lived together six years earlier and concluded that "[i]f . . .

defendant was actually spending [$7700] a month during those years, it is no

wonder that the family had financial difficulties." The judge then reduced

defendant's budget to $4300 per month, without any explanation as to how she

calculated that amount.


                                                                         A-1428-18T4
                                      15
      As noted, we review a trial judge's support determinations for an abuse of

discretion. In order to perform our review, we must be provided with adequate

reasons for the trial judge's determinations. "Rule 1:7-4 requires a judge to

provide findings of fact and conclusions of law on every [decision] decided by

a written order that is appealable by right. . . . The omission of critical factual

findings, . . . impedes our review and requires a remand limited to this issue."

Elrom, 439 N.J. Super. at 443 (first alteration in original) (citations omitted).

When a trial judge issues reasons for a decision, it "must state clearly [her]

factual findings and correlate them with relevant legal conclusions, so that

parties and the appellate courts [are] informed of the rationale underlying th[ose]

conclusion[s]." Avelino-Catabran v. Catabran, 445 N.J. Super. 574, 594-95

(App. Div. 2016) (second, third, and fourth alterations in original) (quoting

Monte v. Monte, 212 N.J. Super. 557, 565 (App. Div. 1986)).

      On the record before us, we are again constrained to remand the matter

for an explanation as to how the trial judge determined defendant's needs were

to be fixed at $4300 per month as the judge failed to provide us with any

calculations supporting her determination.




                                                                           A-1428-18T4
                                       16
                                           V.

      Last, we consider the trial judge's deviation from the Guidelines by

ordering $90 per week for support and requiring defendant to be solely

responsible for all uncovered medical expenses for the child.3 As noted, the

judge explained on reconsideration that she deviated from the Guidelines

because plaintiff was not granted any parenting time.      That reasoning was

without any support.

      Rule 5:6A requires a trial judge to employ the Guidelines when

establishing child support unless "good cause is shown." When deciding the

amount of child support, a judge must apply the Guidelines for incomes up to

$187,200, and then for higher income families, apply the statutory factors under

N.J.S.A. 2A:34-23(a) to calculate an additional discretionary amount to be

added if warranted. See Pascale v. Pascale, 140 N.J. 583, 593-94 (1995); Caplan

v. Caplan, 364 N.J. Super. 68, 78, 84-86 (App. Div. 2003); see also Child

Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix

IX-A to R. 5:6A at ¶ 20, www.gannlaw.com (2019).



3
  Under the Guidelines, "health care expenses in excess of $250 per year should"
be divided between the parties in proportion to each parent's income. Child
Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix
IX-A to R. 5:6A at ¶ 27, www.gannlaw.com (2019).
                                                                        A-1428-18T4
                                      17
      "If a [judge] determines deviation from the guidelines is appropriate, [the

judge] must nevertheless calculate the guidelines-based support award and state

the specific findings justifying its deviation therefrom—specifically, why

deviation is in the best interests of the child." Avelino-Catabran, 445 N.J. Super.

at 594. "If the [G]uidelines are found inapplicable . . . the court should consider

the factors set forth in N.J.S.A. 2A:34-23 or N.J.S.A. 9:17-53 when establishing

the child support award."     Child Support Guidelines, Pressler & Verniero,

Current N.J. Court Rules, Appendix IX-A to R. 5:6A at ¶ 3, www.gannlaw.com

(2019).

      A reduction or elimination of parenting time is not good cause to deviate

from the Guidelines because the Guidelines factor in the amount of time each

parent spends with the child when determining the support obligations. Further,

any injustice caused by the failure of a party's relationship with his or her child

is not remedied by a reduction in support. The injustice must be viewed from

the perspective of the child, not the supporting parent because "[i]n all cases,

the decision to deviate from the [G]uidelines shall be based on the best interests

of the child." Child Support Guidelines, Pressler & Verniero, Current N.J. Court

Rules, Appendix IX-A to R. 5:6A at ¶ 21, www.gannlaw.com (2019); see also

Pascale, 140 N.J. at 594.


                                                                           A-1428-18T4
                                       18
      The judge here did not take into consideration the best interests of the

child when she reduced support below the Guidelines because there was no

parenting time ordered.     Contrary to the trial judge's determination, the

Guidelines contemplate a non-custodial parent's support obligation being

reduced if the parent spends more time than contemplated by the initial award

to reflect additional costs being assumed by the non-custodial parent during the

time spent with child. See Child Support Guidelines, Pressler & Verniero,

Current N.J. Court Rules, Appendix IX-A to R. 5:6A at ¶ 13(d), 14,

www.gannlaw.com (2019). In any event, once the judge deviated from the

Guidelines, she was required to establish the Guideline amount, apply the

statutory factors under N.J.S.A. 2A:34-23 or N.J.S.A. 9:17-53, and then explain

her reasons for deviating in writing. That did not occur here.

      Since the trial judge incorrectly reduced plaintiff's support obligation

based upon his lack of any parenting time, on remand, the trial judge must

recalculate child support in accordance with the Guidelines.       If the judge

deviates from the Guidelines, she must make specific findings in writing that

support a deviation and establish support in accordance with the statutory

factors.




                                                                        A-1428-18T4
                                      19
      The order denying reconsideration is reversed. The alimony and child

support ordered in the FJOD is vacated and remanded for reconsideration.

      Reversed in part, vacated in part, and remanded for further proceedings

consistent with our opinion. We do not retain jurisdiction.




                                                                      A-1428-18T4
                                      20
