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

NOT FOR PUBLICATION WITHOUT THE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In an unpublished opinion, we affirmed the JOD support awards and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)

A-5990-17T2
2
(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.
A-5990-17T2
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.
A-5990-17T2
4
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
5
 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
6
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
8
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
9
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
10
 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
11
 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

A-5990-17T2
12
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
13
 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
14
 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
15
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
16
 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
18
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
19
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
20
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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