                                NOT FOR PUBLICATION WITHOUT THE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-5236-16T4

C.J.,

          Plaintiff-Respondent/
          Cross-Appellant,

v.

D.J.,

     Defendant-Appellant/
     Cross-Respondent.
___________________________

                    Argued telephonically February 15, 2019 –
                    Decided April 1, 2019

                    Before Judges Gilson and Natali.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Union County, Docket
                    No. FM-20-0002-10.

                    James C. Jensen argued the cause for appellant/cross-
                    respondent (Laufer, Dalena, Cadicina, Jensen & Boyd,
                    LLC, attorneys; James C. Jensen, of counsel and on the
                    briefs).
              Salvatore A. Simeone argued the cause for
              respondent/cross-appellant (Weiner Law Group, LLP,
              attorneys; Salvatore A. Simeone, on the brief).

PER CURIAM

        In this post-divorce-judgment matter, defendant D.J., the former husband,

appeals from a provision of a December 22, 2016 order denying his motion to

reduce his alimony obligation to plaintiff C.J., his former wife. 1 Defendant also

appeals from a July 10, 2017 order denying reconsideration. Plaintiff cross -

appeals from the provision of the July 10, 2017 order denying her request for

attorney's fees on the motion for reconsideration. Having reviewed the parties'

arguments in light of the record, we reverse the provisions of the orders that

denied defendant's motion to reduce his alimony obligation and remand for a

plenary hearing on that issue. We affirm the denial of plaintiff's request for an

award of attorney's fees on the motion for reconsideration.

                                          I.

        The parties were married in September 1988, and divorced in February

2007. They have two children: a son born in July 1995, and a daughter born in

December 1997.




1
    We use initials to protect the parties' privacy interests. See R. 1:38-3(d).
                                                                             A-5236-16T4
                                          2
      At the time of their divorce, the parties entered into a marital settlement

agreement (MSA), which was incorporated into their judgment of divorce. In

the MSA, defendant agreed to pay plaintiff "permanent" alimony of $120,000

per year. That alimony was based on "the imputation of a gross earned income

of $450,000 to Husband and $50,000 to Wife." The MSA states that defendant's

alimony obligation could be reduced if his income "involuntarily drop[s] below

the amount of $450,000 for one year[.]" Specifically, the MSA provides:

            [I]t is agreed that Husband's support obligation is based
            upon a minimum annual gross income of $450,000.
            Recognizing the volatility of his industry and the
            inherent insecurity of employment, particularly given
            the fact that Husband's company is engaged in a merger
            and employee "attrition" may be substantial, it is
            further agreed that should Husband's gross income
            involuntarily drop below the amount of $450,000 for
            one year, it will be deemed a change of circumstances
            sufficient to justify Husband's application for a
            reduction, but shall not constitute prima facie evidence
            of Husband's entitlement to such a reduction, which the
            parties acknowledge will be dependent upon additional
            factors.

      Both parties also acknowledged in the MSA that, "[i]n connection with

the payment, modification or termination of alimony[,]" they had been advised

of the statute and case law governing the establishment, modification, or

termination of alimony. In that regard, the MSA cited to Lepis v. Lepis, 83 N.J.

139 (1980); Crews v. Crews, 164 N.J. 11 (2000); Morris v. Morris, 263 N.J.

                                                                         A-5236-16T4
                                       3
Super. 237 (App. Div. 1993); Weishaus v. Weishaus, 360 N.J. Super. 281 (App.

Div. 2003), rev'd in part and aff'd in part, 180 N.J. 131 (2004); and the statutory

factors set forth in N.J.S.A. 2A:34-23.

      In April 2015, defendant filed a motion to reduce his support obligations. 2

In support of that motion, defendant represented that in May 2013, he had been

terminated from his long-term employment at the Bank of New York Mellon

(Bank of N.Y.). He also submitted a case information statement (CIS), attaching

his 2014 federal tax return. Defendant asserted that his income had dropped

below $450,000. His 2014 tax return listed his "total income" as $377,333. The

tax return also included Form 1116, which listed defendant's "gross income" in

2014 as $462,275. The majority of defendant's income in 2014 was listed as

coming from a financial and business consulting firm defendant had established.

      Plaintiff opposed defendant's motion to reduce his alimony obligation.

She contended that defendant had been terminated from Bank of N.Y. for

misconduct and, thus, his termination was not involuntary. She also argued that

his income had not dropped below $450,000. In that regard, she pointed out that

one of his 2014 tax forms listed his income as $462,275. She also contended


2
   In his motion, defendant sought relief beyond reduction of his alimony
obligation. On this appeal, however, defendant has limited his arguments to
challenging the denial of his motion to reduce his alimony obligation.
                                                                           A-5236-16T4
                                          4
that defendant's income from his consulting business appeared to have been

derived from his service as a director of a supermarket company.

      In July 2015, the family court heard oral argument on defendant's 2015

motion, but did not conduct an evidentiary hearing. Based on the papers filed

by the parties, the court found that defendant had not established that his income

had fallen below $450,000 for a year. The court also held that defendant's

termination from Bank of N.Y. was voluntary because it resulted from

defendant's misconduct. Thus, in an order entered on July 9, 2015, the court

denied defendant's motion to reduce his support obligations.

      Defendant filed a motion for reconsideration, which was denied in an

order entered on December 2, 2015, accompanied by a written opinion. In that

written opinion the judge clarified that, based on defendant's 2014 tax return, he

had found defendant's 2014 income to be either $377,333 or $462,275 and, thus,

he had denied defendant's motion. Three weeks later, on December 22, 2015,

defendant filed a notice in the Appellate Division to appeal the order of

December 2, 2015. Plaintiff filed a cross-appeal challenging the denial of her

request for attorney's fees.

      In May 2016, defendant filed another motion before the family court to

reduce his support obligations. Because his appeal of the December 2, 2015


                                                                          A-5236-16T4
                                        5
order was still pending, defendant eventually dismissed that appeal so that he

could pursue his new motion. Plaintiff also voluntarily dismissed her cross-

appeal of the December 2, 2015 order.

      In support of his May 2016 motion, defendant filed a new CIS, which

attached his 2015 tax return. He claimed that his total income in 2015 was

$160,610, and his adjusted gross income was a negative $10,888, primarily

because he had paid plaintiff $120,000 in alimony. Defendant also represented

that his net worth had declined by over $426,000, from $2,131,356 in 2014 to

$1,704,572 in 2015.     Defendant also submitted a certification in which he

disputed that his termination from Bank of N.Y. was voluntary, represented that

he had searched for other employment, and contended that he expected that his

future income would be approximately $150,000 to $175,000 per year, which he

expected to earn from his consulting business.

      Plaintiff opposed defendant's May 2016 motion and she cross-moved to

recover her attorney's fees. Following an unsuccessful mediation, a different

family judge decided the 2016 motions on the papers.        That judge denied

defendant's motion in an order entered on December 22, 2016. The judge also

issued a letter opinion explaining his decision.




                                                                       A-5236-16T4
                                        6
      In essence, the family court found that the motion defendant filed in May

2016 was "substantially the same" motion presented to and denied by a different

family judge in 2015. Relying on our decision in Donnelly v. Donnelly, 405

N.J. Super. 117 (App. Div. 2009), the second family judge reasoned that the

rulings in July 2015 and December 2015 were "law of the case." Moreover, the

second judge found that defendant had failed to submit "additional information

or facts," beyond what had been submitted in 2015, to establish a prima facie

showing of a change in his financial circumstances. In an order dated January

9, 2017, the court granted plaintiff's cross-motion for attorney's fees and

awarded her $13,288.50.

      On January 30, 2017, defendant filed a notice of motion to reconsider the

December 22, 2016 order. The parties again attended mediation, but mediation

was not successful. Plaintiff, thereafter, cross-moved for attorney's fees on the

motion for reconsideration.

      On July 10, 2017, the same family judge who issued the December 22,

2016 order denied defendant's motion for reconsideration.       The judge also

denied plaintiff's request for attorney's fees in opposing the motion for

reconsideration. The judge issued a written statement of reasons exp laining his

rulings. In short, the judge found that defendant had not presented any new


                                                                         A-5236-16T4
                                       7
arguments on reconsideration and the judge denied the motion for the reasons

explained in the court's December 22, 2016 letter opinion.

      Defendant now appeals from the portions of the December 22, 2016 and

July 10, 2017 orders that denied his motion to reduce his alimony obligation.

Plaintiff cross-appeals from the provision of the July 10, 2017 order that denied

her request for attorney's fees incurred in opposing the motion for

reconsideration.

                                        II.

      A motion to modify an alimony obligation "rests upon its own particular

footing and [we] must give due recognition to the wide discretion which our law

rightly affords to the trial judges who deal with these matters." Larbig v. Larbig,

384 N.J. Super. 17, 21 (App. Div. 2006) (quoting Martindell v. Martindell, 21

N.J. 341, 355 (1956)).        Consequently, "we accord great deference to

discretionary decisions of Family Part judges." Milne v. Goldenberg, 428 N.J.

Super. 184, 197 (App. Div. 2012) (citing Donnelly, 405 N.J. Super. at 127). We

generally defer to factual findings made by a family court when such findings

are supported by substantial and credible evidence. Gnall v. Gnall, 222 N.J.

414, 428 (2015) (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). In

contrast, "trial judge[s'] legal conclusions, and the application of those


                                                                           A-5236-16T4
                                        8
conclusions to the facts, are subject to our plenary review." Reese v. Weis, 430

N.J. Super. 552, 568 (App. Div. 2013) (citing Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

      Several well-established principles govern whether a court should modify

or terminate alimony. First, if the parties had originally agreed to the amount

and conditions of alimony, that agreement should be enforced like any other

settlement agreement.     Quinn v. Quinn, 225 N.J. 34, 44-46 (2016).             "A

settlement agreement is governed by basic contract principles." Id. at 45 (citing

J.B. v. W.B., 215 N.J. 305, 326 (2013)). Accordingly, a court's role is to "discern

and implement the intentions of the parties" as expressed in the agreement. Ibid.

(citing Pacifico v. Pacifico, 190 N.J. 258, 266 (2007)).

      Second, unless the parties have agreed otherwise, alimony "may be

revised and altered by the court from time to time as circumstances may require."

N.J.S.A. 2A:34-23. To justify a modification or termination, the moving party

must show "changed circumstances." Lepis, 83 N.J. at 146. In Lepis, the Court

recognized a non-exhaustive list of factors that give rise to changed

circumstances warranting modification or termination of alimony. Id. at 151-

52. Similarly, in N.J.S.A. 2A:34-23(k) and (l), the Legislature identified factors

a court needs to consider when a party seeks to modify alimony. Those factors


                                                                           A-5236-16T4
                                        9
include, among other things, the financial circumstances of the parties, whether

the change in circumstances is temporary or permanent, whether the change was

voluntary, whether it was motivated by bad faith or a desire to avoid payment,

and whether the change in circumstances renders the payor unable to meet the

alimony obligation. See N.J.S.A. 2A:34-23(k) to (l); see also Lepis, 83 N.J. at

151-52; Larbig, 384 N.J. Super. at 22-23; Glass v. Glass, 366 N.J. Super. 357,

370-71 (App. Div. 2004).

      Third, in appropriate circumstances, a party may be bound by findings

made on prior motions to modify, reduce, or terminate alimony. See Donnelly,

405 N.J. Super. at 127-28. Accordingly, if a party makes a motion to change

alimony and the family court makes factual findings regarding that motion, the

parties may be bound by those findings in a subsequent motion if circumstances

have not changed. For example, in Donnelly, a former husband moved to reduce

his support obligations. The husband had previously filed a motion to reduce

his obligations, the court had conducted a plenary hearing, made factual

findings, and denied the first motion. On the second motion, we recognized that

the family judge "was not required to wipe the slate clean" and the judge could

consider the factual findings made on the first motion if there was a limited




                                                                        A-5236-16T4
                                      10
passage of time between the motions and if the moving party presented no new

material information showing a change of circumstances. Ibid.

      Applying our standard of review and the legal principles governing

alimony, we are constrained to remand for a plenary hearing to address whether

defendant has established a change of circumstances warranting a reduction in

his alimony obligation.   In support of his motion filed in 2016, defendant

submitted a new CIS and his 2015 tax returns. The federal tax return showed

that defendant's total income in 2015 was $160,610.         That income figure

establishes the showing required by the parties' MSA because defendant's

identified income for the full year of 2015 was below $450,000.

      Obviously, plaintiff was and is entitled to dispute whether defendant's

income had truly fallen below $450,000 for a full year, and whether that

reduction was "involuntary." In that regard, plaintiff challenges defendant's

failure to find employment that could have provided him with a salary equivalent

to what he was earning at Bank of N.Y. Those disputes, however, are genuine

factual disputes that require discovery and resolution at a plenary evidentiary

hearing. See Segal v. Lynch, 211 N.J. 230, 264-65 (2012).

      Moreover, the CIS and certification defendant filed in support of his 2016

motion were materially different from the information he had submitted in


                                                                        A-5236-16T4
                                      11
support of his motion filed in 2015. Most significantly, defendant had supplied

an updated CIS and his 2015 tax returns. Defendant's 2014 tax return identified

his income as either $377,333 or $462,275. In contrast, his 2015 federal tax

return identified his income as $160,610. Furthermore, defendant submitted a

certification contending that he had diligently searched for alternative

employment, but, given his age, he had not been offered a position that would

allow him to earn income equivalent to what he had earned at Bank of N.Y.

      In addition, the question of a voluntary or involuntary drop in income was

different in the 2016 motion compared to the 2015 motion. In the 2015 motion,

the question was whether defendant's termination from Bank of N.Y. was

voluntary or involuntary. Defendant lost his job at Bank of N.Y. in 2013. Thus,

in the 2015 motion, the focus was comparing his income from 2013 to 2014.

      In the 2016 motion, the question was whether defendant's drop in income

from 2014 to 2015 was voluntary or involuntary. Defendant represented that in

2014 and 2015, he derived his income from his consulting business and from

work he performed as a director of a supermarket company. Again, plaintiff is

entitled to dispute whether defendant's income voluntarily or involuntarily

dropped between 2014 and 2015. Resolution of that material factual dispute,

however, will require discovery and a plenary hearing.


                                                                        A-5236-16T4
                                      12
      Both parties argue that the rulings on the 2015 motion establish "law of

the case" that bound the second family judge in ruling on the 2016 motions. We

disagree. The law-of-the-case doctrine generally applies to definitive rulings

made on an earlier motion. See Lombardi v. Masso, 207 N.J. 517, 539 (2011).

The doctrine "is a non-binding rule intended 'to prevent relitigation of a

previously resolved issue.'" Jacoby v. Jacoby, 427 N.J. Super. 109, 117 (App.

Div. 2012) (quoting In re Estate of Stockdale, 196 N.J. 275, 311 (2008)). "When

applicable, it prohibits 'a second judge on the same level, in the absence of

additional developments or proofs, from differing with an earlier ruling[.]'"

Ibid. (alteration in original) (quoting Hart v. City of Jersey City, 308 N.J. Super.

487, 497 (App. Div. 1998)).

      The law-of-the-case doctrine was not applicable here. The decision on the

motion in 2015 was not a definitive ruling. Instead, it was a ruling made on the

papers based on the submissions filed in 2015. In moving in 2016, defendant

submitted an additional year's worth of income and employment information.

Thus, there were additional "proofs" for the court to consider in 2016.

      We fully appreciate the second family judge's concern that defendant had

filed his 2016 motion shortly after the denial of his motion for reconsideration

of the 2015 motion. In that regard, it is appropriate to consider the duration of


                                                                            A-5236-16T4
                                        13
the alleged change in circumstance and whether that change is only temporary.

See Lepis, 83 N.J. at 151; Larbig, 384 N.J. Super. at 22-23; Donnelly, 405 N.J.

Super. at 127-29. Here, however, the judge who heard and decided the 2015

motion did not conduct a plenary hearing. In contrast, in Donnelly, the family

court had conducted a plenary hearing on the first motion. 405 N.J. Super. at

122-23. Findings made following a plenary hearing are entitled to substantial

weight. See Cesare, 154 N.J. at 411-13. Findings made without an evidentiary

hearing, however, may not be entitled to the same amount of weight if there are

subsequent changes of circumstances. See Bisbing v. Bisbing, 445 N.J. Super.

207, 213 (App. Div. 2016) (declining to defer to a family court's decision where

that court "did not hold a plenary hearing").

      In summary, the motion defendant filed in 2016 presented genuine issues

of material fact disputes concerning whether his income had fallen below

$450,000 for a year, whether the drop in income was the result of voluntary or

involuntary actions, and whether defendant can establish the other factors

entitling him to a reduced alimony obligation. We, therefore, reverse the portion

of the orders entered on December 22, 2016, and July 10, 2017, that denied

defendant's motion to reduce his alimony obligation. Furthermore, we remand

for a plenary hearing. In connection with the plenary hearing, the family court


                                                                         A-5236-16T4
                                      14
can allow appropriate discovery and should require defendant to file an analysis

concerning his self-employment. See N.J.S.A. 2A:34-23(l).

      Finally, on plaintiff's cross-appeal, we affirm the denial of her request for

attorney's fees incurred in opposing the motion for reconsideration. The family

court set forth the appropriate analysis in denying that fee request. See R. 5:3-

5(c); R. 4:42-9; N.J.S.A. 2A:34-23. We discern no abuse of discretion in that

decision. See Slutsky v. Slutsky, 451 N.J. Super. 332, 365-66 (App. Div. 2017).

Moreover, having reversed the portion of the July 10, 2017 order that denied

reconsideration on the motion to reduce defendant's alimony obligation, plaintiff

is no longer the prevailing party on that portion of the motion.

      Reversed in part, affirmed in part, and remanded for further proceedings. 3

We do not retain jurisdiction.




3
  The orders entered on July 9, 2015, and December 2, 2015, were not part of
this appeal. Accordingly, nothing in this decision affects those orders.
                                                                           A-5236-16T4
                                       15
