                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-3931-14T3


NANCY E. LANDERS,
                                       APPROVED FOR PUBLICATION
     Plaintiff-Appellant,
                                           February 22, 2016

v.                                         APPELLATE DIVISION

PATRICK J. LANDERS,

     Defendant-Respondent.
_______________________________

          Argued January 11, 2016 - Decided February 22, 2016

          Before Judges Lihotz, Fasciale and Higbee.

          On appeal from Superior Court of New Jersey,
          Chancery Division, Family Part, Gloucester
          County, Docket No. FM-08-5949-91.

          Allison H. Lamson argued the cause for
          appellant (Adinolfi and Lieberman, P.A.,
          attorneys; Ms. Lamson, on the brief).

          Charles A. Fiore argued the cause for
          respondent (Law Offices of Charles A. Fiore,
          attorneys; Mr. Fiore, on the brief).

     The opinion of the court was delivered by

LIHOTZ, P.J.A.D.

     In this matter, we clarify the application of the newly

enacted alimony statute amendments, addressing modification of

alimony   when   an   obligor   retires.      N.J.S.A.    2A:34-23(j).

Plaintiff Nancy E. Landers appeals from a March 27, 2015 Family
Part   order       terminating      the    alimony   obligation   of   defendant

Patrick J. Landers as a result of his retirement.                      Plaintiff

argues      the    motion   judge    incorrectly     applied   N.J.S.A.     2A:34-

23(j)(1), which is limited to awards entered after the effective

date   of    the    amended   statute,      rather   than   subsection    (j)(3),

which governs review of final alimony awards established prior

to the effective date of the statutory amendments.                We agree and

conclude the order must be vacated and the matter remanded for

further review.

       The facts are not disputed.               A final judgment of divorce

(FJOD) was filed on June 24, 1991, ending the parties' twenty-

two year marriage.          In addition to dissolving the marriage, the

FJOD addressed the collateral issues arising upon divorce that

were resolved by consent of the parties.

       Among the provisions in the FJOD, defendant was ordered to

pay a declining amount of unallocated support for plaintiff and

the unemancipated children.1              As of December 1, 2001, defendant's

obligation was $1000 per month.2                Defendant paid as ordered and

accumulated no arrearages.            Post-judgment litigation was minimal

1
     The FJOD does not include information regarding                            the
parties' income or lifestyle.        Nor does it explain                        the
methodology underpinning the support calculations.
2
     The FJOD provided: "Alimony shall automatically terminate
upon the death of either party, or the remarriage of plaintiff."
No reference is made to defendant's retirement.



                                            2                             A-3931-14T3
and   there   is    no     evidence    either    party     filed     to      enforce

litigant's rights.

      Following     defendant's     sixty-sixth    birthday,       he     moved     to

terminate his alimony obligation, which lasted for twenty-four

years.     Defendant       explained   his   income      consisted      of    social

security retirement (SSR) benefits and the pension he received

as part of the equitable distribution of marital assets at the

time of divorce.3        Defendant asserted plaintiff remained employed

and was collecting social security retirement, qualifying as his

former spouse.

      Defendant outlined his medical conditions, which directly

impacted his decision to retire, including surgery, described as

one of a series of procedures to preserve his ability to walk

after suffering a foot and leg injury.                Additionally, he is a

cancer   survivor    and    takes   medication     for   chronic     conditions.

Defendant attached documentation supporting his income prior to

retirement,   his     retirement       receipts,    and     monthly       expenses




3
     Plaintiff's certification acknowledges defendant's pension
solely was earned during a prior period of employment, which
terminated before entry of the FJOD. We conclude no portion of
this asset may be considered when reviewing alimony.    N.J.S.A.
2A:34-23(b) ("When a share of a retirement benefit is treated as
an asset for purposes of equitable distribution, the court shall
not consider income generated thereafter by that share for
purposes of determining alimony.").



                                        3                                    A-3931-14T3
incurred for himself and his current spouse that were set forth

in a Family Part case information statement (CIS).

      Plaintiff       responded      and    filed    a   cross-motion,          seeking

continuation     of    alimony      and    maintenance      of    a   life   insurance

policy, insuring defendant's life for her benefit.                      She detailed

her   chronic    medical      conditions,       attached         documentation,       and

identified      her     ongoing      surgery        needs    to       address        these

conditions.       Plaintiff's         monthly       income       consisted      of     her

derivative    share     of    SSR   as     defendant's      former     spouse     and    a

social security disability (SSD) award, effective May 1, 2009.4

She    attached       1099s      from       2014,     recording         earnings        of

approximately $2500 as a consultant, a partially completed CIS,

a 2009 residential lease agreement with her son, and proof of a

car payment.      Plaintiff acknowledged she realized $113,000 from

the sale of the former marital home, awarded to her under the

terms of the FJOD, but explained her subsequent realty purchase

using the funds resulted in a loss.

      Plaintiff urged the need for alimony remained and argued

the award was not modifiable, citing the legislative statement

accompanying     recent      statutory       amendments      and      suggesting      the

4
     The SSD award was issued on August 22, 2012.      Plaintiff
also should have received a lump sum payment for the period
representing the date of disability, May 1, 2009, to the date of
the award, August 22, 2012.   This document was not included in
the record.



                                            4                                   A-3931-14T3
provisions do not affect the terms of a FJOD entered prior to

September 10, 2014, the effective date of the amendments.

    The Family Part judge issued a tentative disposition after

reviewing the written submissions.                       See R. 5:5-4(e) (describing

tentative disposition procedure).                    He considered oral arguments

advanced by the parties and issued an order accompanied by a

written    memorandum.              The   judge    rejected      plaintiff's   argument

suggesting modification was precluded and analyzed defendant's

request    by    applying          the    rebuttable      statutory   presumption     and

factors     outlined          in     N.J.S.A.       2A:34-23(j)(1).           Concluding

plaintiff       failed    to        overcome       the    presumption   that     alimony

terminates      when     an    obligor       attains      full   retirement    age,   the

judge noted plaintiff did not supply her income tax returns,

listed no assets on her CIS, and did not address her ability to

save for retirement during the twenty-four years following the

divorce.

    The order memorializing the decision granted defendant's

motion and denied plaintiff's cross-motion.                        Plaintiff moved to

stay the order, which was also denied, as was her request for

emergent relief filed with this court.

    In our review of a Family Part judge's motion order, we

defer to factual findings "supported by adequate, substantial,

credible evidence" in the record.                   Gnall v. Gnall, 222 N.J. 414,




                                               5                                A-3931-14T3
428 (2015).     Reversal is warranted when we conclude a mistake

must have been made because the trial court's factual findings

are   "manifestly      unsupported        by       or     inconsistent      with      the

competent,    relevant    and    reasonably             credible    evidence     as    to

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

v. Investors 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.),   certif.    denied,     40   N.J.      221      (1963)).      However,      when

reviewing legal conclusions, our obligation is different; "[t]o

the extent that the trial court's decision constitutes a legal

determination, we review it de novo."                    D'Agostino v. Maldonado,

216 N.J. 168, 182 (2013).

      On appeal, plaintiff argues the judge improperly followed

the   statutory    provisions        of   N.J.S.A.         2A:34-23(j)(1),         which

incorrectly   placed     the    burden        of   proof    on     her,   rather   than

defendant, and also omitted the necessary analysis of important

applicable factors.        This statutory interpretation question is

a legal issue subject to our plenary review.                     Reese v. Weis, 430

N.J. Super. 552, 568 (App. Div. 2013).

      The award of "[a]limony in New Jersey is primarily governed

by statute." Gayet v. Gayet, 92 N.J. 149, 150 (1983); see also

N.J.S.A. 2A:34-23(b).          Similarly, the authority of the Family




                                          6                                    A-3931-14T3
Part to modify an existing alimony order is expressed in the

preamble to N.J.S.A. 2A:34-23, which provides in pertinent part:

          [A]fter judgment of divorce . . . the court
          may make such order as to the alimony or
          maintenance of the parties, . . . as the
          circumstances of the parties and the nature
          of the case shall render fit, reasonable and
          just . . . . Orders so made may be revised
          and altered by the court from time to time
          as circumstances may require.

    Prior      to    recent     amendments,         which     became    effective      on

September 10, 2014, "[o]ur courts have interpreted this statute

to require a party who seeks modification to prove 'changed

circumstances[.]'"         Spangenberg v. Kolakowski, 442 N.J. Super.

529, 536 (App. Div. 2015) (alteration in original) (quoting

Lepis v. Lepis, 83 N.J. 139, 157 (1980)).                       More specifically,

the party moving for modification "must demonstrate that changed

circumstances have substantially impaired the ability to support

himself or herself."           Lepis, supra, 83 N.J. at 157.

    An    income       reduction      resulting          from     a     "good        faith

retirement" after age sixty-five is a well-recognized change of

circumstances        event,     prompting       a     detailed     review       of    the

financial situation facing the parties to evaluate the impact

retirement     has    on   a    preexisting         alimony    award.      Silvan       v.

Sylvan, 267 N.J. Super. 578, 581 (App. Div. 1993) (identifying

factors   to    be     considered     in       analyzing       whether    retirement




                                           7                                    A-3931-14T3
justifies alimony modification); see also Deegan v. Deegan, 254

N.J. Super. 350, 357-58 (App. Div. 1992).

    The 2014 amendments added a new subsection (j), which lists

objective considerations a judge must examine and weigh when

reviewing an obligor's request to modify or terminate alimony

when an obligor retires.    L. 2014, c. 42, § 1.        The newly

enacted provisions state, in pertinent part:

          Alimony may be modified or terminated upon
          the prospective or actual retirement of the
          obligor.

          (1) There shall be a rebuttable presumption
          that alimony shall terminate upon the
          obligor spouse or partner attaining full
          retirement age, except that any arrearages
          that have accrued prior to the termination
          date shall not be vacated or annulled. The
          court   may    set  a   different   alimony
          termination date for good cause shown based
          on specific written findings of fact and
          conclusions of law.

          The rebuttable presumption may be overcome
          if, upon consideration of the following
          factors and for good cause shown, the court
          determines that alimony should continue:

              (a) The ages of the parties at
              the time of the application for
              retirement;

              (b) The ages of the parties at
              the time of the marriage or civil
              union and their ages at the time
              of entry of the alimony award;

              (c)   The degree and duration of
              the   economic dependency of the




                               8                          A-3931-14T3
    recipient upon the payor during
    the marriage or civil union;

    (d) Whether    the   recipient   has
    foregone    or    relinquished    or
    otherwise     sacrificed     claims,
    rights or property in exchange for
    a   more  substantial    or   longer
    alimony award;

    (e) The duration or        amount     of
    alimony already paid;

    (f) The health of the parties at
    the   time   of  the  retirement
    application;

    (g) Assets of the parties at the
    time     of    the     retirement
    application;

    (h) Whether    the  recipient has
    reached full retirement age as
    defined in this section;

    (i) Sources    of    income,        both
    earned   and   unearned,   of        the
    parties;

    (j) The ability of the recipient
    to   have  saved adequately  for
    retirement; and

    (k) Any other factors       that    the
    court may deem relevant.

         . . . .

(3) When a retirement application is filed
in cases in which there is an existing final
alimony   order   or   enforceable   written
agreement established prior to the effective
date of this act, the obligor's reaching
full retirement age as defined in this
section shall be deemed a good faith
retirement age.    Upon application by the



                     9                         A-3931-14T3
obligor to modify or terminate alimony, both
the obligor's application to the court for
modification or termination of alimony and
the obligee's response to the application
shall   be   accompanied  by   current  Case
Information Statements or other relevant
documents as required by the Rules of Court,
as well as the Case Information Statements
or other documents from the date of entry of
the original alimony award and from the date
of any subsequent modification.    In making
its determination, the court shall consider
the ability of the obligee to have saved
adequately for retirement as well as the
following factors in order to determine
whether the obligor, by a preponderance of
the   evidence,    has   demonstrated   that
modification or termination of alimony is
appropriate:

    (a) The age and      health of   the
    parties   at the     time   of   the
    application;

    (b) The     obligor's   field    of
    employment    and   the   generally
    accepted age of retirement for
    those in that field;

    (c) The age when the obligor
    becomes eligible for retirement at
    the obligor's place of employment,
    including   mandatory   retirement
    dates or the dates upon which
    continued   employment  would   no
    longer     increase     retirement
    benefits;

    (d) The    obligor's   motives   in
    retiring, including any pressures
    to retire applied by the obligor's
    employer    or   incentive    plans
    offered by the obligor's employer;

    (e)   The reasonable expectations
    of      the   parties   regarding



                    10                         A-3931-14T3
                    retirement during the marriage or
                    civil union and at the time of the
                    divorce or dissolution;

                    (f) The ability of the obligor to
                    maintain      support    payments
                    following   retirement, including
                    whether the obligor will continue
                    to be employed part-time or work
                    reduced hours;

                    (g) The     obligee's    level   of
                    financial   independence   and  the
                    financial impact of the obligor's
                    retirement upon the obligee; and

                    (h) Any other relevant factors
                    affecting the parties' respective
                    financial positions.

              [N.J.S.A. 2A:34-23(j)(1), (3).]

       Subsection (j)(2), which we omitted from our discussion,

addresses the circumstances when an obligor "seeks to retire

prior to attaining the full retirement age as defined in" the

statute.      N.J.S.A. 2A:34-23(j)(2).               "Full retirement age" means

"the    age    at   which    a    person        is   eligible     to   receive    full

retirement for full retirement benefits under section [4]16 of

the    federal      Social   Security        Act     (42     U.S.C.[A.]   §    416)."5

N.J.S.A.      2A:34-23.       A     person      is     eligible   to   receive    full

retirement     benefits      when    he   or     she    is   sixty-six    years    old,

5
     There appears to be a typographical error in the statute,
mistakenly referencing section "216," which we have corrected in
our opinion.    We are confident this is a mistake because 42
U.S.C.A. § 216 addresses prescriptions by the President and
promulgations by the Surgeon General.



                                           11                                 A-3931-14T3
"after December 31, 2004, and before January 1, 2017 . . . ."

42 U.S.C.A. § 416(l)(1)(C).

     We recently reviewed the legislative history accompanying

the 2014 amendments to the alimony statute, which states:

          This act shall take effect immediately and
          shall not be construed either to modify the
          duration of alimony ordered or agreed upon
          or   other    specifically   bargained  for
          contractual   provisions   that  have  been
          incorporated into:

          a.   a   final      judgment          of     divorce    or
          dissolution;

          b.   a final order that has concluded post-
          judgment litigation; or

          c.   any   enforceable           written         agreement
          between the parties.

          [L. 2014, c. 42, § 2.]

"This additional statement signals the legislative recognition

of the need to uphold prior agreements executed or final orders

filed   before    adoption      of        the        statutory    amendments."

Spangenberg, supra, 442 N.J. Super. at 538.

     Unlike   other   amended   provisions            of   N.J.S.A.    2A:34-23,

subsection (j) distinguishes alimony orders executed prior to

the amendment's effective date and those executed afterwards.

See N.J.S.A. 2A:34-23(j)(1), (3).           Therefore, this unambiguous

legislative directive governs a court's examination of alimony




                                     12                                 A-3931-14T3
modification requests arising when an obligor retires, depending

on the original date alimony is awarded.

      Subsection (j)(3) applies "[w]hen a retirement application

is filed in cases in which there is an existing final alimony

order or enforceable written agreement established prior to the

effective date of this act . . . . "                 N.J.S.A. 2A:34-23(j)(3)

(emphasis added).       This purposeful design demonstrates an intent

to address such circumstances somewhat differently than orders

entered following the enactment of the statutory amendments.

      Notably, the rebuttable presumption included in subsection

(j)(1), which places the burden on the obligee to demonstrate

continuation of the alimony award once an obligor attains full

retirement age, N.J.S.A. 2A:34-23(j)(1), is not repeated, but

replaced by a different standard                in subsection (j)(3).         The

latter provision follows the prior principles outlined in Lepis

and its progeny, by mandating "the court shall consider the

ability of the obligee to have saved adequately for retirement

as well as the following factors in order to determine whether

the   obligor,     by    a     preponderance       of   the    evidence,      has

demonstrated     that   modification       or    termination   of   alimony    is

appropriate . . . ."         N.J.S.A. 2A:34-23(j)(3) (emphasis added).

      Importantly, subsection (j)(3) elevates the ability of the

obligee to have saved adequately for retirement, listed only as




                                      13                               A-3931-14T3
a factor under N.J.S.A. 2A:34-23(j)(1)(j), setting it apart from

other   considerations         and    requiring       its      explicit       analysis.

N.J.S.A. 2A:34-23(j)(3).             Also, factors identified in the two

subsections       are    not   identical,        making        the    court's      focus

different.       For example, most apt to plaintiff's arguments are

subsections (j)(3)(f) and (g), mandating an examination of the

obligor's    ability     to    maintain    payments       upon       retirement,      and

"[t]he obligee's level of financial independence."6

     We understand that subsection (j)(1), if read in isolation,

appears to apply to any motion to modify or terminate alimony

upon an obligor's retirement.              However, when construing these

two subsections "together as a unitary and harmonious whole,"

Am. Fire & Cas. Co. v. N.J. Div. of Taxation, 189 N.J. 65, 80

(2006) (quoting St. Peter's Univ. Hosp. v. Lacy, 185 N.J. 1, 15

(2005)),    the     particular       language    used     in    subsection       (j)(3)

clarifies    the    Legislature's       intent       to   apply      (j)(1)    only     to

orders entered after the amendments' effective date.

     We cannot ignore defendant's retirement application in this

matter sought to modify an "alimony order . . . established

prior to the effective date of th[e] act," triggering review

pursuant    to     the   factors     listed     in    N.J.S.A.       2A:34-23(j)(3).

6
     Several factors listed in subsection (j)(3) are found in
Silvan, supra, 267 N.J. Super. at 581, and Deegan, supra, 254
N.J. Super. at 357.



                                         14                                     A-3931-14T3
Consequently, the judge's mistaken reliance on subsection (j)(1)

cannot be upheld.       Courts must abide the Legislature's clear

direction.     See In re Kollman, 210 N.J. 557, 568 (2012) ("If the

plain language is clear, the court's task is complete."); N.

Jersey Media Grp., Inc. v. Twp. of Lyndhurst, 441 N.J. Super.

70, 112 (App. Div.), leave to appeal granted, No. M-00444 (Dec.

8, 2015) (stating every word in a statute must be read as if

deliberate).

     Accordingly, we vacate the March 27, 2015 order and remand

to the Family Part judge to conduct proceedings as he deems

necessary    and   to   apply   the    burden   of   proof   and   specific

standards defined in N.J.S.A. 2A:34-23(j)(3).7

     Reversed and remanded.




7
     Plaintiff's argument that a remand requires reassignment is
rejected. R. 2:11-3(e)(1)(E).



                                      15                           A-3931-14T3
