                        NOT FOR PUBLICATION WITHOUT THE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-1582-15T4


MIRIAM B. STENGER,

              Plaintiff-Respondent/
              Cross-Appellant,

v.

JAMES R. STENGER,

          Defendant-Appellant/
          Cross-Respondent.
________________________________________________

              Argued March 16, 2017 – Decided September 19, 2017

              Before Judges Espinosa and Guadagno.

              On appeal from the Superior Court of New
              Jersey, Chancery Division, Family Part,
              Morris County, Docket No. FM-14-1206-04.

              Jessica A. Bosch argued the cause for
              appellant/cross-respondent (Dalena & Bosch,
              LLC, attorneys; Ms. Bosch, on the briefs).

              Jennie L. Osborne argued the cause for
              respondent/cross-appellant (Einhorn, Harris,
              Ascher, Barbarito & Frost, PC, attorneys;
              Stephen P. Haller and Ms. Osborne, of
              counsel and on the briefs).

PER CURIAM
    Defendant James R. Stenger appeals from an order entered on

June 30, 2015 denying his motion for termination or modification

of his alimony obligation to plaintiff Miriam B. Stenger.

Defendant also appeals from the November 20, 2015 order denying

his motion for reconsideration.       Plaintiff cross-appeals from

the portion of the November 20, 2015 order denying her motion

for counsel fees and costs.

    The parties married in 1986, and divorced in 2005.       Four

children were born of the marriage, all of whom are now

emancipated.   During the marriage, defendant worked for

plaintiff's father in his insurance business, F.A. Bonauto and

Associates (FABA), in Morristown.      Defendant's brother-in-law,

Kenneth French, also worked at FABA.      In 1986, defendant and

French formed National Association Services, Inc. (NAS),

providing wholesale and retail insurance services, including

health insurance policies, to the general public.

    Plaintiff filed a complaint for divorce in 2004 and

retained a forensic accountant to examine defendant's income and

the value of his interest in NAS.       The parties engaged in

discovery, including depositions, interrogatories, and document

production.

    In January 2005, after extensive negotiations, the parties

entered into a property settlement agreement (PSA) which

                                  2                              A-1582-15T4
resolved all outstanding issues.    On March 31, 2005, a final

judgment of divorce was entered incorporating the PSA.

    Pursuant to the PSA, defendant was obligated to pay

plaintiff permanent alimony of $162,000 per year which would

terminate upon the death of either party or plaintiff's

remarriage.   Defendant was required to maintain a $1,000,000

life insurance policy, naming plaintiff as the beneficiary.         Of

significance to our discussion, the PSA provides:

         When the HUSBAND reaches age sixty-two (62),
         assuming the WIFE has not remarried or
         predeceased him, the parties shall negotiate
         an adjustment in the face amount of the
         insurance based on the cost of the premium,
         the HUSBAND's income, the WIFE's income at the
         time, if any, and actuarial considerations.
         If the parties cannot reach an agreement with
         respect to the amount of insurance coverage
         the HUSBAND is obligated to provide to the
         WIFE, either party may make application to the
         Superior Court of New Jersey, Chancery
         Division[.]

    The PSA permitted defendant to retain his business interest

in NAS "free and clear" of any interest of plaintiff.     In

consideration for this waiver by plaintiff, the agreement

obligated defendant to pay plaintiff $800,000 with interest in

quarterly installments.   This amount was calculated pursuant to

a business evaluation report, which estimated that NAS was worth

approximately $1.8 million at the time of the divorce.     This



                                3                              A-1582-15T4
payment term was to be evidenced by a promissory note secured by

a pledge agreement of defendant's stock in NAS.

    In March 2010, NAS was sold to BenefitMall Holdings, Inc.

(BenefitMall) for $10.2 million.    Defendant received $5.1

million for his fifty-percent share of the company.    Defendant

then made a lump sum payment of $800,000 to plaintiff pursuant

to the PSA and placed the remaining proceeds of approximately

$4.3 million in an investment account with Wells Fargo.

    After the sale, defendant agreed to work for BenefitMall as

the director of business development, earning $203,733 in 2010;

$143,396 in 2011; and $73,485 in 2012.    Then, at age sixty-one,

defendant retired and relocated to Florida.

    In 2013, plaintiff sold the former marital home in

Morristown for $875,000 and purchased a smaller home in Morris

Plains for $640,000.   Plaintiff worked part-time at a retail

store in Morristown, earning approximately $11,440 in 2013, and

$15,826 in 2014.

    In March 2015, defendant filed a motion to terminate or

reduce his alimony and life insurance obligations based on the

change of circumstance of his retirement.     Defendant's case

information statement indicated his net income for 2014 was

$134,356, and his monthly expenses totaled $9062.     Plaintiff



                                4                             A-1582-15T4
opposed the motion and sought to compel defendant to maintain

the $1,000,000 life insurance policy.

    On June 30, 2015, the motion judge entered an order

accompanied by a written statement of reasons denying

defendant's motion.   The judge also denied plaintiff's cross-

motion to maintain the insurance obligation and encouraged the

parties "to discuss lowering the policy amount."

    Defendant moved for reconsideration and sought discovery

and a plenary hearing.   That motion was denied on November 20,

2015.

    On appeal, defendant argues the motion judge erred in

failing to order discovery and a plenary hearing as he made a

prima facie showing of changed circumstances, and the parties

conflicting certifications demonstrated a clear dispute of fact.

Defendant also claims he established that his earned income had

been reduced from $700,000 per year to zero as a result of his

retirement and he was unable to continue to pay alimony to

plaintiff at a rate of $13,500 per month.     Defendant also

maintains that plaintiff no longer has an ongoing need for that

amount of alimony, and the parties had contemplated his

retirement at age sixty-two in the PSA.     Finally, defendant

claims the judge erred in determining that he has the ability to

pay based on monies defendant received from the sale of NAS.

                                5                              A-1582-15T4
    The general rule is that findings by the trial court are

binding on appeal when supported by adequate, substantial,

credible evidence. Gnall v. Gnall, 222 N.J. 414, 428 (2015).       We

do 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." Cesare v. Cesare, 154 N.J. 394, 412

(1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of

Am., 65 N.J. 474, 484 (1974)).    "Because of the family courts'

special jurisdiction and expertise in family matters, [we]

accord deference to family court factfinding." Id. at 413.

However, our review of a trial court's legal conclusions is

plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995).

    We review a decision on a motion for reconsideration under

an abuse of discretion standard. Fusco v. Bd. of Educ. of

Newark, 349 N.J. Super. 455, 462 (App. Div.), certif. denied,

174 N.J. 544 (2002).    An abuse of discretion "arises when a

decision is 'made without a rational explanation, inexplicably

departed from established policies, or rested on an

impermissible basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J.



                                 6                          A-1582-15T4
561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration &

Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).

    "Motions for reconsideration are granted only under very

narrow circumstances[.]" Fusco, supra, 349 N.J. Super. at 462.

         Reconsideration should be used only for those
         cases which fall into that narrow corridor in
         which either (1) the Court has expressed its
         decision based upon a palpably incorrect or
         irrational basis, or (2) it is obvious that
         the Court 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)).]

    Defendant argues that his retirement constitutes a changed

circumstance as his earned income was reduced to zero.   He also

claims the previously referenced provision in the PSA mandating

an adjustment in the amount of insurance coverage when he

reached age sixty-two indicates the parties anticipated he would

retire at that age.

    The motion judge rejected this argument and held the

provisions in the PSA relating to alimony and insurance coverage

were "clearly separable," and defendant's argument to the

contrary was "at best misplaced, and at worst grossly

disingenuous."

    A property settlement agreement is governed by basic

contract principals. J.B. v. W.B., 215 N.J. 305, 326 (2013).

                               7                            A-1582-15T4
The language of the PSA is clear that the parties intended to

reevaluate the life insurance policy when defendant reached the

age of sixty-two because, at that age, the premium increases

from $1463.75 to $27,968.15.   Based on this increase, it is

apparent why defendant would have negotiated for this clause in

the PSA.   Nowhere in the document is there an indication that

defendant intended to retire or renegotiate alimony at this age.

    The judge noted that defendant voluntarily sold his

interest in NAS in 2010, and in the four years following the

divorce, his average income substantially exceeded the income

figure utilized in the PSA to calculate his alimony obligation.

Of more significance is the judge's conclusion that defendant

failed to provide sufficient documentation to allow him "to

scrutinize the investment portfolio and determine the level of

passive income being generated by the account."

    Defendant's response to this finding is that the judge

should have ordered a plenary hearing in order to obtain the

needed information.   This cart-before-the-horse approach is

fundamentally at odds with the settled principle that the party

moving for modification bears the burden of making a prima facie

showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139,

157-59 (1980).   This showing must be made before a court

considers whether to order a plenary hearing. Id. at 159.      The

                                8                           A-1582-15T4
judge's finding that defendant failed to provide sufficient

documentation finds ample support in the record and we see no

reason to disturb it.

    Finally, defendant claims the motion judge erred in

considering proceeds from the sale of his business when weighing

defendant's ability to pay his alimony obligation, and should

have limited his inquiry to defendant's "current income" and

excluded any income flowing from the sale of his business.     We

disagree.

    "Although some assets may be exempt from those subject to

equitable distribution (such as an inheritance), income derived

from those excludable assets may be considered in the initial

alimony decision or modification of an alimony award." Miller v.

Miller, 160 N.J. 408, 422 (1999).   There is no indication in the

PSA that the parties intended to exclude the proceeds or income

generated from the proceeds of the sale of defendant's business.

Even if the parties had exempted the proceeds, "the income

generated by [an exempted asset] is no different from income

generated by any other asset, exempt or otherwise, for an

alimony analysis." Aronson v. Aronson, 245 N.J. Super. 354, 363

(App. Div. 1991).

    The remaining arguments presented by defendant lack

sufficient merit to warrant further discussion in our opinion,

                               9                            A-1582-15T4
as does plaintiff's claim that the judge erred in denying her

request for counsel fees and costs. R. 2:11-3(e)(1)(E).

    Affirmed.




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