                                NOT FOR PUBLICATION WITHOUT THE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-3937-17T3

M.S.,

          Plaintiff-Appellant,

v.

M.A.S.,

     Defendant-Respondent.
_________________________

                    Argued March 26, 2019 – Decided May 7, 2019

                    Before Judges Yannotti and Natali.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Somerset County,
                    Docket No. FM-18-0670-15.

                    Robert M. Zaleski argued the cause for appellant (Law
                    Offices of Paone, Zaleski & Murray, attorneys; Andrew
                    J. Economos, of counsel and on the briefs).

                    Bonnie C. Frost argued the cause for respondent
                    (Einhorn, Harris, Ascher, Barbarito & Frost, PC,
                    attorneys; Matheu D. Nunn and William J. Berman, on
                    the brief).

PER CURIAM
      Plaintiff M.S.1 appeals from portions of a March 23, 2018 Family Part

order denying his motion for reconsideration of the court's January 19, 2018

order. After conducting a thorough review of the record in light of the applicable

legal principles, we affirm in part, reverse in part, and remand for further

proceedings.

                                        I.

      M.S. and M.A.S. were married on August 18, 2000. They have two

daughters, a seventeen-year-old and a fourteen-year-old, both of whom reside

with defendant on a full-time basis. On September 1, 2011, the parties separated

and plaintiff moved to Boston.

      Plaintiff filed a complaint for divorce on June 26, 2013. In his 2013 case

information statement (CIS), plaintiff represented that the expenses necessary

to support the marital lifestyle totaled $32,091 per month. Defendant's 2013

CIS, however, claimed that the marital lifestyle expenses totaled only $17,526

per month. Both CISs stated the parties' joint gross income was approximately

$583,000 and their joint net income was $386,480 in 2012, the year following

their separation.



1
  We use initials to protect the confidentiality of the participants in these
proceedings
                                                                          A-3937-17T3
                                        2
      On January 6, 2014, the parties executed a Consent Final Judgment of

Custody and Parenting Time and plaintiff dismissed the divorce complaint.

Plaintiff reinstated the divorce proceedings the following year, and on December

8, 2015, the court entered a Final Judgment of Divorce (JOD), which dissolved

the parties' fifteen year marriage and incorporated their August 2015 Divorce

Settlement Agreement (DSA).

      At the time the DSA was executed, plaintiff was employed as the Chief

Medical Officer of a pharmaceutical company with a base annual salary of

$405,000.    In addition, he was eligible to earn additional incentives as

compensation, including "cash bonuses and stock options." When she signed

the DSA, defendant was "employed as a part time self-employed consultant to

the pharmaceutical industry." The parties acknowledged in the DSA that for

purposes of establishing plaintiff's alimony obligation, defendant's current

income was uncertain. The parties agreed, however, that "in no event shall gross

earned income of less than $110,000.00 per year be imputed to [defendant]."

      Pursuant to paragraph five of the DSA, plaintiff agreed to pay defendant

limited duration alimony for a period of ten years. Specifically, plaintiff was

required to pay defendant $100,000 per year in "base" limited duration alimony,

plus 25% of any "gross cash bonus" he earned as "additional" limited duration


                                                                        A-3937-17T3
                                       3
alimony for the first eight years. 2 For the following two years, his base alimony

would decrease to $75,000 per year, and he would no longer have to pay the

"additional" alimony.

      Two provisions of the DSA, paragraphs eight and twelve, are particularly

relevant to the issues raised by plaintiff related to his continued alimony

obligation. Paragraph eight provides:

            The parties have been advised of the [Lepis] decision
            ([Lepis v. Lepis, 83 N.J. 139 (1980)]), and other
            appropriate statutes (including [N.J.S.A.] 2A:34-23),
            rules, and case law governing alimony. The parties
            understand that the amount of alimony provided
            hereunder may be modified or terminated accordingly.
            The parties further understand that the duration or term
            of [plaintiff's] limited duration alimony obligation may
            only be modified upon a showing of unusual
            circumstances as set forth in [N.J.S.A.] 2A:34-23.

      Further, in paragraph twelve, both parties agreed that:

            The[y] . . . have been made aware of the case of [Crews
            v. Crews, 164 N.J. 11 (2000)] and the related case law.
            The parties agree that based upon the terms of this
            Agreement, they each have the ability to maintain the
            standard of living established during the marriage.



2
  Paragraph five further provides that "[t]he parties specifically acknowledge
that [plaintiff's] additional alimony obligation applies only to any gross cash
bonus paid to [plaintiff] and does not apply to any other form of bonus or
incentive compensation including but not limited to stock or stock options which
may be earned by [plaintiff] or paid to [plaintiff]."
                                                                          A-3937-17T3
                                        4
      In addition, the parties agreed that the limited duration alimony award

would terminate if either party died, or if defendant remarried or was determined

to be cohabitating. The DSA also required plaintiff to maintain life insurance

on behalf of defendant and the children. As to defendant, plaintiff agreed to

maintain a $1,000,000 policy "as long as [plaintiff] maintains an alimony

obligation" under the DSA. Commencing on July 1, 2016, and each succeeding

year, the DSA entitled plaintiff to reduce the policy's death benefit by $80,000.

      In September 2015, one month after the parties signed the DSA, plaintiff

moved to Germany and he lost his job approximately five months later in

February 2016. Plaintiff was rehired by a different pharmaceutical company

shortly thereafter and currently earns a base salary of $322,000. Defendant

claimed that despite his reduced base salary, plaintiff still receives substantially

the same annual income as he did in his previous job but structured his current

compensation package to lower his base salary.

      Defendant attested that she was unemployed from January 2016 through

March 2016, but that her income increased "during 2016 as a result of having to

work more hours to meet the financial demands of supporting [herself] and [the

parties'] two daughters." Defendant's current base salary is $190,000, and, like

plaintiff, she has an opportunity to earn an annual bonus.


                                                                            A-3937-17T3
                                         5
      According to defendant, in September 2016, plaintiff refused to contribute

to the children's extra-curricular and other miscellaneous expenses.            She

certified that plaintiff's "reduced base salary . . . and his potential for a higher

stock reward with [defendant] having no entitlement," his "inability to secure

[United States] medical insurance for the children," and his "decision to stop

contributing to [the] children's extra-curricular costs" required her "to secure

full-time employment as of January 2017."

      Defendant certified that working fulltime "was not the marital lifestyle to

which [they] had become accustomed; nor was this what was agreed upon."

Defendant maintained the parties enjoyed a "very comfortable" and "somewhat

luxurious" marital lifestyle that enabled them to "take extensive and luxurious

vacations regularly consisting of at least [five] weeks throughout the year,"

including trips to Europe and the Caribbean. Further, defendant certified that

during the marriage she "was able to shop and spend freely," that she "bought

items for the children and [their] home without much thought on cost," and that

the children "were able to attend expensive private schools and to enjoy

expensive extra-curricular activities."

      In February 2017, plaintiff unilaterally stopped paying alimony because

defendant had become a full-time permanent employee one month earlier and


                                                                            A-3937-17T3
                                          6
was earning $190,000 per year. On November 14, 2017, plaintiff filed a motion

seeking, among other relief, to: 1) terminate his alimony obligation retroactive

to April 2016; 2) amend the DSA's additional alimony provision to provide that

any percentage of the "gross cash bonus" defendant must pay to plaintiff "be

offset, dollar for dollar," by any "gross cash bonus" that plaintiff receives from

her new job; 3) terminate his obligation under the DSA to maintain life insurance

for defendant's benefit; and 4) suspend plaintiff's alimony obligation and permit

him to conduct discovery if the court determines a plenary hearing is necessary.

      Plaintiff filed a certification and an updated CIS in support of his mo tion,

in which he certified that "upon information and belief" defendant earns a bonus

in an undisclosed amount and has rental income of $26,000. The updated CIS

did not list the parties' marital lifestyle expenses. His certification stated that

although both his and defendant's "financial circumstances have changed

dramatically since the execution of our DSA … it is solely the change to

defendant's financial circumstances that . . . warrants the termination of [his]

alimony obligation . . . ." Defendant filed a cross-motion to enforce litigant's

rights and an updated CIS. Like plaintiff's updated CIS, defendant's CIS did not

list the parties' marital lifestyle expenses.




                                                                           A-3937-17T3
                                          7
      On January 19, 2018, following oral arguments, the court entered an order

accompanied by a written statement of reasons in which it concluded defendant's

salary increase since the time the DSA was executed qualified as a substantial

change in circumstances. Accordingly, the court granted plaintiff's motion in

part by modifying, but not terminating, his annual alimony obligation from

$100,000 to $73,500 per year retroactive to November 14, 2017, the date

plaintiff filed his motion. The court also granted defendant's cross-motion in

part by requiring plaintiff to pay alimony arrears in the amount of $91,216,

payable by way of wage garnishment.

      Plaintiff filed a motion for reconsideration on February 9, 2018. Plaintiff

maintained termination of alimony was appropriate, and claimed the court

committed error by using an arbitrary formula, proposed by defendant, to

establish the modified alimony award. Defendant filed a cross-motion seeking

wage garnishment and other relief, and a certification in which she denied

earning any rental income.

      The court heard oral arguments on March 23, 2018, and issued an order

and statement of reasons that day denying plaintiff's motion for reconsideration

and granting in part defendant's cross-motion. The court expressly denied using

a mathematical formula to calculate the modified award. Instead, the court


                                                                         A-3937-17T3
                                       8
explained it conducted an analysis of the ten factors detailed in N.J.S.A. 2A:34-

23(k), and found factors four, seven, eight, and ten "directly implicated by the

parties' submissions." The court stated that it found factors four and seven were

implicated because defendant's income increased from $110,000 to $190,000;

factor eight was applicable as defendant's "earnings increased because of new,

full-time employment"; and factor ten was relevant because "plaintiff has

engaged in unilaterally stopping alimony payments of any sort before a [c]ourt

[o]rder instructed him to do so, creating a situation in which the defendant was

placed in a financial quagmire."

      On appeal, plaintiff argues that the trial court erred by: 1) misinterpreting

the DSA by modifying, rather than terminating, his alimony obligations; 2)

requiring him to maintain a life insurance policy for defendant's benefit and pay

alimony arrears via wage garnishment; 3) refusing to amend paragraph five of

the DSA to provide that plaintiff may offset his "additional" alimony obligation

dollar-for-dollar against any cash bonus defendant receives; 4) failing to explain

its factual findings contrary to Rule 1:7-4 with respect to the retroactive date

and amount of his modified obligation; and 5) failing to conduct a plenary

hearing on several disputed issues. We reject all of plaintiff's points with the

exception of his arguments that the court failed to conduct a plenary hearing


                                                                           A-3937-17T3
                                        9
with respect to the amount of his modified alimony obligation or adequately

explain its factual findings and legal conclusions supporting the modified

amount. Accordingly, we reverse the March 23, 2018 order on those limited

issues and remand for a plenary hearing and additional factual findings

consistent with our opinion.

                                       II.

      We initially note that plaintiff appeals from only the court's March 23,

2018 order denying his reconsideration motion. Indeed, his notice of appeal

states he appeals from paragraphs one through fourteen, and sixteen, of the

March 23, 2018 order, and makes no reference to the court's initial January 19,

2018 order.

      "[I]t is clear that it is only the judgments or orders or parts thereof

designated in the notice of appeal which are subject to the appeal process and

review." Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 461-62 (App.

Div. 2001). However, "[w]e are mindful of the fact that in some cases a motion

for reconsideration may implicate the substantive issues in the case," and "an

appeal solely from . . . the denial of reconsideration may be sufficient for an

appellate review of the merits of the case." Id. at 461. Here, to the extent

plaintiff's motion for reconsideration was based on the argument that the court's


                                                                         A-3937-17T3
                                      10
rulings were based upon a palpably incorrect or irrational basis, see D'Atria v.

D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990), the substantive issues

presented to the court on the parties' original motion and plaintiff's motion for

reconsideration are sufficiently the same to warrant our review of the merits of

both. See Fusco, 349 N.J. Super. at 462.

      In reviewing a Family Part judge's motion order, we defer to "factual

findings 'supported by adequate, substantial, credible evidence' in the record."

Landers v. Landers, 444 N.J. Super. 315, 319 (App. Div. 2016) (quoting Gnall

v. Gnall, 222 N.J. 414, 428 (2015)).         "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.'" Landers, 444

N.J. Super. at 319 (alteration in original) (quoting D'Agostino v. Maldonado,

216 N.J. 168, 182 (2013)).      A court's reconsideration opinion will not be

disturbed on appeal "absent a clear abuse of discretion." In re Estate of Brown,

448 N.J. Super. 252, 269 (App. Div. 2017) (citing Pitney Bowes Bank, Inc. v.

ABC Caging Fulfillment, 440 N.J. Super. 378, 383 (App. Div. 2015)). "An

abuse of discretion 'arises when a decision is made without a rational

explanation, inexplicably departed from established policies, or rested on an




                                                                         A-3937-17T3
                                      11
impermissible basis.'" Ibid. (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J.

561, 571 (2002)).

                                       III.

      In plaintiff's first point, he argues the court abused its discretion in

deciding not to terminate his alimony obligations. We disagree.

      Initially we note that when parties originally agree 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)).

      In the DSA, the parties agreed to a limited duration alimony award that

would terminate if either party died, defendant remarried or was determined to

be cohabitating. In addition, the parties expressly stated in paragraph eight that

the "duration or term of [plaintiff's] limited duration alimony obligation may

only be modified upon a showing of unusual circumstances as set forth in

N.J.S.A. 2A:34-23(c)." We have interpreted the phrase "unusual circumstances"

in this context as requiring a "heightened" showing. See Gonzalez-Posse v.


                                                                           A-3937-17T3
                                       12
Ricciardulli, 410 N.J. Super. 340, 356 (App. Div. 2009); Gordon v. Rozenwald,

380 N.J. Super. 55, 67-68 (App. Div. 2005) (explaining that requiring a

"heightened showing" serves to "prevent misuse" of limited duration alimony

"to the disadvantage of either spouse" as "the end date of a term of limited

duration alimony is the equivalent of an arrangement to terminate support at a

predetermined time or event, regardless of need").

      In support of his request to terminate his limited duration alimony

obligation, plaintiff relies on paragraph twelve of the DSA. He argues that the

only "common sense" interpretation of the DSA is that the parties intended and

agreed by paragraph twelve that a gross income of $210,000 (defendant's

imputed income of $110,000 supplemented by plaintiff's base $100,000 limited

duration alimony obligation) would enable defendant to maintain the marital

lifestyle. According to plaintiff, because defendant currently has a base sa lary

of "at least $190,000 gross per year, [and] also was scheduled to receive an

additional bonus in March (2018), and does not refute the fact that she receives

$26,000 per year in rental income," alimony should have been terminated. 3



3
  Defendant, in fact, did "refute" that she collected $26,000 in rental income.
Indeed, in her certification filed in connection with the reconsideration
proceedings, defendant certified that she "do[es] not receive [any] rental
income."
                                                                         A-3937-17T3
                                      13
      Plaintiff fails to cite to, or discuss, paragraph eight of the DSA. Under

that provision, the only basis to terminate the limited alimony award would be

if plaintiff established "unusual circumstances" warranting such relief. We

conclude that the trial court did not abuse its discretion in refusing to terminate

the agreed upon limited duration alimony as such a remedy would be, as the

court stated, a "drastic measure" unwarranted by the motion record or the DSA.

Simply put, defendant's increase in income, from that imputed to her in the DSA,

was not an unusual circumstance warranting termination of her limited duration

alimony award.

                                      IV.

      Next, plaintiff maintains that the court abused its discretion when it failed

to reconsider its decision requiring plaintiff to maintain life insurance on

defendant's behalf, compelling plaintiff to pay alimony arrears and ordering a

wage garnishment. Again, we disagree.

       In accordance with the clear terms of the DSA, plaintiff's obligation to

maintain life insurance for the benefit of defendant terminates when plaintiff's

alimony obligation ends. Because the court correctly denied plaintiff's request

to terminate that obligation, it did not abuse its discretion in denying his

attendant requirement to maintain life insurance and pay any outstanding


                                                                           A-3937-17T3
                                       14
arrears. To the extent the court deems it appropriate to modify the alimony

award after the remanded proceedings, see infra pp. 21-23, it should

retroactively modify any accrued arrears. Finally, in light of plaintiff's unilateral

decision in February 2017 to cease paying alimony, the court's decision

requiring plaintiff to pay all alimony arrears through wage garnishment was an

appropriate exercise of its discretion.

                                          V.

      Plaintiff also claims the court erred in denying his request to amend the

DSA. Specifically, plaintiff requested the court modify paragraph five so "that

any 'gross cash bonus' that [he] must provide to [defendant] be offset, dollar for

dollar, by any gross cash bonus that [defendant] may receive through her" new

job. Plaintiff further argues that the court failed to explain the basis for its

decision as required by Rule 1:7-4.            We are not persuaded by plaintiff's

arguments.

      In Quinn, the Court noted that post-matrimonial settlement agreements are

contractual in nature and "[i]t is not the function of the court to rewrite or revise

an agreement when the intent of the parties is clear." Quinn, 225 N.J. at 45

(citing J.B. v. W.B., 215 N.J. 305, 326 (2013)). "Stated differently, the parties

cannot expect a court to present to them a contract better than or different from


                                                                             A-3937-17T3
                                          15
the agreement they struck between themselves." Ibid. (citing Kampf v. Franklin

Life Ins. Co., 33 N.J. 36, 43 (1960)).

      Here, the court properly rejected plaintiff's request and stated in its

January 19, 2018 statement of reasons:

             The language of the agreement is clear and
             unambiguous, and continuing to enforce this provision,
             especially in light of the modification above would not
             result in an absurdity. As a result, as held under [Quinn
             v. Quinn, 225 N.J. 34 (2016)], the [c]ourt cannot
             rewrite an unambiguous agreement that was entered
             into freely by the parties.

      Based on the clear and unambiguous language in paragraph five, we

conclude the court did not abuse its discretion when it denied plaintiff's request

to rewrite the DSA. There is no textual support in the DSA for the proposition

that the parties intended for defendant to forfeit her right to partake in plaintiff's

bonuses if she earned a bonus herself.

      As the court noted in its January 19, 2018 statement of reasons, continued

enforcement of the "clear and unambiguous" additional alimony provision

"would not result in an absurdity," and amending the DSA to entitle to defendant

to a dollar-for-dollar offset of his "additional" alimony obligation would require

the court to "rewrite an unambiguous agreement that was entered into freely by

the parties." The court's factual findings and legal conclusions detailed in its


                                                                              A-3937-17T3
                                         16
January 19, 2018 statements of reasons are fully supported by the record and

complied with Rule 1:7-4.

                                        VI.

      Plaintiff similarly argues that the court failed to comply with Rule 1:7-4

when it established the retroactive date for its modified alimony obligation as

the date plaintiff filed his motion, as opposed to April 2016, the date when

plaintiff maintains defendant's circumstances changed. Again, we disagree.

      The trial court has discretion "in setting the effective date of [a] retroactive

alimony adjustment." Clarke v. Clarke, 349 N.J. Super. 55, 58 (App. Div. 2002).

We will not overturn the court's decision in that regard "unless the court abused

its discretion, failed to consider controlling legal principles or made findings

inconsistent with or unsupported by competent evidence." Gordon, 380 N.J.

Super. at 76.

      Here, the court's written statement of reasons expressly incorporated by

reference the court's comments during the March 23, 2018 hearing in which it

noted that courts "frown on self-help," which is precisely what plaintiff resorted

to when he stopped paying alimony after he unilaterally decided defendant no

longer needed his support, contrary to the express requirements of the DSA. As

the court further explained in its March 23, 2018 statement of reasons, plaintiff


                                                                              A-3937-17T3
                                        17
"ceased paying alimony for over a year because he no longer wanted to pay, and

for no other reason," and "plaintiff's complete disregard for his negotiated

obligations is wholly without justification." Thus, the court's factual findings

and legal conclusions establishing the retroactive date as the date of plaintiff's

motion, rather than an earlier date, as detailed in its oral and written decisions,

satisfy Rule 1:7-4, and are amply supported by the record.

                                      VII.

      Finally, plaintiff maintains the court's modification of his alimony

obligation from $100,000 to $73,500 per year is unsupported by substantial,

credible evidence in the record. He also challenges the sufficiency of the court's

factual and legal conclusions in support of the modified award, and argues that

the court mistakenly resolved material factual disputes in defendant's favor

without a plenary hearing. We agree.

      "The basic purpose of alimony is the continuation of the standard of living

enjoyed by the parties prior to their separation." Innes v. Innes, 117 N.J. 496,

503 (1990).    "Where the parties have agreed on the amount of support or

alimony," modification of the agreement is appropriate "to the extent that

changed circumstances render the agreed terms no longer 'fair and equitable.'"

Morris v. Morris, 263 N.J. Super. 237, 241 (App. Div. 1993) (quoting Lepis v.


                                                                           A-3937-17T3
                                       18
Lepis, 83 N.J. 139, 148–149 (1980)). "[T]he moving party has the burden of

establishing the circumstances that warrant the change" in alimony. Zazzo v.

Zazzo, 245 N.J. Super. 124, 132 (App. Div. 1990).

      "In an application brought by a supporting spouse for a do wnward

modification in alimony . . . , the central issue is the supporting spouse's ability

to pay." Miller v. Miller, 160 N.J. 408, 420 (1999). Thus, if the payor is

incapable of complying with the terms of the JOD or supporting the payee at the

marital standard of living, modification may be appropriate. Conversely,

modification may also be appropriate when “there has been a significant change

for the better in the circumstances of the dependent spouse . . . ." Stamberg v.

Stamberg, 302 N.J. Super. 35, 42 (App. Div. 1997). In that situation, because

the payee can better support himself or herself, the need for the payor to continue

providing the original level of support diminishes. Additionally, the movant can

demonstrate "changed circumstances under Lepis by citing a combination of

changes on the part of both parties which together have altered the status quo

which existed at the time of the entry of the support order under review." Ibid.

      Although in uncontested divorces where the parties agree to a fixed

amount of alimony, the judge issuing the JOD need not make specific findings

as to the marital standard of living, Weishaus v. Weishaus, 180 N.J. 131, 144


                                                                            A-3937-17T3
                                        19
(2004), it becomes incumbent upon the motion judge deciding a motion for

modification to make those findings. Glass v. Glass, 366 N.J. Super. 357, 371

(App. Div. 2004) (“where the marital standard has not been established, a judge

addressing a modification application must make such determination”); see

Crews v. Crews, 164 N.J. 11, 16 (2000) (“The importance of establishing the

standard of living experienced during the marriage cannot be overstated. It

serves as the touchstone for the initial alimony award and for adjudicating later

motions for modification of the alimony award when ‘changed circumstances’

are asserted.”). 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 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 also Lepis, 83 N.J. at 151-52;

Larbig v. Larbig, 384 N.J. Super. 17, 22-23 (App. Div. 2006); Glass v. Glass,

366 N.J. Super. 357, 370-71 (App. Div. 2004).

      Initially, we note our agreement with the trial court that the increase in

defendant's income, from the $110,000 imputed at the time of the DSA to her


                                                                         A-3937-17T3
                                      20
undisputed base annual income of $190,000 at the time of plaintiff's motion,

constituted a substantial change of circumstances warranting modification of

plaintiff's limited term alimony obligation.     See Lepis, 83 N.J. at 152-53;

Stamberg, 302 N.J. Super. at 42. In modifying the amount, however, the court

improperly resolved disputed, material questions of fact regarding the parties'

marital standard of living without a plenary hearing, and failed to explain the

factual basis for the $73,500 modified amount.

      Specifically, in determining the parties' marital standard of living, the

court relied on plaintiff's salary of $405,000 and defendant's imputed income of

$110,000, as stated in the DSA.       Further, it found "[t]hose figure[s] . . .

consistent with the plaintiff's CIS which declared that the Schedule A, B and C

expenses, used to establish the marital lifestyle of the parties, was approximately

$32,000.00 per month." However, both plaintiff's and defendant's CISs stated

the parties' joint gross income in 2012 was approximately $583,000 before taxes.

And, although the court relied on plaintiff's CIS to establish the parties' marital

expenses, plaintiff stated his CIS was "artificially inflated due to expenses being

incurred during the divorce process" and defendant certified in her CIS that the

marital lifestyle expenses totaled approximately $17,500. The court resolved




                                                                           A-3937-17T3
                                       21
these material discrepancies by characterizing plaintiff's explanations regarding

his CIS as "not persuasive."

      As noted, establishing an accurate marital standard of living is material to

determining the modified amount. Crews, 164 N.J. at 36 (remanding to the trial

court because there was "no finding of the marital standard of living to guide

[the Court's] review"). We conclude that, by relying on plaintiff's CIS and the

DSA to establish the baseline marital standard of living, without conducting a

plenary hearing, the court abused its discretion. See K.A.F. v. D.L.M., 437 N.J.

Super. 123, 137-38 (App. Div. 2014); Palmieri v. Palmieri, 388 N.J. Super. 562,

564 (App. Div. 2006) (concluding that "[d]isputes of material fact should not be

resolved on the basis of certifications nor in reliance upon ambiguous terms in

a property settlement agreement," and that "[w]hen a genuine issue of material

fact exists, a plenary hearing is required" (citation omitted)). 4

      Separately, we also agree with plaintiff that a remand is necessary for the

court to provide factual findings consistent with Rule 1:7-4 detailing the bases



4
  We acknowledge that the JOD indicated the parties "have been made aware"
of the Crews decision, and that they agreed that "based on the terms of th[e]
[DSA], they each have the ability to maintain the standard of living established
during the marriage." The DSA, however, does not establish clearly that
standard of living, particularly where part of plaintiff's limited duration alimony
obligation included "additional" alimony by way of uncertain cash bonuses.
                                                                           A-3937-17T3
                                        22
for modifying the limited term alimony from $100,000 to $73,500 per year.

After considering the N.J.S.A. 2A:34-23(k) factors, the court modified the

alimony obligation without any explanation how it arrived at the $73,500 figure.

Instead, in its January 19, 2018 statement of reasons, the court stated in

conclusory fashion that $73,500 "is the alimony needed to allow the defendant

and the children to enjoy the marital lifestyle established during the marriage."

While the court explained that "[a]ll of the schedules of the parties and their

CIS's have been carefully examined," the parties' CISs differed by almost

$175,000 with respect to annual marital expenses, and the court did not directly

address that discrepancy or state how the disparate CISs affected its

determination that a modified alimony award of $73,500 could maintain the

marital standard. See Gordon, 380 N.J. Super. at 78 (remanding for additional

findings when, among other cumulative errors, "relevant evidence was

disregarded without discussion or explanation"). Finally, although we affirm

the court's decision not to amend the "additional" alimony provision as plaintiff

requested, see supra pp. 15-17, the fact that defendant is entitled to that

"additional" alimony must be considered on remand when determining the

amount of the modified award.




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      To the extent we have not specifically addressed plaintiff's contentions, it

is because we find they have insufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E).

      Affirmed in part, reversed in part, and remanded for further proceedings

consistent with this opinion. We do not retain jurisdiction.




                                                                          A-3937-17T3
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