                                NOT FOR PUBLICATION WITHOUT THE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-0513-18T2

VICTORIA GOETHALS,

          Plaintiff-Respondent/
          Cross-Appellant,

v.

JEFFREY J. GOETHALS,

     Defendant-Appellant/
     Cross-Respondent.
__________________________

                    Argued September 18, 2019 – Decided January 7, 2020

                    Before Judges Whipple, Gooden Brown and Mawla.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Morris County,
                    Docket No. FM-14-0109-15.

                    Joseph M. Freda, III, argued the cause for
                    appellant/cross-respondent (Wilentz Goldman &
                    Spitzer, and Gomperts Penza McDermott & Von Ellen,
                    LLC, attorneys; Marisa Lepore Hovanec and Joseph M.
                    Freda, III, of counsel and on the briefs).

                    Paul H. Townsend argued the                                      cause for
                    respondent/cross-appellant (Townsend                             Tomaio &
              Newmark LLC, attorneys; Paul H. Townsend, of
              counsel and on the brief; Jessica S. Swenson, Kevin
              Wei-Kwan Ku, and Jennifer M. Cornelius, on the
              briefs).

PER CURIAM

        In this post-judgment matrimonial matter, defendant ex-husband moved

to modify his alimony obligation based on plaintiff ex-wife's purported

cohabitation and salary increase. Plaintiff cross-moved for counsel fees and an

increase in child support based on defendant's alleged significant salary increase

since the divorce. In a September 14, 2018 Family Part order, the judge denied

both motions. Defendant appeals and plaintiff cross-appeals, each arguing the

judge erred in determining each failed to establish a prima facie case of changed

circumstances. Plaintiff also argues the judge erred in denying her counsel fees.

We affirm the denial of counsel fees, but reverse in all other respects.

                                          I.

        We present an expansive recitation of the procedural and factual

background to lend context to the issues subject to these appeals. The parties

divorced in 2016 after a fifteen-year marriage that produced two sons, J.G.,1

born April 2004, and N.G., born May 2007. The Marital Settlement Agreement



1
    We use initials to protect privacy.
                                                                           A-0513-18T2
                                          2
(MSA) incorporated into the Final Judgment of Divorce (FJOD) required

defendant to pay child support in the amount of $650 per month "[b]ased on an

equal shared custody arrangement, the incomes reflected on the child support

guidelines [guidelines]" and "the alimony obligation." The guidelines reflected

total annual income of $789,048 for defendant and $157,976 for plaintiff. As to

the alimony obligation, "[b]ased on the length of the parties' marriage,"

defendant's "base income of $439,000," plaintiff's base "income of $142,533,"

plaintiff's "needs," and "consideration of other statutory factors," defendant was

obligated to pay plaintiff $103,992 per year or $8666 per month for six years,

commencing upon the entry of the FJOD.

      The MSA also provided:

            32. As additional alimony, [defendant] shall directly
            provide [plaintiff] with [twenty-five percent] of his
            gross bonus received by him, . . . subject to a cap of
            $215,000. [Plaintiff's] gross annual bonus shall be
            subtracted from the amount of [defendant's] gross
            bonus or from $215,000, whichever is lesser and then
            multiplied by [twenty-five percent], to arrive at a fixed
            lump sum payment to [plaintiff] that shall fully satisfy
            this additional alimony award. . . .

            33. Also as additional alimony, if [defendant] is paid
            any stock, stock options, [restricted stock units
            (RSUs)], or any form of additional compensation not
            otherwise subject to equitable distribution, including
            deferred compensation, other than his base salary and


                                                                          A-0513-18T2
                                        3
            bonus . . . , [plaintiff] shall receive [fifteen percent] of
            same, subject to a cap of $16,320 net.

      Pursuant to the MSA, "[t]he parties acknowledge[d] that the alimony

terms . . . [would] not permit them to live at a standard of living reasonably

comparable to that enjoyed by them during the marriage[,]" but agreed to "be

bound by the terms" of the MSA "in consideration of all of the financial terms

set forth in [the] [a]greement[.]" The MSA also provided for the premature

termination of alimony upon either party's death or upon plaintiff's "remarriage."

Additionally, the MSA provided that "[plaintiff's] cohabitation in a mutually

supportive, intimate, personal relationship shall be considered a change of

circumstances warranting a review of alimony." Further, the MSA specified that

plaintiff had "an affirmative obligation to advise [defendant] of said

cohabitation."

      In the MSA, the parties acknowledged that they were represented by

independent counsel, that they entered into the MSA "freely and voluntarily

without coercion or duress[,]" and that they believed the agreement was

"reasonable and fair." The parties also agreed to "pay their own counsel fees

with regard to the preparation of the [MSA] and obtaining the [FJOD]."

However, "if either party [brought] an application to enforce any term of th[e]

[MSA], the party who failed to comply with th[e] [MSA] [would] be responsible

                                                                           A-0513-18T2
                                         4
for paying any and all reasonable legal fees and costs[,] and other expenses

awarded to the other party in successfully bringing an application to enforce th[e

MSA]."

        On May 16, 2017, plaintiff filed her third enforcement motion, 2 seeking

an order finding defendant in violation of litigant's rights based upon defendant's

failure to timely pay plaintiff her share of various stocks, stock options, bonuses,

and income tax refunds in connection with the alimony and equitable

distribution provisions of the MSA. Under the equitable distribution provisions

of the MSA, plaintiff was entitled to specified portions of defendant's employee

stock purchase plan shares and stock options that had vested. Additionally, any

income tax refund for the parties' joint 2015 tax return was to "be allocated

between the parties in proportion to his or her share of income in 2015." Plaintiff

also sought counsel fees and costs associated with the enforcement motion.

        Defendant opposed the motion, and cross-moved for other relief,

including terminating, suspending, or modifying his alimony obligation based

upon plaintiff's cohabitation with A.G. In responding to plaintiff's enforcement

motion, defendant certified the court had previously addressed some of



2
    Plaintiff had partially prevailed in her prior motions.


                                                                            A-0513-18T2
                                          5
plaintiff's requests "in its most recent [o]rder," and other requests were

submitted to an upcoming early settlement panel (ESP). Further, defendant

certified plaintiff failed to cooperate with his earlier attempt "to settle up the

bonus payments," and that he previously provided plaintiff checks totaling

$135,790, representing her share of the vested stocks, as well as "all of the

information . . . including detailed transaction information and associated tax[-

]impact information" related to "the sale of the stock."

      To support his cohabitation claim, defendant certified that "[p]laintiff and

[A.G.] have been involved in an exclusive, enduring and committed relationship

for the past three . . . years," which "began prior to" the finalization of their

divorce and "has now resulted in . . . [p]laintiff and [A.G.] becoming engaged."

In his certification, relying on Instagram and Facebook activity, personal

observations, and a surveillance report prepared by a private investigation firm

he retained, defendant asserted that "at a bare minimum[,]" plaintiff and A.G.:

            (1) are engaged; (2) spent consistent/regular overnights
            together from August 1, 2014 through the present; (3)
            moved together from . . . Birch Drive to . . . Berta Place
            in Basking Ridge; (4) blended their families together;
            (5) transported each other's children; (6) performed
            household chores together; (7) [ate] out together with
            their families; (8) attended parties, barbeques, and
            gatherings of friends/family; (9) performed crossfit
            training/competitions together; and (10) held


                                                                          A-0513-18T2
                                        6
             themselves out to the public, family, and friends as a
             couple.

      Defendant provided screenshots of Instagram and Facebook comments, as

well as photos and videos, showing, among other things, "[A.G.] and his [two]

daughters . . . at . . . [p]laintiff's beach house and on her boat in the Barnegat

Bay[,]" plaintiff donating $100 to a "fundraising page" on behalf of A.G.'s

family member, and the couple's dogs spending time together. Additionally, the

surveillance report revealed that A.G. spent approximately eighteen overnights

at plaintiff's home between September 5, 2016 and April 1, 2017, and plaintiff

and the parties' children stayed with A.G. at his Virginia property from April 21

through 23, 2017. The surveillance report also noted that A.G. was observed

clearing snow from plaintiff's car, and "re-stack[ing] items in the

recycling/garbage pile at the end of [plaintiff's] driveway." In addition, on

October 15, 2016, "a POD[S] [c]ontainer, with [A.G.]'s belongings" was

observed in "[p]laintiff's driveway," and "[o]n October 28, 2016, . . . a large

moving truck" moved "[p]laintiff, [A.G.], and [the parties'] children . . . from

. . . Birch Drive to . . . Berta Place."

      In response, plaintiff acknowledged her engagement to A.G. as of April

1, 2017. However, plaintiff denied any intertwined finances, denied sharing

household chores, denied making any enforceable promises to support each

                                                                          A-0513-18T2
                                           7
other, and denied living with A.G. According to plaintiff, A.G. resided in his

own home in Virginia and visited mainly on weekends. Plaintiff denied that

A.G. moved with her to Berta Place, and denied that A.G.'s belongings were

ever in the PODS container, which she obtained to move her belongings to Berta

Place. Plaintiff denied being in a relationship akin to the supportive, intimate,

and personal or marriage-like relationship that would warrant review of

defendant's alimony obligation, and refuted defendant's contention that his

social media exhibits proved otherwise.

      In an August 1, 2017 order, the judge denied the parties' motions. As to

plaintiff's enforcement motion, the judge ordered the parties to "agree on a

forensic accountant to determine whether defendant owe[d] plaintiff additional

money" in relation to the stock payment dispute. Regarding the bonus payments,

the judge ordered the parties "to divulge to each other their 2016 additional

compensation" as required under the MSA, and to make any outstanding

payment "within [thirty] days of their respective receipts." As to counsel fees,

the judge denied plaintiff's request pursuant to the MSA because her "motion

was not successful." However, the judge granted plaintiff "leave to file" for

counsel fees "regarding the stock payment issue only[,]" if the forensic




                                                                         A-0513-18T2
                                       8
accountant's "report leads the court to [conclude] that defendant breached the

MSA's provision regarding stock payment[.]" 3

      Turning to defendant's cohabitation claim, applying governing case law

and the applicable statutory factors contained in N.J.S.A. 2A:34-23(n), the judge

concluded "[d]efendant has fallen short . . . in making a prima facie case of

cohabitation to shift the burden of proof to plaintiff." The judge explained that

while A.G. and plaintiff were "engaged, plaintiff's relationship with [A.G.] is

the romantic relationship characterized by regular meetings, participation in

mutually appreciated activities, and some overnight stays," all of which were

insufficient to establish cohabitation "considering the absence of economic

impact." Specifically, the judge found defendant failed to produce any evidence

of "intertwined finances[,] such as joint bank accounts and other joint holdings

or liabilities," and failed to produce any evidence of "joint responsibility for

living expenses[.]" The judge noted that "[e]ating out, vacationing, and visits

to plaintiff's shore house do not suggest that plaintiff or [A.G.] are paying each

other's living expenses."




3
  Plaintiff withdrew her request for her proportionate share of the joint income
tax refund and reimbursement for the amounts defendant previously charged
against plaintiff's share of equitable distribution payments.
                                                                          A-0513-18T2
                                        9
      Additionally, the judge found no evidence of "sharing household chores,"

or caring "for each other's children." The judge also rejected defendant's claim

that "[twenty-eight] family Facebook photographs over the course of about two

years which either plaintiff or [A.G.] liked or commented on" constituted

"recognition of the relationship in the couple's social and family circle," or

evidence "of a relationship tantamount to marriage." According to the judge,

instead, "[t]his [was] evidence of casual contact between friends on the

[i]nternet; not two families effectively merging by virtue of the relationship

between a couple." The judge pointed out that "[e]ven if defendant had better

evidence, recognition of the couple would not be dispositive of a prima facie

case of cohabitation."

      The judge continued:

                  As for living together, the frequency of contact,
            the duration of the relationship, and other indicia of a
            mutually supportive intimate personal relationship,
            defendant's photographs of moving trucks and POD[S]
            containers confirm only one thing – that plaintiff
            moved and [A.G.] helped the movers. There is no
            evidence [A.G.'s] belonging[s] were inside the POD[S].
            There is no evidence that [A.G] moved to New Jersey
            whatsoever, let alone back in October 2016, the time of
            the POD[S's] invoice and purported move. . . . All of
            the activity reported by the private investigator is
            nothing short of sporadic. The pattern of the time
            periods in the report reflect temporary visiting. The
            private investigator could not "string together" any

                                                                        A-0513-18T2
                                      10
             significant length of time suggesting anything more
             than regular visits and overnight stays. Same is said for
             the defendant's own photographs offered as evidence
             . . . . Defendant's evidence certainly suggests an
             intimate and enjoyable relationship, albeit one mutually
             supportive emotionally, not economically. Intimacy
             does not pay the bills or maintain the standard of living
             memorialized in a [MSA].

      On August 22, 2017, defendant moved for reconsideration, arguing that

under the MSA, there was no requirement that there be economic impact or

intertwined finances when determining cohabitation. Defendant stressed that

based on the court's own findings, he made the requisite showing of changed

circumstances as defined by the MSA. Plaintiff opposed the motion and cross-

moved for an order finding defendant in violation of litigant's rights for failing

to comply with an earlier court order directing defendant to reimburse plaintiff

for real estate taxes, failing to cooperate with the forensic accountant retained

pursuant to the August 1, 2017 order, and failing to resolve the outstanding

bonus payment dispute. Plaintiff also sought counsel fees in connection with

her motion. In a December 19, 2017 order, the judge denied defendant's motion.

As to plaintiff's enforcement motion, the judge ordered defendant to reimburse

plaintiff the real estate taxes addressed in the earlier court order, and ordered the

parties to comply with the court ordered forensic accountant to resolve the



                                                                             A-0513-18T2
                                        11
remaining issues.4 The judge also determined that in the absence of "bad faith"

by either party, "neither party [was] entitled to [c]ounsel fees."

      On July 27, 2018, defendant filed another motion to review his alimony

obligation,   asserting   changed    circumstances    based    upon    "[p]laintiff's

cohabitation and/or [p]laintiff's substantial increase in income" from the time

the MSA was entered.5 In a supporting certification, defendant reiterated that

"the court erred when it determined that intertwined finances were necessary"

to establish cohabitation where the parties' MSA only required "a 'mutually

supportive', 'intimate' and 'personal relationship[,]'" which defendant showed

"[b]ased on the court's own findings[.]" Defendant added that plaintiff and A.G.

"continue[d] to spend significant time" together "on a regular basis," and

"function[ed] effectively as a blended family unit," sharing "a family [i]Cloud




4
   The judge determined that the stock payment dispute was moot based on
defendant's concession and plaintiff's withdrawal of her request.
5
   Defendant had attempted to appeal the prior adverse cohabitation ruling, but
withdrew his appeal because the outstanding forensic accountant's report
precluded a determination of finality. Appeals as of right are limited to final
judgment. See R. 2:2-3. "To be considered a final judgment appealable as of
right, the order must generally dispose of all issues as to all parties." CPC Int'l,
Inc. v. Hartford Accident & Indem. Co., 316 N.J. Super. 351, 365 (App. Div.
1998).
                                                                            A-0513-18T2
                                        12
account where they chronicle[d] important events with themselves and their

children."

      Once again, defendant provided photos of the families "spend[ing]

holidays, vacations and the summer together," including "Christmas [c]ard

photographs," "their new family dog," and "cooking" photos "in [p]laintiff's

kitchen." Defendant certified that A.G. "assist[ed] with parental responsibility

for [the parties'] children," as evidenced by him "dropping [them] off" for

parenting time with defendant, and by the parties' "son regularly refer[ring] to

[A.G.] as his 'step-dad'." To support the latter allegation, defendant provided

his girlfriend's affidavit, certifying that the parties' children often called A.G.

their stepfather, and that A.G.'s children had a room at plaintiff's shore home,

which they decorated.

      While stressing that intertwined finances were "absolutely unnecessary"

to establish cohabitation, defendant noted it was "readily apparent" from

plaintiff and A.G. "spend[ing] time together at [p]laintiff's residence, her shore

house, on vacations, and holidays" that "[b]oth parties [were] certainly

economically benefit[t]ing from same." Additionally, defendant provided a

spending summary from the parties' "pre-divorce joint [bank] account," which




                                                                           A-0513-18T2
                                       13
defendant asserted was used by plaintiff to make purchases for A.G.'s Virginia

home and to pay for A.G.'s travel expenses "while they vacationed together."

      To support his claim of changed circumstances based upon plaintiff's

change in income, defendant certified that "[p]laintiff's total income increased

to $181,870.31," representing "an almost [thirty percent] increase" since "the

time of [their] divorce."    Further, according to defendant, plaintiff was

"promoted as of March 2018 to the Director of Sales Compensation and Health

Systems Analytics[,]" which defendant "surmise[d]" would result in an even

greater increase in plaintiff's income and "an even greater ability to meet the

marital standard of living." In compliance with court rules, see R. 5:5-4(a),

defendant submitted his prior Case Information Statement (CIS) and an updated

CIS, dated July 27, 2018, showing that defendant earned an annual salary of

$461,600, plus $396,630 in bonuses, and had a current lifestyle of $33,435 per

month.

      Plaintiff opposed defendant's motion and cross-moved for an order

"[r]ecalculating [c]hild [s]upport based on the substantial change of

circumstances in [d]efendant's significantly increased income;" "[f]inding

[d]efendant in contempt of the [c]ourt's [August 1 and December 19, 2017]

[o]rders . . . for failure to cooperate with the [c]ourt[] [appointed forensic


                                                                        A-0513-18T2
                                      14
accountant;]" "[f]or counsel fees and costs related to th[e] application;" and

other relief not pertinent to these appeals. In support, plaintiff certified there

was "no merit to [d]efendant's third application seeking to terminate alimony

based on cohabitation" when the court had previously determined "that all

[d]efendant can show is that [she] was dating and . . . [was] now engaged to

someone who live[d] far away and visit[ed] from time to time."              Plaintiff

reiterated that she and A.G. "do not share expenses, chores[,] or any other factors

the [c]ourt considers." Plaintiff denied "own[ing] any part of" A.G.'s Virginia

home or "purchas[ing]" any furniture for his home. Plaintiff also denied that the

parties' children "call[ed] [A.G.] their step-father" and denied "hav[ing]

'blended' [their] families," asserting that the parties' children had only met A.G.'s

children on "a few occasions."

      Regarding their income, plaintiff acknowledged "[she] did receive a raise

and promotion" in 2017, but asserted it was her "base salary and bonus"

combined that totaled $181,000, whereas the MSA "specifically used only . . .

base salaries and not bonus income for purposes of determining alimony."

Plaintiff noted that "[a]limony related to bonus[es] and 'other' income was dealt

with separately" in the MSA. Plaintiff further certified that "even with [her]

recent [eight percent] raise[,]" she was "still living below the marital lifestyle


                                                                             A-0513-18T2
                                        15
and [her] earnings [were] not sufficient to cover [her] expenses without

alimony." In contrast, relying on defendant's updated CIS, plaintiff pointed out

that defendant's "expected annual income" for 2018 was "$2.8 million[,]"

representing "a 350 [percent] increase from his earnings at the time of [the]

divorce." Plaintiff asserted further that since the divorce, "in addition to more

than tripling his earnings[,]" defendant was promoted from "Group Vice

President of Business Information" to "Senior Vice President of Merchant

Support."

      According to plaintiff, because "[d]efendant's lifestyle has also grown

exponentially" to "well more than [the parties'] marital lifestyle and significantly

more than [her] own current lifestyle[,]" "any change of circumstances caused

by [her] . . . raise [was] far out[-]shadowed by his." Additionally, to support her

request for an increase in child support to $1204 per month, plaintiff submitted

an updated guidelines calculation, using current income figures for both parties.

Plaintiff also sought counsel fees, asserting defendant had "intentionally

[misled] the [c]ourt with frivolous and repetitive application[s] while refusing

to comply with the terms of [the] MSA and [c]ourt [o]rders."

      In reply, defendant denied earning $2.8 million, denied being promoted

since they finalized the divorce, and certified "[his] income has remained


                                                                            A-0513-18T2
                                        16
virtually unchanged since [their] divorce[.]" Defendant averred his annual base

salary remained $461,600, and he received a gross bonus of $396,630, "of which

[p]laintiff will receive a share as additional alimony upon finalization of the

accountant's figures[.]"6 Further, to reinforce his assertion that plaintiff and

A.G. "are recognized as a couple in the [family] and social circles," defendant

provided a surveillance report and photos, documenting that A.G. and his

extended family attended an eighth grade graduation party for the parties' son at

plaintiff's shore home on July 28, 2018.

      On September 14, 2018, a different judge denied the portions of the

motions pertinent to these cross appeals.7 In an accompanying statement of

reasons, addressing the cohabitation issue, which the judge described as

defendant's "third bite at the apple," the judge refused to "disturb a well-

reasoned decision that has been decided twice before," with no "change" of

circumstances "since the time of those decisions[.]" Relying on the statutory

factors enumerated in N.J.S.A. 2A:34-23(n), the judge explained:


6
  Contrary to plaintiff's claim, defendant also certified that he had provided all
required documentation to the forensic accountant, and that his counsel was "in
constant contact" with the accountant to expedite the final report.
7
  Unrelated to the issues raised in these appeals, the judge granted plaintiff's
requests for the appointment of a parent coordinator, and the use of the My
Family Wizard program for communication.
                                                                          A-0513-18T2
                                       17
            While [p]laintiff is now engaged, [d]efendant has only
            been able to prove that the fiancé has overnight visits
            on multiple occasions, especially when the [p]laintiff is
            hosting a party. The fact that the [p]laintiff openly
            shows her family and friends that she is in a relationship
            is not a deciding factor. Neither is the fact that the
            couple's children have met and spent time together.
            Even more significantly, [p]laintiff's fiancé lives in
            Virginia and the couple does not have intertwined
            finances.

      Rejecting defendant's contention that he made the requisite showing of

cohabitation as defined in their MSA, the judge disagreed that "[p]laintiff 's

relationship [with A.G. was] truly . . . one that [was] 'mutually supportive,' as

stated in the parties' definition of cohabitation." In that regard, the judge agreed

with the prior judge that while "plaintiff and [A.G.'s] engagement [was]

certain[l]y relevant," it was "not dispositive considering the absence of

economic support[,]" and the fact that the couple "live[d] and maintain[ed]

homes in two different states[.]"

      Addressing the parties' respective salary increases since the time of the

divorce to establish the requisite changed circumstances, as to defendant's

contention, the judge acknowledged the conflicting certifications, but

determined that "[e]ven assuming the facts alleged by the [d]efendant," the

"percentage of permanent increase" between the parties was "not significant"

"under the circumstances" to warrant "a recalculation" of alimony. Relying on

                                                                            A-0513-18T2
                                        18
Glass v. Glass, 366 N.J. Super. 357 (App. Div. 2004), the judge explained that

"a supported spouse's increase in income does not, in and of itself, constitute a

substantial change in circumstances warranting a reduction or termination of

support, even when such an increase enables the supported spouse to maintain

the standard of living enjoyed during the marriage, without the need for

support."

      Turning to plaintiff's request to recalculate child support based on

defendant's "significantly" increased income, the judge found that, based on

defendant's statements, "his expected earnings will be $1.4 million, including

stock gains subject to additional distributions[,]" rather than $2.8 million as

alleged by plaintiff. As to plaintiff, the judge determined "[p]laintiff's income

has increased by [thirteen percent.]" Despite finding "that both parties['] salaries

have increased, as well as the parties['] stock gains and required distributions

pursuant to the MSA[,]" the judge found no "change in circumstances to warrant

a modification of child support."

      Finally, the judge denied plaintiff's request to hold "[d]efendant in

contempt of court," ordered "[d]efendant to comply with all outstanding [o]rders

as well as any requirements left uncompleted from the MSA[,]" and denied both

parties' requests "for counsel fees." Considering Rule 4:42-9 as well as the Rule


                                                                            A-0513-18T2
                                        19
5:3-5(c) factors, the judge relied on the "ongoing issues between the parties,"

"their inability to communicate," as well as the fact that "[b]oth parties are

financially sound, and able to pay their respective fees" to support his decision

denying counsel fees. These appeals followed.

                                        II.

      Our scope of review of Family Part orders is limited. Cesare v. Cesare,

154 N.J. 394, 411 (1998). "[R]ecognizing the special expertise of judges hearing

matters in the Family Part, we accept the trial judge's conclusion when

evidentially supported." Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div.

2010) (citing Cesare, 154 N.J. at 412). We will only intervene "to 'ensure that

there is not a denial of justice'" when the trial court's conclusions are "'clearly

mistaken' or 'wide of the mark[,]'" ibid. (quoting N.J. Div. of Youth & Family

Servs. v. E.P., 196 N.J. 88, 104 (2008)), "or when we determine the court has

palpably abused its discretion." Id. at 47 (citing Cesare, 154 N.J. at 412).

"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 v. Landers, 444 N.J. Super. 315, 319 (App. Div.

2016) (alteration in original) (quoting D'Agostino v. Maldonado, 216 N.J. 168,

182 (2013)).


                                                                           A-0513-18T2
                                       20
      Guided by these standards, we turn to the parties' specific arguments.

Defendant    argues   that   "[n]otwithstanding    the   abundance    of    proofs

demonstrating a strong likelihood that [p]laintiff and [A.G.] were engaged in the

type of mutually supportive, intimate personal relationship contemplated by the

parties as justifying a review of alimony in their MSA, the [t]rial [c]ourt denied

[his] request for any relief on the issue."       Defendant asserts the court's

"determination that [d]efendant had not met his prima facie burden of

demonstrating cohabitation went against the weight of the evidence[,]" and "[a]s

such, . . . must be reversed, and the matter remanded for discovery and a plenary

hearing." We agree.

      It is well established that cohabitation by a dependent ex-spouse

constitutes a changed circumstance that could justify a modification of the

supporting ex-spouse's alimony obligation. Gayet v. Gayet, 92 N.J. 149, 154-

55 (1983). In Landau v. Landau, ___ N.J. Super. ___ (App. Div. Sep. 12, 2019),

we recently held that "the changed circumstances standard of Lepis v. Lepis, 83

N.J. 139, 157 (1980), continues to apply to a motion to suspend or terminate

alimony based on cohabitation following the 2014 amendments to the alimony

statute, N.J.S.A. 2A:34-23(n)." Landau, slip op. at 1-2. Those amendments

defined cohabitation as "involv[ing] a mutually supportive, intimate personal


                                                                           A-0513-18T2
                                       21
relationship in which a couple has undertaken duties and privileges that are

commonly associated with marriage or civil union but does not necessarily

maintain a single common household."           N.J.S.A. 2A:34-23(n).     Under the

statute, "[a] court may not find an absence of cohabitation solely on grounds that

the couple does not live together on a full-time basis." Ibid.

      Instead, courts "shall consider" the following factors "[w]hen assessing

whether cohabitation is occurring[:]"

            (1) Intertwined finances such as joint bank accounts
            and other joint holdings or liabilities;

            (2) Sharing or joint responsibility for living expenses;

            (3) Recognition of the relationship in the couple's social
            and family circle;

            (4) Living together, the frequency of contact, the
            duration of the relationship, and other indicia of a
            mutually supportive intimate personal relationship;

            (5) Sharing household chores;

            (6) Whether the recipient of alimony has received an
            enforceable promise of support from another person
            . . . ; and

            (7) All other relevant evidence.

            [Ibid. ]




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      In Landau, after carefully reviewing the amendments, "we [saw] no

indication the Legislature evinced any intention to alter the Lepis changed

circumstances paradigm when it defined cohabitation and enumerated the

factors a court is to consider in determining 'whether cohabitation is occurring'

. . . ." Landau, slip op. at 13 (quoting N.J.S.A. 2A:34-23(n)). We determined

the party seeking modification still bears the burden of establishing "[a] prima

facie showing of changed circumstances . . . before a court will order discovery

of an ex-spouse's financial status[.]" Id. at 17 (alteration in original) (quoting

Lepis, 83 N.J. at 157).

      In Gayet, the Court held that cohabitation of the dependent ex-spouse

constitutes a change of circumstances to justify the reduction or termination of

alimony by the supporting ex-spouse only if the economic benefit inuring to

either cohabitor is sufficiently material to justify relief. 92 N.J. at 154-55.

"Under this economic needs test, the reduction in alimony is granted in

proportion to the contribution of the cohabitor to the dependent spouse's needs."

Konzelman v. Konzelman, 158 N.J. 185, 196 (1999) (citing Gayet, 92 N.J. at

154-55).

      However, in Konzelman, after recognizing the enforceability of

cohabitation provisions in property settlement agreements, the Court held that


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"an agreement between the parties to allow cohabitation to terminate alimony

obligations can be a valid basis for discontinuing alimony, without regard to the

economic consequences of that relationship" provided that both parties have

agreed to this contingency. Id. at 196. According to the Court,

            a specific consensual agreement between the parties to
            terminate or reduce alimony based on a predetermined
            change of circumstances does not require an inquiry
            into the financial circumstances or economic status of
            the dependent spouse so long as the provision itself is
            fair.   Thus, where the parties have agreed that
            cohabitation will constitute a material changed
            circumstance, and that [the] agreement has been judged
            fair and equitable, the court should defer to the
            arrangements undertaken by the parties.

            [Id. at 197.]

      Here, the MSA specified "cohabitation in a mutually supportive, intimate,

personal relationship shall be considered a change of circumstances warranting

a review of alimony." Indeed, the prior judge's decision, upon which this judge

relied, found defendant's evidence established "an intimate and enjoyable

relationship, albeit one mutually supportive emotionally[.]"       However, by

dismissing the substantial evidence amassed by defendant, and requiring

evidence of intertwined finances and the couple living together on a full -time

basis to establish prima facie evidence of changed circumstances, the judge



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misapprehended the express provision of the MSA and the factors enumerated

in N.J.S.A. 2A:34-23(n).

      Thus, we agree with defendant that the judge committed reversible error.

Consistent with the procedure outlined in Lepis, the judge should have ordered

discovery, and held a hearing to address the material facts that were in genuine

dispute. 83 N.J. at 159-60. We therefore reverse and remand on this issue.

Based on our decision, we will not address defendant's alternate contention that

the judge misapplied Glass, 366 N.J. Super. at 361-62, in determining that

"[p]laintiff's substantial increase in income was not a change in circumstances

warranting a review of alimony." However, we do not limit the remand to the

cohabitation issue and direct instead that "[a]ll relevant considerations should

[be] addressed[.]" Id. at 376.

      In her cross-appeal, plaintiff argues the judge erred in denying her motion

for modification of child support based solely on the fact that both parties, rather

than defendant alone, had increased earnings since the divorce. According to

plaintiff, her "modest raise . . . only provide[d] further basis for the [c]ourt to

recalculate child support in light of [d]efendant's considerable increase in

earnings."




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      Like alimony, child support orders are subject to review and modification

"from time to time," N.J.S.A. 2A:34-23, "on a showing of 'changed

circumstances.'" Lepis, 83 N.J. at 146 (quoting Chalmers v. Chalmers, 65 N.J.

186, 192 (1974)).     Child support may be revised when the party seeking

modification satisfies the burden of showing a change of circumstances from

those defined in an existing order. See N.J.S.A. 2A:34-23; Lepis, 83 N.J. at 157;

Beck v. Beck, 239 N.J. Super. 183, 190 (App. Div. 1990). Significant changes

in income or earning capacity of either parent may result in a finding of changed

circumstances as "[c]hildren are entitled to have their 'needs' accord with the

current standard of living of both parents, which may reflect an increase in

parental good fortune." Zazzo v. Zazzo, 245 N.J. Super. 124, 130 (App. Div.

1990).

      Applying this standard, we are satisfied plaintiff made the requisite

showing based on the increased income and earning capacity of both parties.

Further, given the significant disputed facts surrounding defendant's income and

earning capacity, plaintiff has demonstrated her entitlement to reciprocal

discovery to test defendant's representations regarding his earned income,

earning ability, and discretionary bonuses. Indeed, the "complete financial

information of both parents [is] necessary for any order of child support." Id. at


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129. If necessary, a plenary hearing should be conducted to resolve any material

facts in dispute. See Lepis, 83 N.J. at 159 (holding that a plenary hearing must

be conducted on a motion to modify support when there are genuine issues of

material fact that bear on a critical question).

      In her cross-appeal, plaintiff also challenges the judge's denial of counsel

fees. Plaintiff argues she was entitled to an award of counsel fees under the

MSA because defendant "failed to comply with prior [c]ourt [o]rders as well as

the[] MSA."      Plaintiff also asserts counsel fees are appropriate because

defendant acted "in the utmost bad faith" by "fil[ing] motion after motion

without the required new, substantial[,] and credible evidence."

      Rule 4:42-9(a)(1) authorizes the award of counsel fees in a family action.

In making the determination, pursuant to Rule 5:3-5(c), the court should

consider the following factors:

             (1) the financial circumstances of the parties; (2) the
             ability of the parties to pay their own fees or to
             contribute to the fees of the other party; (3) the
             reasonableness and good faith of the positions
             advanced by the parties . . . ; (4) the extent of the fees
             incurred by both parties; (5) any fees previously
             awarded; (6) the amount of fees previously paid to
             counsel by each party; (7) the results obtained; (8) the
             degree to which fees were incurred to enforce existing
             orders or to compel discovery; and (9) any other factor
             bearing on the fairness of an award.


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See also N.J.S.A. 2A:34-23.

      "The application of these factors and the ultimate decision to award

counsel fees rests within the sound discretion of the trial judge." Gotlib v.

Gotlib, 399 N.J. Super. 295, 314-15 (App. Div. 2008) (quoting Loro v. Colliano,

354 N.J. Super. 212, 227 (App. Div. 2002)). "We will disturb a trial court's

determination on counsel fees only on the 'rarest occasion,' and then only

because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298,

317 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).

      Here, under the MSA, the parties agreed that the party who brought a

successful enforcement motion for non-compliance with the MSA would be

entitled to counsel fees from the non-compliant party. However, plaintiff did

not prevail on her enforcement motion and does not challenge that determination

in her cross-appeal. Thus, plaintiff was not entitled to counsel fees under the

MSA provision. Additionally, the judge considered the financial circumstances

of the parties, determined both parties were able to pay their respective fees,

assessed the disputed issues and results obtained, and found no bad faith on the

part of defendant. Therefore, in denying counsel fees, the judge considered the

requisite factors.




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      We are satisfied the judge's decision reflects no clear abuse of discretion

to warrant reversal. In so concluding, we acknowledge plaintiff's frustration and

belief that "[d]efendant's actions are clearly retaliatory" and designed "to abuse

[p]laintiff through the legal system." We also "recognize the potential for abuse

of the judicial process and waste of personal and judicial resources implicit in

the making of repeated 'incremental' motions, and we vigorously disapprove

such a course of conduct." Beck, 239 N.J. Super. at 191. However, we also

recognize that a litigant "should not . . . ordinarily be penalized by the

deprivation of a remedy to which he would otherwise be entitled." Ibid.

      In sum, we affirm the judge's denial of counsel fees, but reverse the judge's

determination that both parties failed to establish a prima facie case of changed

circumstances to justify discovery and, if necessary, a plenary hearing.

Accordingly, we remand for the judge to permit the parties to engage in

reciprocal discovery, and conduct a plenary hearing, if warranted. To the extent

we have not addressed a particular argument, it is because either our disposition

makes it unnecessary or the argument was without sufficient 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.


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