                        NOT FOR PUBLICATION WITHOUT THE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-2131-15T2

PHILIP J. WISOFF,

        Plaintiff-Appellant,

v.

BARBARA WISOFF,

     Defendant-Respondent.
__________________________________________

              Argued May 9, 2017 – Decided August 29, 2017

              Before Judges Espinosa and Grall.

              On appeal from the Superior Court of New
              Jersey, Chancery Division, Family Part,
              Union County, Docket No. FM-20-1693-03.

              Tanya N. Helfand argued the cause for
              appellant (Helfand & Associates, attorneys;
              Ms. Helfand, of counsel and on the briefs).

              Anastasia Latsos argued the cause for
              respondent (Weinstein Lindemann & Weinstein,
              attorneys; Jeffrey P. Weinstein, of counsel
              and on the brief; Ms. Latsos, on the brief).

PER CURIAM

        Plaintiff Philip J. Wisoff appeals the denial of a post-

judgment motion seeking modification of his alimony and child

support obligations.         We reverse and remand for further
proceedings in conformity with Lepis v. Lepis, 83 N.J. 139

(1980) and Morris v. Morris, 263 N.J. Super. 237 (App. Div.

1993).

                                    I.

    The Wisoffs married in August 1979.      Both were graduates of

Brown University, and plaintiff had a master's of science degree

in computer engineering from Stanford University.     Defendant had

studied "studio design" at Brown.     The Wisoffs have two

children, one born in 1986 and the other in 1989.

    Starting in 1986 and throughout the remainder of the

marriage, defendant focused on child-rearing and the home.        She

also had medical issues to address.      She had spinal surgery in

2000 but at maximal medical benefit in 2002 had difficulty

standing or sitting for prolonged periods that was not expected

to improve; she was, however, otherwise able to "participate in

the majority of activities of daily living."

    Throughout the marriage, plaintiff worked in his field.

For many years he was the information technology executive for

well-known professional firms in New York City.      In 2001, he

earned $309,881, which included salary and bonus.

    The Wisoffs divorced in June 2003, after twenty-four years

of marriage.   Plaintiff was forty-eight years old, defendant

forty-six and their children seventeen and fourteen.     The

                                2                              A-2131-15T2
Wisoffs resolved all ancillary issues — parenting, child

support, alimony and equitable distribution — with a

comprehensive and detailed property settlement agreement (PSA).

They negotiated the PSA, each assisted by an experienced

attorney specializing in matrimonial law.1

       Plaintiff assumed significant support obligations in the

PSA.   He agreed to pay defendant $3500 child support monthly,

$1750 per child, and to maintain the children's medical

insurance equivalent to the coverage they had prior to the

divorce.    He also agreed to pay for their education through

college and professional school, a contribution broadly defined

to include related expenses.    The PSA provides for a reduction

of cash support to $437.50 monthly on each child's eighteenth

birthday and until the child's twenty-second birthday.     With

each reduction to $437.50, plaintiff agreed to assume

defendant's responsibility for the child's expenses she paid

prior to the reduction.

       The PSA addressed emancipation, which the Wisoffs agreed to

delay beyond a child's twenty-third birthday if "injury, illness

or disability of the child" precluded such independence.


1
  The Wisoffs were and are represented by different attorneys in
this post-judgment matter in the trial court and on appeal.



                                 3                          A-2131-15T2
       Plaintiff's base alimony obligation under the PSA was $8050

monthly alimony plus defendant's quarterly estimated tax due on

that alimony.2    Paragraph 16 of the PSA explains the alimony

amount was "agreed to and established with respect to support at

a standard of living commensurate with the social status, wealth

and income of the parties during the marriage."    That is the

standard under Crews v. Crews, 164 N.J. 11 (2000).

       Paragraphs 11, 12 and 13 of the PSA delineate circumstances

warranting upward and downward modifications of alimony.

Defendant's loss of COBRA benefits required a $400 monthly

upward modification, paragraph 11.    Defendant's earning income

from work or profit from business requires a downward

modification of alimony and provides a formula for that

adjustment, paragraph 12.    Increases in the cost of living

require annual upward modification in conformity with the

Consumer Price Index (CPI), unless plaintiff's "annual earned

income increase percentage is less than the CPI," in which case

defendant "receive[s] the lesser of the CPI or [plaintiff's]


2
    In pertinent part paragraph 9 provides:

            The Husband shall pay to the wife, as
            alimony, the sum of $8,050.00 per month
            . . . . The Husband shall also pay to the
            wife . . . the taxes due on her alimony
            . . . .


                                  4                         A-2131-15T2
raise," paragraph 13.   Paragraph 14 addresses termination of

alimony.

    Paragraph 15 precludes modifications not expressly provided

as follows:

                [Plaintiff's] aforementioned obligation
           to pay alimony to the [defendant] shall be
           non-modifiable, except as set forth herein,
           regardless of any future changes in
           circumstances, whether foreseen or
           unforeseen, including, but not limited to,
           the following:

                (a) the subsequent acquisition (by
           inheritance, gift or otherwise) or loss of
           assets by either of them;

                (b) the dissipation (whether negligent
           or not) of the assets received by each of
           them as and for equitable distribution in
           this matter;

                (c) substantial changes in either
           party's physical or mental health;

                (d) change in the Federal and/or State
           income tax laws[.]

           [(Emphasis added).]

    Plaintiff's earnings increased following divorce.     A March

2007 consent order reflects $490,000 earned income in 2006, a

compromise accounting for overlapping severance pay and salary




                                 5                         A-2131-15T2
he received when he changed jobs.    That compromise was one of

several the Wisoffs addressed in the consent order.3

     The Wisoffs' first-born was twenty-one years of age in 2007

and was living with defendant.   Under the PSA defendant would

have received $437.50 monthly support for that child, but

plaintiff agreed to pay $875 monthly effective January 1, 2007

unless the child attended college and lived elsewhere.

     Defendant was dealing with multiple spinal cysts in 2007

and had surgery to remove them in 2008.   Plaintiff agreed to

double his $400 monthly contribution to her health care costs

and to a $346 monthly cost of living adjustment.

     Implicitly acknowledging the 2007 deviations from the PSA's

anti-modification provision, the consent order provides:     "In

furtherance of [p]aragraphs 15, 16 and 17 of the PSA, the

defendant agrees that the plaintiff shal1 have no further

obligation to contribute to any additional amounts to [her]

health" care expense not "set forth in" the consent order.     With

the 2007 adjustments, plaintiff's monthly alimony obligation was


3
  Plaintiff's appendices include three copies of what he purports
to be the March 2007 consent order plaintiff signed on March 27
and defendant signed on March 28. They are found at pages 58
through 65 of his appendix and pages 57 to 64 and 873 to 879 of
his supplemental appendix. The purported orders differ, and
neither party addresses the obvious problem. The trial court
should address it on remand. None of the copies show the judge
whose signature appears on the final page filed the original.

                                 6                          A-2131-15T2
$9636, but only until December 31, 2007, when the next cost of

living adjustment would take effect.

    In the same consent order, the Wisoffs agreed to

recalculate alimony on plaintiff's retirement at age 65 or later

and provided a formula for computing the post-retirement amount.

Their formula excludes income or assets derived "from assets

equitably distributed to each under the PSA" and recognizes that

plaintiff had "$620,000" of excludable assets "as of February

28, 2007."   The Wisoffs also agreed to exclude income and assets

of plaintiff's second wife.

    Five years later in May 2012, defendant moved to enforce

plaintiff's child support obligation.   In response, plaintiff

filed a cross-motion to emancipate the Wisoffs' children, who

were then twenty-six and twenty-three years old.   Disabling

illness, requiring a series of hospitalizations and recovery,

had delayed the first-born's education and independence.    The

Wisoffs agreed to arbitrate those disputes.

    As explained in the arbitrator's written decision in June

2014, the Wisoffs partially resolved the issues in the May 2012

motions, and filed a second round of motions to resolve the

others.   A three-day hearing on emancipation and arrears

commenced on March 14, 2014.   The arbitrator emancipated the

Wisoffs' second-born, but applying the provision of the PSA

                                7                           A-2131-15T2
delaying emancipation due to a child's illness or disability,

the arbitrator denied emancipation of the first-born and

directed plaintiff to provide the support required by the PSA.4

     Plaintiff lost his job before the arbitration hearing.      His

last employer severed the relationship in mid-July 2013.

Starting in August, plaintiff received seven months' pay

equivalent to his former salary over a six-month period —

through January 2014 — a total of $262,500, $37,500 monthly.

     After plaintiff's termination in July 2013, the trajectory

of his career reversed.   In the past, plaintiff had easily moved

from job to job.   Although plaintiff immediately commenced

efforts to find a new job with comparable pay,5 he had not found

one when he filed the motion to modify his support obligation in

September 2015 or when the judge denied that motion in December

2015.

     While continuing to look for employment in August 2013,

plaintiff also started his own consulting business, MTC


4
  The arbitrator also fixed child support arrears plaintiff owed
for both children, but that determination is irrelevant to the
issues raised on this appeal.
5
  Plaintiff submitted documentation of his efforts in a 556 page
exhibit, Exhibit I, to his certification in support of the 2015
motion. The table of contents entry is singular and general,
"Employment Attempts." Cf. R. 2:6-1(c) (requiring
identification of the initial page of each document, exhibit or
other paper included).

                                8                           A-2131-15T2
Services, LLC.     In addition, plaintiff joined the Cutter

Consortium as "a senior consultant," but he reported no earnings

from that association in 2014.

    In the trial court and on appeal, defendant submits that

plaintiff's job search was neither diligent nor sincere.      She

contends he was "offered" and rejected a job with a salary of

$250,000 in 2013.    But plaintiff asserted the job was not

offered and notes it would have required relocation to

Washington, D.C.    A series of e-mails plaintiff exchanged with a

recruiter in October 2013 discuss a job with that salary in the

Washington area.    The "offer" was an expression of interest in

plaintiff and the proposed salary was lower than plaintiff's

seven months' severance pay.    He advised the recruiter he was

passing "on the opportunity" but asked if the company was

interested in an "interim CIO," which he would consider.      The

recruiter explained that he had already suggested such an

arrangement and the company was not interested.

    Plaintiff's earnings in 2014 were minimal.     His August 20,

2015 Case Information Statement (CIS) and his 2014 tax return,

reflect $72,931 net profit from MTC and earned income of




                                  9                           A-2131-15T2
$43,750, the severance paid by his last employer in 2014.6       As

for 2015, the CIS reports average gross weekly earnings of $1554

from MTC, about $81,000 annually.       He certified he hoped to earn

$75,000 from MTC in 2015.

       In 2014, plaintiff's support payments were about $100,000

more than his earned income.    He paid $157,778 alimony7 and about

$20,400 child support and met those support obligations by

taking IRA distributions amounting to $160,900.       As a

consequence, he paid State and Federal taxes totaling $16,668,

including a $3164 penalty for distributions taken before he

reached the age of 59.5 years.    According to plaintiff, he had

no other way to meet his obligations and would have nothing left

for retirement if the obligations were not reduced.

                                      II.

                                       A.

       For reasons stated in a letter opinion of December 14,

2015, the judge declined to order discovery, denied modification



6
  The 2014 tax return appended to the CIS is a joint return that
includes business income earned by plaintiff's second wife. The
Schedule C for MTC indicates gross earnings of $37,956 and net
profit of $29,181, there is no W-2 included with the 2014 return
of appeal that documents the reported severance pay. A letter
from the tax preparer explains it.
7
    Reported on the 2014 tax return.


                                 10                           A-2131-15T2
of child support and alimony and awarded defendant a $2000

counsel fee.    As to child support, the judge concluded the

parties were "bound by the Order of Arbitration entered in June

of 2014, and should be precluded from relitigating the same

issue absent an additional change in circumstances."     As to

alimony, the judge enforced the "anti-Lepis" provision of the

Wisoffs' PSA and concluded this case was not sufficiently

"extreme" to warrant modification despite the "anti-Lepis"

clause.    See Morris, supra, 237 N.J. Super. 237.

                                     B.

       Courts have statutory authority to modify post-divorce

support "as circumstances may require," N.J.S.A. 2A:34-23, and

equitable authority to modify such obligations "in response to

changed circumstances [that] cannot be restricted," Lepis,

supra, 83 N.J. at 149.    "The proper criteria are whether the

change in circumstance is continuing and whether the agreement

or decree has made explicit provision for the change."      Id. at

152.   Where an "existing support arrangement has in fact

provided for the circumstances alleged as 'changed,' it [is] not




                                11                           A-2131-15T2
ordinarily . . . 'equitable and fair,' to grant modification."

Id. at 153 (quoting Smith v. Smith, 72 N.J. 350, 360 (1980)).8

     Changes in circumstance warranting modification include

increases or decreases in income or need, including need

attributable to illness or disability and changes in tax law.

Id. at 150-53.   The change must substantially affect need or

ability to provide support and cannot be speculative or

temporary.   See id. at 151-53; cf. N.J.S.A. 2A:34-23(j)

(providing for modification or termination of alimony based on

"prospective or actual retirement") and (k)(10) (precluding an

application based on job loss "until a party has been

unemployed, or has not been able to return to or attain

employment at prior income levels, or both, for a period of 90

days").9



8
  In this case there are no allegations of "unconscionability,
fraud, or overreaching in negotiations of the settlement," that
would provide a basis for invalidation or modification of a PSA.
J.B. v. W.B., 215 N.J. 305, 326 (2013) (quoting Miller v.
Miller, 160 N.J. 408, 419 (1999)).
9
  The subsections of N.J.S.A. 2A:34-23 cited above were amended
by L. 2014, c. 42 adopted on September 10, 2014 to take effect
"immediately" but are not to be "construed . . . to modify
specifically bargained for contractual provisions that have been
incorporated" into a judgment of divorce. They are cited here
to illustrate the Legislature's recognition of impropriety of
immediate modification and recognition of the importance of
leaving prior agreements providing solutions addressing a
specific changes of circumstance.

                               12                          A-2131-15T2
    On a prima facie showing of a decrease in income leaving a

supporting spouse unable to meet his or her own needs and

support obligations, discovery is warranted.   Id. at 157.

Without such discovery, a "court will be unable to make an

informed determination as to 'what, in light of all the

[circumstances] is equitable and fair.'"   Id. at 158 (alteration

in original) (quoting Smith, supra, 72 N.J. at 360).

    Following discovery, Lepis requires the judge to determine

whether there is a genuine dispute of material fact requiring a

hearing or whether modification can be resolved on undisputed

documentary evidence and facts stated in certifications.     Id. at

158-59 (citing among others Hallberg v. Hallberg, 113 N.J.

Super. 205, 208 (1971) (a case involving alimony and child

support)).

    Because the Wisoffs' PSA limits modification of alimony but

not child support, we address child support in subsection C and

alimony in subsection D.

                                      C.

    Plaintiff contends the judge erred in denying modification

of child support on the ground the arbitrator found the child

support amount appropriate in June 2014 and circumstances had

not changed since.   We agree.



                                 13                          A-2131-15T2
       The arbitrator did not address the amount of child support

because that issue was not raised.        The initial motions were

filed in May 2012, more than a year before plaintiff lost his

job.    Had plaintiff moved to expand the scope of arbitration to

reduce the amount of child support when he lost his job in July

2013, the application would have properly been denied as

premature and based on a temporary change not warranting

modification.    Lepis, supra, 83 N.J. at 146, 151-54.     Plaintiff,

after all, had a history of successful transition from job to

job, was looking for employment and continued to receive

severance pay equivalent to his final salary through January

2014.    The hearing commenced in mid-March of that year.

       To the extent the judge's letter opinion can be understood

to suggest collateral estoppel, application of that doctrine

would not equitable.    See Kozlowski v. Smith, 193 N.J. Super.

672, 675 (App. Div. 1984).    Accordingly, we reverse and remand

for further proceedings on child support in conformity with

Lepis.    The arguments defendant presents in favor of affirmance

have insufficient merit to warrant discussion in this opinion.

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

                                     D.

       In denying modification of alimony without discovery, the

judge relied upon paragraph 15 of the PSA, which broadly

                                14                             A-2131-15T2
prohibits any modification not specifically authorized in the

PSA.   The judge also followed decisional law favoring

enforcement of settlement agreements, especially in matrimonial

cases, precedents too well-settled to require explication here.

See J.B., supra, 215 N.J. at 326 (and cases cited therein).

       "Courts recognize the contractual nature of [PSAs].

Pacifico v. Pacifico, 190 N.J. 258, 265 (2007).     As contracts,

PSAs should be enforced according to the original intent of the

parties.    Id. at 266."   J.B., supra, 215 N.J. at 326.   In

discerning the parties' intent, "[c]ontracts should be read 'as

a whole in a fair and common sense manner.'"     Manahawkin

Convalescent v. O'Neill, 217 N.J. 99, 118 (2014) (quoting Hardy

ex rel. Dowdell v. Abdul-Matin, 198 N.J. 95, 103 (2009)).

       Plaintiff urges reversal on the ground that the judge

relied on selective provisions of the PSA and ignored others.

This objection is well-taken.

       Paragraph 12 provides a formula for downward modification

of alimony in the event of defendant's return to work or

starting of a business.    Similarly, paragraph 13 provides for a

modification of alimony based on increases in the CPI.        Read

together, paragraphs 12 and 13 further the purpose of the

alimony amount the Wisoffs agreed was proper — as paragraph 16

explains, an amount that provides "support at a standard of

                                 15                             A-2131-15T2
living commensurate with the social status, wealth and income of

the parties during the marriage."     Income defendant earns

decreases her need for alimony to support that marital lifestyle

and, therefore, warrants modification.    Similarly, CPI adjusted

increases address need created by inflation.    Lepis, supra, 83

N.J. at 153.

    Plaintiff presented evidence implicating paragraph 12 that

the judge did not consider.    We refer to the home page of

"Barbara Wisoff Designs."     That home page provides reason to

believe defendant owned and started a design business in 2010

and was still operating that business when plaintiff accessed

the home page in 2015.   Other than a bald denial, defendant

presented nothing to rebut the reasonable inference of profit

from business.   That evidence was sufficient to warrant

discovery pertinent to reduction of plaintiff's alimony

obligation as contemplated by paragraph 12.

    Because the judge should have directed discovery in

conformity with Lepis on that basis, a remand for that purpose

is required.

    We have considered plaintiff's objections to the PSA

contending the so called anti-Lepis clause lacked consideration

and that language in the PSA and March 2007 consent order

addresses tax consequences of alimony payments that warrant

                                 16                            A-2131-15T2
modification in light of additional tax he incurs in acquiring

the funds to make alimony payments.      Those arguments have

insufficient merit to warrant discussion in this opinion beyond

the brief comments that follow.       R. 2:11-3(e)(1)(E).

    As to lack of consideration for plaintiff's agreement to

forego modification based on a decline in his income, it

suffices to note this is a complex and carefully crafted PSA

with many trade-offs.     Paragraph 16 effectively forecloses

modification based on Crews and increases in plaintiff's income.

Paragraph 13's formula for CPI adjustments provides further

protection in the form of certainty against Lepis applications

based on inflation.   Moreover, paragraph 12, requiring a

reduction of alimony by a pre-ordained formula based on

defendant's earnings, can be viewed as another trade-off.         In

hindsight plaintiff may view the trade-offs as a poor deal, but

courts are not free to rewrite PSAs on that basis.      See J.B.,

supra, 215 N.J. at 326.

    As to tax consequences, the provisions of the PSA and March

2007 consent order plaintiff relies upon address tax deductions

for the alimony payments plaintiff makes.       They do not address

tax consequences related to tax on earned or unearned income

plaintiff utilizes to pay alimony.



                                 17                             A-2131-15T2
    In contrast, plaintiff's claim that the judge's reliance on

Morris was misplaced warrants discussion.    The alimony amount

the parties agreed to in Morris was not established "based upon

the parties' incomes and needs" and, therefore, was unrelated to

Lepis modifications.   263 N.J. Super. at 243.   The specific

arrangement at issue here, paragraph 15 of the PSA's expressly

limiting Lepis modifications, is plainly related to those Lepis

standards of need and ability to pay.

    Morris provides pertinent guidance, nevertheless.     In

Morris, Judge Drier considered the direction the Court provided

in Lepis when it stated it would "not ordinarily be 'equitable

and fair' to grant modification" where the existing support

arrangement addressed the circumstance in question.    Lepis,

supra, 83 N.J. at 153(emphasis added); Morris, supra, 253 N.J.

Super. at 242.   Judge Drier quoted an illustration provided in

Lepis as an example of a specific arrangement addressing a

changed circumstance — "a single large cash payment made at the

time of divorce was included with the express intention of

meeting the rising cost of living."     Morris, supra, 263 N.J.

Super. at 242 (quoting Lepis, supra, 83 N.J. at 153).     Judge

Drier focused on a footnote accompanying that illustration in

Lepis, supra, 83 N.J. at 153 n.6, which explained that if the

cash payment in its illustration later proved inadequate "in

                               18                           A-2131-15T2
light of prevailing circumstances," a court would be "free to

require greater support."    Morris, supra, 263 N.J. Super. at

242-43.    Considering the explanatory footnote, the court in

Morris reasoned that the Supreme Court approved recognition of

"the parties' standards as they may be reasonably enforced" in

"prevailing circumstances" and concluded Lepis allows

modifications of specific arrangements "only where the failure

to modify would be unreasonable or unjust" in "prevailing

circumstances."    Id. at 243.

       In Morris, the court identified the pertinent prevailing

circumstances and included "plaintiff's agreement to accept and

defendant's agreement to pay a fixed amount, regardless of

change in circumstances."    Id. at 242.   And the court found no

reason in equity to relieve the supporting spouse of his

agreement in the prevailing circumstances which included an

alimony amount unrelated to need and capacity to pay.     Id. at

244.    Nevertheless, in light of the impracticality of enforcing

an obligation the husband could not meet at the time,

demonstrated by the fact that he had already been detained for

non-payment, the Morris court provided a remedy in the form of

delayed payment and accrual of a debt to be satisfied at a later

date.



                                 19                         A-2131-15T2
    That guidance is pertinent to this case, and the judge

should consider it on remand.   Here, the "prevailing

circumstances" include not only paragraph 15 and the related

paragraphs of the Wisoffs' PSA but also the parties' deviation

from the PSA in their 2007 consent order.    Specifically, the

Wisoffs agreed to increase alimony by doubling plaintiff's

monthly contribution for defendant's health expenses in the face

of her enhanced need and to provide child support above the

level required by the PSA to more equitably address their first-

born's unanticipated needs.

    While not yet tested by discovery and cross-examination at

this point, the "prevailing circumstances" also include the fact

that application of the CPI has left defendant with the

continued benefit of alimony based on plaintiff's income from

plaintiff's post-divorce work and plaintiff with a need to

withdraw his share of retirement savings earned during the

marriage and distributed at the time of divorce in order to meet

his alimony obligation.

    To the extent defendant argues that she gave up a right to

share in plaintiff's post-judgment income to which she was

entitled, she is mistaken.    Because alimony was established to

provide defendant support at the marital standard and was

adjusted with the cost of living to address inflation, she was

                                20                          A-2131-15T2
not entitled to more.    Crews, supra, 164 N.J. at 29 (noting that

a dependent former spouse may not use motion to modify alimony

"to share in the post-divorce good fortune of the supporting

spouse"); see N.J.S.A. 2A:34-23(b)(4) (stressing that "neither

party [has] a greater entitlement to that standard of living

than the other"); Crews, 164 N.J. at 31-32 (noting the relevance

of the marital standard of living and other factors used in

setting the initial alimony where modification is at issue).

    Matters such as consideration of "prevailing circumstances"

are committed to the sound discretion of the trial court.

Morris, supra, 263 N.J. Super. at 245.    As in Morris, we defer

to that discretion and advise the judge to reconsider the

relevance of Morris on remand following discovery.

We also vacate the award of counsel fees which the judge should

reconsider because its propriety must abide the outcome on

remand.   Because fees for appellate service also must abide the

trial court's determinations on remand, we anticipatorily refer

any such application to the trial court for disposition.     R.

2:11-4.

    Reversed and remanded for further proceedings in conformity

with Lepis and Morris.   We do not retain jurisdiction.




                                21                          A-2131-15T2
