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DOCKET NO. A-5105-06T35105-06T3








Argued October 8, 2008 - Decided:

Before Judges Rodr guez and Waugh.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FM-14-323-02.

Toby Solomon argued the cause for appellant (Toby Solomon, LLC, attorneys; Ms. Solomon and Laurie J. Madziar, on the briefs).

Caryl Wolfson Leightman argued the cause for respondent (Caryl Wolfson Leightman, PA, attorney; Robert S. Dorkin, on the brief).


Defendant Jane Rothfeld appeals the denial of her application to increase the amount and extend the term of her limited duration alimony. She also appeals the denial of her request, in the alternative, for an increase in child support. We reverse and remand for further proceedings consistent with this opinion.


Jane was married to plaintiff Samuel Rothfeld from September 19, 1996, until their divorce on March 17, 2003, less than seven years. They have two children: Jonathan (a fictitious name), who was born on September 19, 1996; and Martin (a fictitious name), who was born on September 15, 1998. Both Jane and Samuel are members of the New Jersey Bar. Samuel has an active private practice. For reasons that will be discussed at length below, Jane has not returned to active practice. She contends that her parenting obligations with respect to the children, particularly Jonathan, prevent her from doing so.

The parties share joint legal custody of their children, with Jane designated in their property settlement agreement (PSA) as the parent of primary residence. Samuel has "liberal and reasonable rights of parenting time," with the specifics to be agreed upon between the parties. Pursuant to the PSA, Samuel pays child support in the amount of $500 per week, which is above the child-support guideline amount "in recognition of the total support amount being paid by [Samuel] including alimony." Other expenses related to the children, including Jane's work-related childcare expenses and unreimbursed childcare expenses after the first $250 per child, are to be split between the parties. Samuel is generally required to pay eighty percent of those expenses, with Jane paying the remaining twenty percent.

In reaching their divorce settlement, the parties agreed upon "limited duration alimony" in the amount of $500 per week for four years, effective April 1, 2003. According to Jane, at the time the PSA was negotiated, "it was assumed that [she] would be able to obtain per diem work in the law field." According to Samuel, the discussions centered on whether the alimony should be described as limited duration or rehabilitative. He recalled that Jane "did not want the alimony to be labeled rehabilitative because [she] had no intensions of going back to work on a full-time basis," an assertion that Jane denies. Both parties appear to agree, however, that there was never discussion of permanent alimony arising out of their less than seven-year marriage. In fact, Jane did not seek permanent alimony in the motion involved in this appeal.

The PSA also provided that Jane would receive title to the marital home, subject to the existing mortgage. The home was listed for sale at the time of the divorce, and has subsequently been sold. Jane and the two children now reside in a townhouse. Jane waived any interest in Samuel's legal practice.

At the time the PSA was negotiated and signed, Jonathan was approximately six and a half years old. He was having some difficulties in school; and there was some concern that he might have attention deficit disorder. In the years following the divorce, he has been diagnosed with the following disorders: (1) attention-deficit/hyperactivity disorder; (2) obsessive-compulsive disorder; (3) Asperger's disorder (a form of autism); and (4) bipolar disorder. The most recent diagnosis came in 2007, between the filing of the motion involved in this appeal and the filing of Jane's reply brief.

As a consequence of his various disorders, Jonathan takes multiple medications and is treated by several mental health professionals on a regular basis. As his disorders developed and progressed, Jonathan's conduct, both at school and at home, became progressively more problematic. In 2007, he was transferred from public school to a non-residential special needs school.

According to Jane, her increased responsibilities with respect to Jonathan have prevented her from obtaining any significant employment. It appears from the record that the parties contemplated that Jane would continue to perform parental duties, but would also begin to obtain at least some per diem work as an attorney. As noted above, the PSA calls for Samuel to pay eighty percent of Jane's work-related childcare expenses. Given the 80/20 split of the additional expenses related to the children, the parties do not appear to have contemplated that Jane's income from per diem work would in any way approximate Samuel's income.

On March 29, 2007, Jane filed a post-judgment motion seeking the following relief: (1) the continuation of alimony until Jonathan graduates from high school; (2) an increase of the alimony to $800 per week; (3) the production of updated financial information; (4) an increase in child support if the court denied relief with respect to the alimony; (5) the establishment of a fund for Jonathan's care after he reaches age eighteen; and (6) counsel fees. The notice of motion specifically requested oral argument. Samuel opposed the motion, arguing that Jane was bound by the PSA, which they had both agreed was fair and equitable at the time they executed it, and that she had not sufficiently demonstrated an inability to work part-time.

Despite the request for oral argument and the clear requirements of Rule 5:5-4(a), the motion judge refused oral argument. On May 4, 2007, he entered an order denying all of the requested relief, except for the request that Samuel supply his current financial information. The motion judge appended a statement of reasons, the bulk of which, more than half a page, explained his reasons for denying oral argument.

Substantively, the trial judge wrote:

The Court has denied the Defendant's request to extend the Plaintiff's alimony obligation pursuant to the parties' Property Settlement Agreement. The Court is aware of the change in circumstances due to [Jonathan's] increased needs; however, the Defendant is already required to pay child support in the amount of $500 per week and is responsible for paying a portion of the children's extra-curricular activities which would include [Jonathan's] additional needs. For the above reasons the Court has denied the Defendant's requested relief with the exception of paragraph 3 of Defendant's Order [requesting Plaintiff's current financial information].

. . . .

The Court has carefully considered the parties' requests for counsel fees pursuant to the factors in R. 1:10-3.
The Court has denied the Defendant's request for counsel fees for the Court has not found that the Plaintiff has acted in bad faith. In the absence of such a finding or other basis by statute, an award is denied.

This appeal followed.

After the filing of the notice of appeal, the motion judge issued an amplification of statement of reasons, as permitted by Rule 2:5-6(c).

In addition to the Statement of Reasons provided with the Court's Order of May 4, 2007, the Court further finds that at the time the parties entered into the Property Settlement Agreement they had some awareness and knowledge as to difficulties that their son, [Jonathan], was experiencing. The instant application seeks to extend alimony principally based upon [Jonathan's] mental health disabilities. Neither party refutes that [Jonathan] has these disabilities and that he is presently seeking psychiatric help and may have to be educated outside of the mainstream. The Court further considered the fact that the defendant argues that she had planned at the time of the divorce in 2003 to obtain part-time work. The plaintiff has disputed that he has a lack of involvement in his children's lives which would have prohibited the defendant from being in a position to obtain gainful employment. In essence, the defendant has sought to rewrite the Property Settlement Agreement that she entered into in March of 2003 as to alimony and has argued that there is a change of circumstances relative to child support. The Court found upon a careful and thorough review of the record before it that there was no basis to rewrite the Agreement between the parties. The Court reviewed the Agreement and determined even under the present circumstances that the Agreement was entered into freely and voluntarily. In Peters[e]n v. Peters[e]n, 85 N.J. 638 (1981), our Supreme Court held:

We have recognized and emphasized repeatedly that matrimonial agreements between spouses relating to alimony and support, which are fair and just, fall [within] the categor[y] of contracts enforceable in equity. Such agreements are essentially consensual and voluntary in character and therefore entitled to considerable weight with respect to their validity and enforceability . . . [.]

Peters[e]n at 632 [(internal citations omitted)].

Neither party has argued that the Agreement was not equitable and just. Simply stated, the defendant argues that she should be entitled to alimony to sustain the marital lifestyle. She has the burden of demonstrating that she has been and is unable to obtain work even on a part-time basis. It is clearly the burden of the movant to demonstrate that she is entitled to some "reformation" of the Agreement. Here, there has been no demonstration that she has attempted to obtain employment or has obtained employment and has determined that her child care responsibilities prohibit her from maintaining that employment. Should that occur in the future, a reviewing Court could certainly consider that as evidence of her present claim.

The Court has also considered the position of the plaintiff wherein he states that not only would he be willing to undertake additional parenting time but further that he had agreed pursuant to the Agreement to pay for extracurricular activities and to pay for other additional expenses. To the extent that the child support agreed upon by the parties at the time of the divorce may not cover these unanticipated expenses, the plaintiff is already bound by the Agreement to contribute to these expenses. This, too, was considered by the Court during its review and consideration of the arguments raised by both parties.

The Court further finds that to the extent there have been "changed circumstances," those circumstances were anticipated and any additional expense related to [Jonathan's] care will be the responsibility of the plaintiff as well as the defendant going forward. Finally, when the parties entered into the Agreement, they agreed that the term of alimony would be for a limited duration of four years. The Court finds that the defendant has not met her burden to demonstrate that such an Agreement was unjust or unreasonable. Finally, the Court notes that no application was made by the defendant for modification of child support based upon the termination of alimony to which she may have putatively be entitled. The Court could not consider that relief sua sponte in fairness to the plaintiff. A loss of alimony would have some impact when utilizing the Child Support Guidelines. Again, no application was brought by the defendant in this regard and the Court could not address that form of relief.


Before turning to the substantive issues on appeal, we address the issue of oral argument. The motion judge's explanation of his denial of oral argument centered on his apparent view that oral argument is held primarily for the benefit of the court. We disagree.

Rule 5:5-4(a) provides: "Motions in family actions shall be governed by R. 1:6-2(b) except that, in exercising its discretion as to the mode and scheduling of disposition of motions, the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions and ordinarily deny requests for oral argument on calendar and routine discovery motions." In Mackowski v. Mackowski, 317 N.J. Super. 8, 14 (App. Div. 1998), we made the following observations concerning the requirements of Rule 5:5-4(a):

Lastly, we must comment on the refusal to grant defendant's request for oral argument. R. 5:5-4(a) grants discretion to the trial judge to allow oral argument but provides that "the court shall ordinarily grant requests for oral argument on substantive . . . motions." We have interpreted this rule as mandating argument when significant substantive issues are raised and argument is requested. Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997). . . . The denial of such argument deprives litigants of an opportunity to present their case fully to a court. Denial of such a right, given the issues in dispute, was an abuse of discretion and was violative of both the letter and spirit of R. 5:5-4(a).

[(emphasis added).]

In our view, the issues raised in the motions were clearly "significant substantive issues." Oral argument provides a motion judge the opportunity to interact directly with counsel in an effort to resolve outstanding issues. Oral argument in this case would, for example, have alerted the trial judge to the fact that an increase in child support was raised as an alternative form of relief requested in the notice of motion. Consequently, he would not have been acting "sua sponte" had he addressed the issue.

We now turn to the question of whether and under what circumstances the limited duration alimony is subject to extension or increase, or both. "Limited duration" alimony is an alternative to permanent alimony to be considered when the trial court determines that permanent alimony is not appropriate; but it is not to be used as a substitute for permanent alimony when permanent alimony "would otherwise be awarded." N.J.S.A. 2A:34-23(c). Limited duration alimony reflects the general principal that a marriage is a partnership, as well as the fact that there are cases in which an award of permanent alimony and an award of no alimony would be equally unjust. Cox v. Cox, 335 N.J. Super. 465, 479-80 (App. Div. 2000).

The statute specifically provides that, in "determining the length of the term, the court shall consider the length of time it would reasonably take for the recipient to improve his or her earning capacity to a level where limited duration alimony is no longer appropriate." N.J.S.A. 2A:34-23(c); Cox, supra, 335 N.J. Super. at 481 (quoting Report of the Commission to Study the Law of Divorce, Recommendation 13 (Apr. 18, 1995) (Divorce Study Commission Report), at 46-47). However, the statute also limits the authority of the courts to modify limited duration alimony, as follows: "An award of alimony for a limited duration may be modified based either upon changed circumstances, or upon the nonoccurrence of circumstances that the court found would occur at the time of the award. The court may modify the amount of such an award, but shall not modify the length of the term except in unusual circumstances." N.J.S.A. 2A:34-23(c).

In Gordon v. Rozenwald, 380 N.J. Super. 55, 66-67 (App. Div. 2005), we determined that, given the statutory scheme, it was important to ensure that properly-awarded limited duration alimony was not turned into permanent alimony through repeated extensions of the term, in addition to ensuring that limited duration alimony was not used as an inappropriate substitute for permanent alimony. The heightened standard for extending the term of limited duration alimony, "unusual circumstances," was intended to preclude such unwarranted extensions. Ibid. We also noted that the "premise for a term of limited duration alimony under N.J.S.A. 2A:34-23(c) is primarily historical not predictive." Gordon, 380 N.J. Super. at 68 (emphasis added). Consequently, we concluded, modification of the length of the term would "not ordinarily be equitable and fair." Ibid. (internal quotation and citation omitted).

Here, the parties entered into a PSA settling their differences and included a provision for a term of limited duration alimony. New Jersey has a policy of favoring the use of consensual agreements to resolve marital controversies, and such agreements are accorded "prominence and weight." Konzelman v. Konzelman, 158 N.J. 185, 193 (1999). "'[F]air and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed.'" Id. at 193-94 (quoting Smith v. Smith, 72 N.J. 350, 358 (1977)). However, "[d]ivorce agreements are necessarily infused with equitable considerations and are construed in light of salient legal and policy concerns." Id. at 194 (citing Petersen v. Petersen, 85 N.J. 638, 642 (1981)). They are enforceable if found to be fair and just. Ibid. For that reason, "[incorporation] of a [PSA] into a divorce decree does not render it immutable." Ibid. "Courts have continuing power to oversee [such] agreements, and . . . to modify [a PSA] on a showing of 'changed circumstances.'" Ibid. (citation omitted). "The equitable authority of a court to modify support obligations in response to changed circumstances, regardless of their source, cannot be restricted." Lepis v. Lepis, 83 N.J. 139, 149 (1980). However, as noted, N.J.S.A. 2A:34-23(c) requires that an extension of the term of limited duration alimony must be based upon a finding of "unusual circumstances," rather than merely "changed circumstances."


Turning to the facts of this case, the issue becomes whether Jane has presented a prima facie case for (1) an increase in the amount of the limited duration alimony based upon "changed circumstances"; and (2) an extension of the length of the term based upon "unusual circumstances," both pursuant to N.J.S.A. 2A:34-23(c). We are satisfied that she has. However, we find that there are genuine issues of material fact requiring that the ultimate determination of her entitlement to relief be based upon facts established at an evidentiary hearing. See Lepis, supra, 83 N.J. at 157.

First, we believe that Jane has made a sufficient prima facie showing that Jonathan's current mental-health condition was not anticipated at the time of the divorce. Although it appears that, at the time the PSA was being negotiated, there was some manifestation of behavioral problems at school, which were attributed to the possibility of attention-deficit disorder, his later diagnoses of Asperger's disorder and bipolar disorder presented significantly more serious disorders with potentially greater impact on Jonathan's life, as well as Jane's as his parent of primary residence. It is by no means clear on the record before us that either parent anticipated that Jonathan would not be able to continue in the public school system or that Jane would be required to be as available for intervention during working hours when problems arose at school. While the nature of that impact may be a matter of proof, it is an issue not appropriately decided on the papers and without oral argument.

Second, although Gordon, supra, holds that the basis for the length of the term of limited duration alimony is "primarily historical not predictive," 380 N.J. Super. at 68 (emphasis added), it is by no means clear that such was the case here. Jane certified that the parties assumed she would be able to obtain per diem legal work, which strongly suggests the presence of "predictive" considerations in connection with the length of the term. Even Samuel concedes that there was a question as to whether the alimony should be denoted "limited duration" or "rehabilitative," again suggesting the possibility of a "predictive" component in setting the termination date. Plus, as previously noted, N.J.S.A. 2A:34-23(c) itself requires a court awarding limited duration alimony to "consider the length of time it would reasonably take for the recipient to improve his or her earning capacity to a level where limited duration alimony is no longer appropriate."

The Family Part will need to determine the extent to which there was a "predictive" element in the choice of the termination date. That finding will inform, but not necessarily determine, its analysis of all of the relevant facts in deciding whether this case presents the type of "unusual circumstances" that warrant an extension of limited duration alimony pursuant to N.J.S.A. 2A:34-23(c). The trial court will also need to determine whether any increase in the amount of alimony is warranted.

We agree that Jane's proofs with respect to her efforts to find employment were slim, at best. We nevertheless believe that there was sufficient support in the record, primarily in Jane's certification, to warrant further judicial inquiry into her assertion that her parenting duties related to Jonathan's behavioral issues precluded either the anticipated employment as a per diem workers' compensation attorney or some other form of employment. Again, these are matters of proof that do not lend themselves to determination on the papers.

In the event the Family Part concludes, after appropriate findings of fact and conclusions of law, that there is no factual or legal basis to adjust the provisions of the PSA with respect to the length of the limited duration alimony, it will need to consider whether there is a need to adjust the amount of the child support to reflect the termination of the alimony and the apparently changed circumstances with respect to Jonathan's needs. That issue was raised by Jane in her moving papers and was appropriately before the motion judge on the original motion.

That the PSA included a mechanism for the payment of extraordinary expenses, such as unreimbursed medical expenses, does not necessarily mean that no adjustment is required if it is determined that Jane's daily or routine child-related need for support has increased because of either the termination of alimony, her good faith inability to obtain employment, or the apparent change in circumstances related to Jonathan's mental-health issues, or some combination of those factors. It must always be borne in mind, however, that the "purpose of child support is to benefit children, not to protect or support either parent" and that "the right to child support belongs to the child, not the custodial parent." J.S. v. L.S., 389 N.J. Super. 200, 205 (App. Div. 2006), certif. denied, 192 N.J. 295 (2007).


Based upon our review of the facts in the record before us and the law as discussed above, we have concluded that the motion judge should have granted oral argument and ultimately held an evidentiary hearing to determine whether Jane was entitled to a change in the amount or duration, or both, of the limited duration alimony. We have also determined that the issue of an increase in child support, as alternative relief, was properly before the motion judge. Consequently, we reverse those portions of the May 4, 2007, order under appeal and remand for further proceedings consistent with this opinion. We decline Jane's invitation to exercise our original jurisdiction and to resolve these issues directly, R. 2:10-5, because there are genuine issues of material fact that must be resolved after an evidentiary hearing. In light of that resolution, the issue of counsel fees will also need to be revisited. We note, however, that the motion judge did not address all of the relevant criteria before denying counsel fees. See R. 5:3-5(c); Williams v. Williams, 59 N.J. 229, 233 (1971).

Reversed and remanded.


The parties have engaged in mutual recrimination with respect to the extent of Samuel's participation in Jonathan's care. However, Samuel does acknowledge that the hours he is required to spend on his legal practice, which is the primary source of income for his children, have precluded his full participation. He has also acknowledged that he spends a relatively limited amount of time with his children.

"Rehabilitative" and "reimbursement" alimony are the two other statutory alternatives to permanent alimony. N.J.S.A. 2A:34-23(c). The former is to be "awarded based upon a plan in which the payee shows the scope of rehabilitation, the steps to be taken, and the time frame, including a period of employment during which rehabilitation will occur." N.J.S.A. 2A:34-23(d). The latter is to be "be awarded under circumstances in which one party supported the other through an advanced education, anticipating participation in the fruits of the earning capacity generated by that education." N.J.S.A. 2A:34-23(e). See Cox v. Cox, 335 N.J. Super. 465, 474-76 (App. Div. 2000).

The Divorce Study Commission had recommended that the courts not have any authority to extend the term of limited duration alimony. Cox, supra, 335 N.J. Super. at 481 (quoting Divorce Study Commission Report, supra, at 47). Significantly, in our view, the Legislature chose not to adopt that recommendation.

We do not understand the statute as absolutely precluding such relief even if there was no "predictive" basis for the termination date.

As noted, Jane claims that Samuel does not help with child care, especially as to Jonathan. If the amount of child support does not now reflect any discount for parenting time by Samuel, there may be no grounds for adjusting the amount of child support on that particular basis. However, the issue of child support must be reviewed on an overall basis.






November 3, 2008


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