R.S. v. T.B.

NOT FOR PUBLICATION WITHOUT THE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-2326-16T2


R.S.,

        Plaintiff-Respondent,

v.

T.B.,

     Defendant-Appellant.
_______________________________

              Submitted January 8, 2018 – Decided May 11, 2018

              Before Judges Ostrer and Whipple.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Monmouth
              County, Docket No. FM-13-0991-04.

              Laterra & Hodge, LLC, attorneys for appellant
              (Matthew N. Tsocanos, of counsel and on the
              briefs).

              Ansell Grimm & Aaron, PC, attorneys for
              respondent (Donna L. Maul, of counsel and on
              the brief).

PER CURIAM

        Defendant T.B. appeals from an August 26, 2015 order of the

Monmouth County Family Part denying her motion for modification
of     alimony,   and    denying   her       January    5,   2017   motion   for

reconsideration.        Because the marital standard of living was not

established either at the time of divorce or at the modification

hearing, we reverse and remand for a hearing to first establish

the marital standard of living, and then to address the issue of

changed circumstances.

                                      I.

       We discern the following relevant facts from the record.

Defendant and plaintiff R.S. were married in June 1983, and had

two children.      During the course of the marriage, defendant was

periodically employed in real estate, at Jenny Craig, as a bank

teller, an administrative office assistant, and a hairdresser.

Plaintiff is a chef and restauranteur, and was also invested in

various business ventures.         However, at the time of the divorce,

plaintiff's interests in certain business ventures were ending and

he was expecting a buyout of his interest in the amount of

$909,000.     He listed his gross income for 2003 as $580,000.

       The   parties    experienced   a      "lavish"   lifestyle   during   the

marriage, and according to plaintiff's case information statement

at the time of the divorce, had combined monthly expenses that

were    $32,406.99.       According   to      defendant's    case   information

statement, her personal monthly expenses totaled $12,512.



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      In March 2005, plaintiff and defendant entered in to a dual

judgment of divorce, which incorporated a property settlement

agreement (PSA).         Under the PSA, the parties waived any and all

rights    to    assets       acquired    after     the     date    of   the    agreement.

Additionally, plaintiff was responsible for paying defendant $3000

per   month     in     permanent     alimony,          totaling   $36,000      per     year.

Further, he was responsible for the children's college expenses

and paid $1600 a month in support for their son and $700 per month

for their daughter.            Defendant agreed to be responsible for her

own expenses, including "household-related expenses, day-to-day

living expenses, automobile expenses, clothing expenses, medical,

dental, hospital, surgical, prescription, psychological, and any

other medically-related expenses."                     The parties also agreed that

neither party would be responsible for the medical insurance costs

of the other.

      Pertaining        to    the   equitable      distribution         of    assets,     the

parties waived any right or interest in the other party's bank

accounts,      past,     present,       or   future.        With    relatively         minor

exceptions      favoring       defendant,        the    parties    agreed     to    equally

divide the marital assets.               Defendant would receive half of the

sale proceeds from their marital home, which, less payments for

certain        bills     due,       amounted       to      approximately           $55,500.

Additionally, the parties' timeshare in Villa Roma, New York was

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to be signed over to defendant.              Altogether, defendant received

approximately $416,000 cash through equitable distribution.                       At

the time of the agreement, plaintiff's salary was $135,000 per

year, while defendant's salary was $10,000 per year.

     Plaintiff has seen success in his career post-divorce.                       He

is an Executive Chef and Partner of the TAO Group and has made

appearances on various television programs.              Meanwhile, defendant

asserts that after the divorce she suffered various disabling

medical conditions.        Additionally, she was involved in a car

accident    that      required    multiple        surgeries,    which     led     to

complications and other disabling conditions.                   Because of her

medical    conditions,     defendant        was   granted    permanent    medical

disability and receives approximately $900 per month.

     On March 26, 2015, defendant moved for an increase in alimony,

asking    for   the    increase     based    upon    "substantial       change    of

circumstances and inability to maintain the marital lifestyle

retroactive[ly]."        In   the    alternative,      she     sought    time    for

discovery, requested a court appointed forensic expert to examine

plaintiff's income, and requested a plenary hearing.                    Plaintiff

filed a cross-motion asking the court to deny defendant's notice

of motion and award him counsel fees.

     Defendant argues that while plaintiff has been able to return

to the standard of living the parties experienced during the

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marriage,    described     as     "ownership    in    a   successful   restaurant

franchise and income to cover high shelter expenses, new cars, a

generous allowance for personal expenses, luxurious vacations,

lavish entertaining and nice lifestyle for the entire family," she

has not.    In addition, defendant states she has never received a

cost of living adjustment to her alimony, which is why she filed

the motion for an increase in alimony ten years after the final

judgment of divorce.

       In August 2015, without oral argument, the court denied both

defendant's       motion   and    plaintiff's        cross-motion.        It     found

defendant failed to provide proof that her physical and medical

conditions hindered her ability to find employment in order to

supplement her income, and thus she did not meet her burden of

demonstrating a prima facie case of a substantial and permanent

change in circumstances.

       In September 2015, defendant moved for reconsideration of

this    order;    plaintiff      cross-moved,    asking     the   court    to      deny

defendant's motion for reconsideration and to award him counsel

fees.      Oral    argument      on   the   motion    for   reconsideration         was

eventually held in August 2016; the court reserved its decision.

       On January 5, 2017, the court granted partial reconsideration

but ultimately denied defendant's request for an upward alimony

modification and denied plaintiff's cross-motion for counsel fees.

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      This appeal followed.   On appeal, defendant argues the court

erred by denying her motion for upward modification, and that

changed circumstances existed, discovery should have been granted,

and that a plenary hearing was warranted.      She also argues the

modification judge effectively read in to the PSA an anti-Lepis1

clause in denying her request for modification of alimony.

                                 II.

      We "have a strictly limited standard of review from the fact-

findings of the Family Part judge."    N.J. Div. of Youth & Family

Servs. v. I.H.C., 
415 N.J. Super. 551, 577-78 (App. Div. 2010)

(citation omitted).    "[A]ppellate courts 'defer to the factual

findings of the trial court because it has the opportunity to make

first-hand credibility judgments about the witnesses who appear

on the stand; it has a feel of the case that can never be realized

by a review of the cold record.'"      N.J. Div. of Youth & Family

Servs. v. M.C. III, 
201 N.J. 328, 342-43 (2010) (quoting N.J. Div.

of Youth & Family Servs. v. E.P., 
196 N.J. 88, 104 (2008)).

Furthermore, deference is appropriate "[b]ecause of the family

courts' special jurisdiction and expertise in family matters[.]"

Cesare v. Cesare, 
154 N.J. 394, 413 (1998).     However, where the

findings of the trial court "went so wide of the mark that the



1
    Lepis v. Lepis, 
83 N.J. 139, 146 (1980).

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judge was clearly mistaken," this court will reverse.             N.J. Div.

of Youth & Family Servs. v. G.L., 
191 N.J. 596, 605 (2007)

(citation omitted).

     "Alimony     and   support   orders    define   only   the     present

obligations of the former spouses."        Crews v. Crews, 
164 N.J. 11,

28 (2000).   Therefore, our courts have the authority to modify or

alter support orders "from time to time as circumstances may

require."    
N.J.S.A. 2A:34-23.    A support order may be subject to

review and modification when a party has made a showing of "changed

circumstances."    Lepis, 
83 N.J. at 146 (citations omitted); Miller

v. Miller, 
160 N.J. 408, 419 (1999).       Modification of alimony will

be viewed in the context of changed circumstances for both judicial

decisions and consensual agreements.        Lepis, 
83 N.J. at 149.

     Parties can waive modification of alimony by including an

anti-Lepis clause into an agreement.         Morris v. Morris, 
263 N.J.

Super. 237, 240 (App. Div. 1993).          Such a clause is enforceable

provided the parties meet certain conditions.         Specifically, the

parties incorporating an anti-Lepis clause into a PSA must do so

"with full knowledge of all present and reasonably foreseeable

future circumstances" and further must "bargain for a fixed payment

or establish the criteria for payment to the dependent spouse,

irrespective of circumstances that in the usual case would give

rise to Lepis modifications of their agreement."        Id. at 241.

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     Plaintiff acknowledges there is no specific anti-Lepis clause

in the PSA.    Further, the modification judge did not read an anti-

Lepis clause into the PSA; instead she found, based upon the clear

intent of the agreement, that the parties waived any claim to

future assets in exchange for equitable distribution and that

defendant did not meet her burden under Lepis to demonstrate how

the changed circumstances have substantially impaired her ability

to sustain herself.

     Absent such a clause, "[w]here the parties have agreed on the

amount of support or alimony, Lepis permits later modification to

the extent that changed circumstances render the agreed terms no

longer 'fair and equitable.'"        Ibid. (quoting Lepis, 
83 N.J. at
 148-49).      "The   supporting   spouse's   obligation   hinges   on   the

parties' economic life during their marriage."            Glass v. Glass,


366 N.J. Super. 357, 370 (App. Div. 2004) (citation omitted); see

Lepis,   
83 N.J.   at   150.    "Specifically,    the    party   seeking

modification of an alimony award 'must demonstrate that changed

circumstances have substantially impaired the ability to support

himself or herself.'"      Crews, 
164 N.J. at 28 (quoting Lepis, 
83 N.J. at 157). "[T]he ability to support oneself must be understood

to mean the ability to maintain a standard of living reasonably

comparable to the standard enjoyed during the marriage," or the

marital standard of living.       Ibid.

                                     8                             A-2326-16T2
     "When modification is sought, the level of need of the

dependent spouse must be reviewed in relation" to the marital

standard of living.     Crews, 
164 N.J. at 29.     "The standard of

living during the marriage is the way the couple actually lived,

whether they resorted to borrowing and parental support, or if

they limited themselves to their earned income."    Glass, 
366 N.J.

Super. at 371 (quoting Hughes v. Hughes, 
311 N.J. Super. 15, 34

(App. Div. 1998)).    "If that need is met by the current alimony

award and there are no other changed circumstances, support should

not be increased merely because the supporting spouse has improved

financial resources."    Crews, 
164 N.J. at 29.    Ideally, marital

standard of living should be identified at the time of the original

divorce, "regardless of whether a maintenance order is entered by

the court or a consensual agreement is reached[.]"       Crews, 
164 N.J. at 25-26; see Weishaus v. Weishaus, 
180 N.J. 131, 144 (2004)

("A trial court may forego the findings when the parties freely

decide to avoid the issue as part of their mutually agreed-upon

settlement, having been advised of the potential problems that

might ensue as a result of their decision.")

     Here, the PSA does not establish the marital standard of

living, as it only sets forth the imputed incomes of the parties

at the time, and makes no representations about the parties'

ability to maintain any specific lifestyle.        Further, at the

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original time of divorce, the judge explicitly stated that he

"took no testimony regarding the issue of support, custody and

other matters except as to the issue of divorce" and did not make

any findings regarding these issues.                  See Crews, 
164 N.J. at 26

(citing 
N.J.S.A. 2A:34-23(b)(4) and finding that a determination

of the standard of living established in the marriage is required).

It is not apparent whether the parties freely decided not to

address the issue, having been made fully aware of the future

potential problems.         Weishaus, 
180 N.J. at 144.          Therefore, as we

have   stated,   it    was    incumbent        upon    the   judge   hearing   the

application for modification to make such a finding.                  Glass, 
366 N.J. Super. at 371 (citing Crews, 
164 N.J. at 16-17); see Weishaus,


180 N.J. at 145.

       However, the modification judge did not make a determination

of the marital standard of living.                     She appeared to express

disbelief that "the lifestyle they lived at the time of the

dissolution   was     one    that   was    substantiated      correctly   by   the

earnings of the couple at the time[,]" but never continued on to

make a specific finding.            To then infer from the PSA that the

parties had waived any future modifications was an error.

       The case information statements submitted at the time of

divorce evidence what the parties describe as a "lavish lifestyle";

the family ostensibly had monthly expenses of over $32,000, and

                                          10                              A-2326-16T2
defendant's   personal    monthly    expenses   were   supposedly   over

$12,000. Accepting the designation of "lavish" as true, and though

the PSA was entered into knowingly and with advice of counsel,

there is no language contained within, nor any other evidence,

establishing defendant's acknowledgement and acceptance of the

fact that she would not be able maintain herself at the marital

standard of living.      It was error for the modification judge to

dispose of the application without resolving the question.

     It is true that, even in a situation where "a spouse cannot

maintain the marital standard of living on the support payments

received, this would not ordinarily warrant modification if it

were shown that a single large cash payment made at the time of

divorce was included with the express intention of meeting the

rising cost of living."     Lepis, 
83 N.J. at 153; Innes v. Innes,


117 N.J. 496, 519 (1990) (citation omitted).       Defendant received,

as equitable distribution, approximately $416,000. However, there

was no expression of such an intention, except for general clauses

waiving future claims.      As such, it cannot be said, based on a

plain reading of the PSA, that the equitable distribution contained

within was intended to forestall any future modifications and to

cover rises in the costs of living.

     Based on the foregoing, we reverse and remand for a hearing

to determine the marital standard of living and whether changed

                                    11                          A-2326-16T2
circumstances   warrant   modification   of   plaintiff's   support

obligations.

    We do not retain jurisdiction.




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