M.L.M. v. M.W.M.

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                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-2611-16T3

M.L.M.,

       Plaintiff-Respondent,

       V.

M.W.M.1,

     Defendant-Appellant.
——————————————————————————————————
          Argued May 1, 2018 – Decided May 11, 2018

             Before Judges Carroll and Mawla.

             On appeal from Superior Court of New Jersey,
             Chancery Division, Family Part, Monmouth
             County, Docket No. FM-13-1266-10.

             Steven J. Martino argued the cause for
             appellant (Iacullo Martino, LLC, attorneys;
             Steven J. Martino, on the briefs).

             Robert J. Sims, Jr. argued the cause for
             respondent (Robert J. Sims, Jr., attorneys;
             Jeff Thakker, of counsel and on the brief;
             Robert J. Sims, Jr., on the brief).

PER CURIAM




1
  We utilize the parties' initials to assure confidentiality
pursuant to Rule 1:38.
       Defendant appeals from an October 4, 2016 order denying his

motion to modify alimony based on a change in circumstances.                       He

also appeals a January 6, 2017 order denying his motion for

reconsideration.        We affirm.

       The following facts are taken from the record.                The parties

were married for nineteen years and divorced on April 27, 2011.

Three children were born of the marriage, aged twenty-four, twenty-

two,   and   fourteen.       The   parties'    final      judgment   of     divorce

incorporated a property settlement agreement (PSA).

       During the marriage, defendant was in the Marine Corps. After

retiring from military service in 2005, defendant worked for

Computing Technologies, Inc. in Woodbridge, Virginia.                      From May

2005   until   April     2006,   defendant    was    a    course   director      for

Operations Other Than War, Command and Staff College, Marine Corps

University, and Distance Education Program Courses.                    Defendant

then trained with Sears Holding Corporation as a part of its

Military     Outreach    Program     from   April    to   June     2006.      After

completing his training, defendant was hired by Sears, and later

promoted to help expand Kmart's online business.              Defendant worked

for Kmart earning $177,000 per year until May 2014.

       Plaintiff had limited earnings.              She worked as a program

supervisor for Camp Fire USA, and earned $26,955 in 2010.



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     In pertinent part, the PSA designated plaintiff as the parent

of primary residence and defendant as the parent of alternate

residence.   The PSA granted defendant liberal parenting time with

the children.    Defendant agreed to pay plaintiff permanent alimony

of $865 per week, and child support of $379 per week for all three

children.    The PSA stipulated alimony and child support were

calculated based on defendant's income of $195,000 per year,

comprised of salary of $177,000, and $18,000 representing the

portion of his pension not subject to equitable distribution.          The

PSA also imputed income of $37,000 to plaintiff.

     Once the two older children left for college, defendant agreed

to pay child support of $316 per week for the remaining child.

After the divorce, defendant worked for Babies R Us East from May

2014, until May 2015, when he was terminated as a result of a

corporate restructuring.    Defendant received a severance package,

which paid him through October 31, 2015.

     Following    his   termination,   defendant   claimed   he     began

searching for a new job earning comparable income.           Defendant

claimed he was unable to find a position earning income at the

same level he previously had.    During this time, defendant claimed

the parties began to discuss the prospect of their youngest son

residing with him.



                                  3                               A-2611-16T3
      Ultimately, defendant accepted a position and relocated to

Camp Lejeune, North Carolina earning $100,000 per year, and a one-

time bonus of $10,000.      In addition, defendant informally assumed

primary custody of the parties' youngest child in September 2015.

Pursuant to the parties' agreement, defendant ceased paying child

support in November 2015.

      In February 2016, defendant filed a motion to reduce alimony

to $519 per week, and for other relief.           While defendant's motion

was pending he lost his employment at Camp Lejeune and returned

to work at Kmart earning $80,000.         Plaintiff opposed defendant's

motion and filed a cross-motion for enforcement of defendant's

financial and non-financial obligations under the PSA.

      The motion judge delayed adjudication of the motions until

the parties could attend mediation on the custody-related issues

as required by their PSA.       The judge ultimately heard the parties'

motions and entered an order denying defendant's request to modify

alimony on October 4, 2016, finding defendant "failed to establish

a   prima   facie   case   of   a   substantial    and   permanent   changed

circumstance warranting a reduction in his alimony obligation."

      Subsequently, the parties completed mediation, which was

unsuccessful.   Defendant filed a motion for reconsideration of the

denied alimony modification.          On January 6, 2017, defendant's

motion for reconsideration was denied.

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     Defendant's appeal from both orders followed.                  However, the

parties agree all issues are moot except for defendant's appeal

from the denial of his request for an alimony modification.

     We begin by reciting our standard of review.               "The scope of

appellate review of a trial court's fact-finding function is

limited.    The general rule is that findings by the trial court are

binding    on     appeal   when   supported   by    adequate,       substantial,

credible evidence." Cesare v. Cesare, 
154 N.J. 394, 411-12 (1998).

"[T]he appellate court must give due recognition to the wide

discretion which our law rightly affords to the trial judges," and

disturb    such    determinations    only   where   the    court     abused    its

discretion.       Larbig v. Larbig, 
384 N.J. Super. 17, 21, 23 (App.

Div. 2006) (quoting Martindell v. Martindell, 
21 N.J. 341, 355

(1956)).     We reverse only if there is "'a denial of justice'

because    the    family   court's   'conclusions    are    .   .    .   "clearly

mistaken" or "wide of the mark."'"            Parish v. Parish, 
412 N.J.

Super. 39, 48 (App. Div. 2010) (quoting N.J. Div. of Youth & Family

Servs. v. E.P., 
196 N.J. 88, 104 (2008)).            However, "[t]his court

does not accord the same deference to a trial judge's legal

determinations."       Ricci v. Ricci, 
448 N.J. Super. 546, 565 (App.

Div. 2017) (citing Reese v. Weis, 
430 N.J. Super. 552, 568 (App.

Div. 2013)).       Rather, "all legal issues are reviewed de novo."

Ibid. (citing Weis, 
430 N.J. Super. at 568).

                                       5                                  A-2611-16T3
     On appeal, defendant argues the motion judge abused her

discretion by finding he failed to prove a substantial change in

circumstances to modify alimony.          Defendant argues the judge's

conclusion he failed to provide adequate proof of his current

employment was erroneous because he provided an updated case

information statement reflecting his then-present income.

     Defendant also claims the motion judge applied improper legal

principles in considering his motion.          Specifically, defendant

argues the judge erroneously concluded a modification of alimony

was not warranted because defendant did not continue to search for

comparable employment.        Defendant also argues the trial court

erred by failing to apply 
N.J.S.A. 2A:34-23(k) to his motion for

alimony modification.

     Generally,   because     marital    agreements   are    voluntary   and

consensual, they are presumed valid and enforceable.            See Massar

v. Massar, 
279 N.J. Super. 89, 93 (App. Div. 1995).               However,

"[d]espite   an   agreement    to   provide   spousal   support    without

limitation as to time, '[t]he duties of former spouses regarding

alimony are always subject to review or modification by our courts

based upon a showing of changed circumstances.'"            Glass v. Glass,


366 N.J. Super. 357, 370 (App. Div. 2004) (alteration in original)

(quoting Miller v. Miller, 
160 N.J. 408, 419 (1999)); see also



                                     6                              A-2611-16T
3 N.J.S.A. 2A:34-23 (Support orders "may be revised and altered by

the court from time to time as circumstances may require.").

      "The party seeking modification has the burden of showing

such 'changed circumstances' as would warrant relief from the

support or maintenance provisions involved."                   Lepis v. Lepis, 
83 N.J. 139, 157 (1980) (citation omitted).                 A court is required to

hold a plenary hearing where the moving party has demonstrated a

prima facie change in circumstances.               Ibid.   "[P]rima facie . . .

[evidence   is]   evidence       that,    if   unrebutted,      would    sustain    a

judgment in the proponent's favor."             Baures v. Lewis, 
167 N.J. 91,

118   (2001).     The     proper    inquiry       is   "whether   the    change    in

circumstance is continuing and whether the agreement or decree has

made explicit provision for the change."                 Lepis, 
83 N.J. at 152.

Therefore, "[t]emporary circumstances are an insufficient basis

for modification."         Innes v. Innes, 
117 N.J. 496, 504 (1990)

(citing Bonanno v. Bonanno, 
4 N.J. 268, 275 (1950)).

      Defendant    provided      the     motion    judge   with    the   following

financial documents in support of his February 23, 2016 motion: a

case information statement dated March 17, 2011, with supporting

tax returns from 2010; a case information statement dated February

10, 2016, with supporting pay stubs dated December 4, 2015,

December    18,   2015,    and     January     29,     2016;   2014   tax   returns

reflecting an income of $302,724; and statements from his military

                                          7                                 A-2611-16T3
pension dated November 19, 2015, December 11, 2015, and January

21, 2016.    In his motion for reconsideration, defendant provided:

an updated case information statement dated October 27, 2016; his

2015 tax returns, which reported an income of $381,847; and

paystubs dated October 3, 2016 and October 17, 2016, from Sears

Holdings Corporation.

      The   information   provided    was   insufficient   evidence      of   a

change in circumstances.         Indeed, defendant's 2014 and 2015 tax

returns demonstrated he earned substantially more income than set

forth in the PSA.         Additionally, defendant failed to provide

sufficient information establishing his current salary, or even a

description of his employment.

      At oral argument, plaintiff's attorney informed the court

defendant had secured new employment.         Plaintiff's counsel stated

"he got let go of his job again and he starts his new job on Monday

with Sears Holdings, which is the same job that he had when this

original order was started."        Defendant then indicated he had not

provided the information because he would be earning a similar

salary.

      The motion judge did not abuse her discretion by not finding

a change in circumstances given the lack of information provided

to   her.     Moreover,    the    information   provided   to   the     judge



                                      8                               A-2611-16T3
demonstrated defendant had increased earnings since the divorce,

and was not entitled to a downward modification of alimony.

     Defendant      argues   the   judge    improperly       concluded     he    was

required to continue searching for employment earning a similar

salary.   The judge stated "[d]efendant provides no proof that he

is still actively searching for comparable employment to what he

previously earned."       The judge was not persuaded by defendant's

arguments justifying his current employment at a lower earning

level.

     In Storey v. Storey, 
373 N.J. Super. 464 (App Div. 2004), the

obligor was earning $111,000 per year as a computer hardware

specialist when he lost his employment.             Id. at 468.     The obligor

then became a massage therapist, earning $300 per week, and moved

for a reduction in his alimony obligation based on his reduced

income.    Id. at 468.       The trial court imputed $60,000 to the

obligor   based      on   prevailing       wages    for      computer      service

technicians, and thus reduced his alimony obligation.                    Ibid.    On

appeal we affirmed, holding the obligor did not establish his

career choice was reasonable.        Id. at 480.       We stated "[w]hen an

alimony   obligor    changes   career,     the     obligor    is   not    free    to

disregard the pre-existing duty to provide support."                Id. at 469;

see also Arribi v. Arribi, 
186 N.J. Super. 116, 118 (Ch. Div.

1982) ("[O]ne cannot find himself in, and choose to remain in, a

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position where he has diminished or no earning capacity and expect

to be relieved of or to be able to ignore the obligations of

support to one's family.").

      When    assessing      whether   an   obligor's     career     change      is   a

substantial change in circumstances, the court should "determine

whether      the   obligor's     decision     is      'reasonable'       under     the

circumstances      and,     ultimately,     whether     the    advantages     to   the

supporting spouse 'substantially outweigh' the disadvantages to

the supported spouse."          Storey, 
373 N.J. Super. at 469 (quoting

Deegan v. Deegan, 
254 N.J. Super. 350, 357-58 (App. Div. 1992)).

             The factors relevant to the reasonableness and
             relative advantages of a career change . . .
             include: the reasons for the career change
             (both the reasons for leaving prior employment
             and the reasons for selecting the new job);
             disparity between prior and present earnings;
             efforts to find work at comparable pay; the
             extent to which the new career draws or builds
             upon education, skills and experience; the
             availability of work; the extent to which the
             new career offers opportunities for enhanced
             earnings in the future; age and health; and
             the former spouse's need for support. . . .
             The list is not exhaustive.

             [Id. at 470-71.]

      Here, defendant provided evidence of a job search for only a

limited time period, namely May to August 2015.                  Defendant argues

his   job    search   was    limited   because     he    was    forced   to    accept

employment in a field different from his prior career.                      However,


                                       10                                     A-2611-16T3
because defendant failed to certify or provide other evidence of

his present employment, it was not possible for the judge to

understand why defendant changed careers, or how his present

employment differed from his previous employment.    Defendant also

did not provide the judge with objective evidence to justify why

his earnings had decreased by $77,000, and as we noted defendant's

most recent tax returns did not reflect a loss of income.

     These circumstances did not demonstrate the judge relied

exclusively on defendant's proof of job search.     They also do not

support the notion the judge's decision can be read to mandate

defendant eternally search for employment until he achieves his

prior earnings level.   Rather, with adequate proofs, defendant can

seek to demonstrate a changed circumstances to modify alimony

going forward.   For these reasons, we conclude the motion judge

did not abuse her discretion under the circumstances presented.

     Defendant argues the motion judge erred by failing to analyze

the factors outlined in 
N.J.S.A. 2A:34-23(k).        He asserts he

established a substantial change in circumstances pursuant to


N.J.S.A. 2A:34-23(k), and the judge should have applied the statute

even though the PSA pre-dated its passage.

     At the outset, we note defendant did not argue 
N.J.S.A. 2A:34-

23(k) should retroactively apply to his motion. Rather, it appears



                                11                           A-2611-16T3
he   asserted   the   argument   in    his   motion     for    reconsideration.

However, a motion for

           [r]econsideration should be utilized only for
           those cases which fall into that narrow
           corridor in which either 1) the [c]ourt has
           expressed its decision based upon a palpably
           incorrect or irrational basis, or 2) it is
           obvious that the [c]ourt either did not
           consider,   or  failed   to  appreciate   the
           significance    of    probative,    competent
           evidence.

           [D'Atria v. D'Atria, 
242 N.J. Super. 392, 401
           (Ch. Div. 1990).]

      Pursuant to Rule 4:49-2, a motion for reconsideration cannot

serve as a vehicle for new arguments that were not previously

before the court.      Lahue v. Pio Costa, 
263 N.J. Super. 575, 598

(App Div. 1993).      Therefore, the motion judge did not abuse her

discretion by declining to apply 
N.J.S.A. 2A:34-23(k).

      Defendant relies on Mills v. Mills, 
447 N.J. Super. 78 (Ch.

Div. 2016) to argue the motion judge should have applied 
N.J.S.A.

2A:34-23(k).    Specifically, defendant argues the statute applies

because the PSA did not contain a provision delineating the

standard for a modification of support.                 In Mills, an obligor

sought a reduction in his alimony obligation after he lost his job

as a flooring salesman and obtained a similar position but at a

significantly    lower   salary.       Id.   at   80.     The      court   granted

defendant's     application      for    a    reduction        in    alimony     and


                                       12                                  A-2611-16T3
retroactively applied 
N.J.S.A. 2A:34-23(k), which had been enacted

after the parties' PSA.   Id. at 80-81.

     However, Mills was not binding on the trial court and we

decline to follow its retroactive application of 
N.J.S.A. 2A:34-

23(k) where the Legislature made no such pronouncement.     Indeed,

"the best indicator of that intent is the statutory language."

DiProspero v. Penn, 
183 N.J. 477, 492 (2005) (citing Frugis v.

Bracigliano, 
177 N.J. 250, 280 (2003)). Nothing in 
N.J.S.A. 2A:34-

23(k) requires the court to apply the statutory factors to a PSA,

which pre-dates September 10, 2014, its effective date, especially

where a litigant, as defendant in this case, has failed to raise

such an argument before the trial court.

     Finally, even if 
N.J.S.A. 2A:34-23(k) could be applied, an

application of the factors does not support defendant's argument

for a modification of alimony.    The statute provides:

          When   a   non-self-employed    party     seeks
          modification of alimony, the court        shall
          consider the following factors:

          (1) The reasons for any loss of income;

          (2) Under circumstances where there has been
          a loss of employment, the obligor’s documented
          efforts to obtain replacement employment or
          to pursue an alternative occupation;

          (3) Under circumstances where there has been
          a loss of employment, whether the obligor is
          making   a  good   faith   effort  to   find


                                 13                         A-2611-16T3
           remunerative employment at any level and in
           any field;

           (4) The income of the obligee; the obligee’s
           circumstances; and the obligee’s reasonable
           efforts to obtain employment in view of those
           circumstances and existing opportunities;

           (5) The impact of the parties’ health on their
           ability to obtain employment;

           (6) Any severance compensation or award made
           in connection with any loss of employment;

           (7) Any changes in the respective financial
           circumstances of the parties that have
           occurred since the date of the order from
           which modification is sought;

           (8) The reasons for any change in either
           party’s financial circumstances since the date
           of the order from which modification is
           sought, including, but not limited to,
           assessment of the extent to which either
           party’s financial circumstances at the time
           of the application are attributable to
           enhanced earnings or financial benefits
           received from any source since the date of the
           order;

           (9) Whether a temporary remedy should be
           fashioned to provide adjustment of the support
           award from which modification is sought, and
           the terms of any such adjustment, pending
           continuing employment investigations by the
           unemployed spouse or partner; and

           (10) Any other factor the court deems relevant
           to   fairly    and   equitably    decide   the
           application.

    As we noted, defendant did not demonstrate an inability to

secure   comparable   income   because   he   did   not   demonstrate    a


                                 14                              A-2611-16T3
sufficient effort to search for such employment.    Defendant did

not present the motion judge with an adequate description of his

employment, he did not describe his prior employment or his

qualifications, or how the latter correlated with his prior or

current employment.    The record does not support a finding in

favor of modification under statutory factors one, two, three,

seven, and eight.   Therefore, application of 
N.J.S.A. 2A:34-23(k)

did not support a modification of defendant's alimony obligation.

     Affirmed.




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