NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-2611-16T3
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).
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.
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.
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.
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,
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).
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
Generally, because marital agreements are voluntary and
consensual, they are presumed valid and enforceable. See 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
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
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
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
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
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
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
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,
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
23(k) should retroactively apply to his motion. Rather, it appears
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
[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
Defendant relies on Mills v. Mills,
447 N.J. Super. 78 (Ch.
Div. 2016) to argue the motion judge should have applied
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
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
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.
177 N.J. 250, 280 (2003)). Nothing in
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
remunerative employment at any level and in
(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
(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
As we noted, defendant did not demonstrate an inability to
secure comparable income because he did not demonstrate a
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
did not support a modification of defendant's alimony obligation.