On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-365-01S.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Coburn.
Defendant, former husband, appeals from an order of July 27, 2007, which denied his motion for reconsideration, of an order of May 4, 2007, which had enforced his alimony obligation. He sought a reduction on the basis of changed circumstances. The Property Settlement Agreement (PSA) provided for permanent alimony of $300 a week. Defendant argues that "the trial court erred when it treated defendant's motion for reconsideration as a Rule 4:50-1 motion instead of a Rule 4:49-2 motion," "the trial court abused its discretion in failing to enforce the Lepis*fn1 provision of the [PSA]," and "the trial court erred in not finding defendant had a substantial change in circumstances justifying the exchange of discovery and a plenary hearing."
While this is technically only an appeal from the denial of reconsideration of the order of May 4, 2007,*fn2 we need not belabor the differences in the scope of a Rule 4:50 motion and a motion under Rule 4:49-2 (and Rule 5:1-1) for reconsideration. The fact is that defendant filed no written opposition to the plaintiff's enforcement motion which had been filed on March 7, 2007, and resulted in the May order. We simply note our agreement with the motion judge at the July 27, 2007, argument that defendant cannot benefit or obtain a de novo review of a prior application by waiting for the disposition of a motion before retaining counsel.
In any event, even considering the matter as if defendant had timely filed a response to the motion before the return date in May, we disagree with defendant's principal contention that his retirement provided a prima facie showing of changed circumstances under the PSA entitling him to discovery and an evidentiary hearing. The final paragraph of Article 3.1 of the PSA provides:
The parties agree that the Husband's reasonable retirement shall be deemed to have satisfied the criteria of Lepis Stage 1 as prima facie changed circumstances for either party to request discovery and review the other's financial circumstances at that time. Based upon that review, either party is without prejudice to request either an upward or downward modification of alimony. However, this shall not be deemed as an agreement that either party is entitled to an automatic modification.
However, there is no dispute that, (while represented by prior counsel) at the October 25, 2001 colloquy resulting in the court's finding "that each of the parties has entered into [the PSA] knowing full well the contents thereof on a voluntary basis," the following was asked of defendant by his then attorney:
Q: Do you recognize that by entering into this agreement you, in fact, are waiving your right to a trial?
Q: And you also recognize that your wife is entitled to permanent alimony in this agreement?
Q: And you are, in fact, waiving any right ...