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Lucante v. Lucante


November 15, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-644-05-F.

Per curiam.


Submitted: February 24, 2010

Decided: July 29, 2010 Motion for reconsideration granted.

Resubmitted: August 26, 2010

Before Judges Payne and C.L. Miniman.

Plaintiff Tracy Lucante appeals from a final order entered on December 18, 2008, reducing defendant Vincent Lucante's child support and alimony obligations. This order was not served on counsel in the matter until February 2, 2009, at which time a January 14, 2009, written opinion was also served on counsel, although an oral decision had been placed on the record on December 18, 2008.*fn1 When the matter was first before us, we dismissed the appeal as untimely measured from the December 18, 2008, order. Plaintiff moved for reconsideration based on the judge's failure to serve the December 18, 2008, order, which we granted and now address the merits of the appeal.

As a preliminary matter, we specifically disapprove of this practice.*fn2 Rule 4:42-1(e) requires a judge signing an order to file the original in accordance with Rule 1:5-6(b) and return a copy to the attorney who submitted the order or judgment. This rule applies to Family Part actions by virtue of Rule 5:1-1. The time for appeal runs from the entry of a final judgment or order, not its service on counsel. See R. 2:4-1(a) ("Appeals from final judgments . . . shall be taken within 45 days of their entry."). Service of an order must be made on the day of its entry in order to maintain the certainty that Rule 2:4-1(a) seeks to establish with respect to the timeliness of an appeal and to the finality of judgments. We have, nonetheless, determined to decide the issues before us on the merits and now affirm.

This is an appeal from a post-judgment reduction in child support based on changed circumstances. The parties were mar- ried on June 11, 1994; they subsequently divorced on July 19, 2005. There were two children born of the marriage, one in 1997 and another in 1999. Plaintiff has residential custody of both children.

The parties entered into a Property Settlement Agreement (PSA) that was incorporated into their July 19, 2005, Judgment of Divorce (JOD). The PSA established child support as follows:

Husband shall pay to the Wife as and for support for the unemancipated children of the marriage the sum of $215.00 every week, payable on Friday of every week. The child support amount is based on the annual gross income of $75,000.00 for the Husband, who is employed as a licensed Captain for Port Imperial Ferry Corporation as well as Cornucoppia [sic] Cruise Lines, Inc.[,] and imputed income of $18,200 for the [W]ife. For purposes of child support calculations, the gross annual income of the Wife shall be used, or Wife's [two words unreadable] annual income of $18,200 shall be [line missing]. Child support is deviation from C[hild] S[upport] Guidelines.

The PSA also required defendant to pay limited duration alimony for seven years. He was to pay $350 per week during the first year, $300 per week during the next three years, and $250 per week for the last three years.

At the time of the divorce, defendant was employed by New York Waterway as a Captain. In that position, he worked over- time and was also employed part time by Cornucopia Cruise Lines. In January 2007, defendant was promoted by New York Waterway to the position of Port Captain. In this position, defendant was not paid for overtime work and was not permitted to be employed elsewhere. With the loss of overtime and secondary employment, defendant's income was reduced to his $56,000 salary.

Although defendant's income was effectively reduced, the position of Port Captain presented opportunities for future advancement within New York Waterway, which could benefit his former wife and children in the long run. Defendant sought a reduction in his spousal and child support obligations on Octo- ber 9, 2007. That relief was granted on April 23, 2008, after a full plenary hearing, and on May 12, 2008, the judge entered an order reducing spousal support for years two through four from $300 per week to $218, and for years five through seven from $250 to $168. Child support was reduced from $215 to $188. Plaintiff did not appeal this final order.

However, while the decision was pending, defendant accepted a position on March 31, 2008, with the Delaware River and Bay Authority (Delaware Authority) as an "Able Bodied Seaman, 2nd Class." His former employer held his Port Captain position open. On June 6, 2008, plaintiff moved to vacate the May 12, 2008, order. Defendant did not oppose this relief. He did, however, send a letter to the judge on August 12, 2008, in which he explained his concerns about continued employment with New York Waterway in light of declining economic circumstances.

[I]f NY Waterway were to either close or significantly downsize[,] the flood of marine personnel would greatly impact the New York Harbor area. Re-employing myself would be difficult. Since there is the opportunity to advance in the Delaware . . . Authority[,] . . . I acted on the best interest of my children to not only financially support my obligations but to fully insure my children with medical, dental and optical coverage. . . . Also, this organization offers college scholarships and funds to assist in part or wholly on children's education.

Defendant then submitted his most recent pay stubs and discussed other financial information respecting his pay and work sched- ule. Defendant also attached a letter from the Delaware Authority stating that it was offering him a "permanent full-time" position. The judge ultimately granted plaintiff's motion on October 14, 2008, reinstating defendant's alimony and child- support obligations under the PSA, effective March 31, 2008. Employment with the Delaware Authority allowed defendant to upgrade his seamen's license, which had been limited to vessels of up to 1600 gross tons. After defendant completed the requisite number of hours to upgrade his license, defendant returned to his position as Port Captain for New York Waterway on October 5, 2008, apparently shedding his concerns about the security of that employment. Thus, even before the judge entered the order on plaintiff's motion for reconsideration, defendant had returned to his former employment as Port Captain, where he received a $4000 raise, making his gross salary $60,000. Defendant again sought a reduction in his spousal and child support obligations on or about November 11, 2008.

Plaintiff opposed the motion and filed a cross-motion, the resolution of which is not before us. Plaintiff disputed defendant's claim that his employment with the Delaware Authority was only temporary in nature, citing his letter of August 12, 2008, and the attached letter from the Delaware Authority describing his employment as permanent full-time work.

The judge heard oral argument on December 18, 2008, and decided the motions without taking any testimony. He stated that he was inclined to grant defendant's application and denied plaintiff's request for a stay. After the judge made these rulings, plaintiff requested that the term of her alimony be increased as a result of the downward modification in the amount of alimony. The judge refused to order such relief "without having both parties have a chance to fully explore and address that."

In his January 14, 2009, opinion, as modified on March 27, 2009, the judge discussed the evidence at the earlier plenary hearing and the findings he made in 2007:

On January 13, 2007, [d]efendant was promoted to Port Captain, a promotion which, however, resulted in a reduction in defendant's annual salary from $75,000.00 to $56,000.00. The promotion restricted the defendant's ability to work overtime and engage in outside employment. Defendant testified that as Port Captain, he is ineligible for overtime and outside employment. It is a salaried position where he is on-call 24 hours a day, 7 days a week, to respond to emergencies and other incidents. The defendant testified that while the position of Port Captain provides a lower salary, it is a stepping stone to higher positions in the company, including Senior Port Captain and/or Vice President of Operations. There are 40 Captains employed by New York Waterways, but only two Port Captains. Company representatives, on behalf of the defendant, testified that outside employment is not possible when employed as a Port Captain. At the time of the hearing, the [c]court found that the defendant's acceptance of a promotion was reasonable and made in good faith for the purpose of advancing his career. . . .

At the time of the hearing, the [c]court raised the issue of the defendant delaying the promotion of Port Captain until his spousal support was terminated. The expiration of the spousal support term, pursuant to the Property Settlement Agreement, is July 19, 2012. The defendant argues, however, that the purpose of the promotion, while decreasing his pay, is to acquire later long-term benefits within the company, including future promotions and salary increases. Yet, because those promotions and salary increases are uncertain, said benefits may not be available to the defendant until the end of [the] spousal support term. At that point, the plaintiff could no longer receive the benefit of the defendant's temporarily lowered income. Still, once the defendant's higher position, with its accompanying lower salary, ends, there is no guarantee that he would receive further promotions or a higher salary.

The [c]court found, following the hearing, that the defendant's situation is a "changed circumstance" within the meaning of the statute, thereby warranting a reduction in his spousal support obligation based on his decreased pay. The [c]court acknowledged that it may appear inequitable for the defendant to obtain a promotion with a salary decrease and secure a reduction in spousal support during the agreed upon term, only for the defendant to receive another position with increased income after his term expires. However, there is no guarantee that the defendant would obtain such a position after his spousal support obligation expired.

Subsequent to the second [o]rder, the defendant returned to New York Waterway. The defendant then filed a Notice of Motion for Modification of Child Support, alleging that his position with Delaware River and Bay Authority was only temporary in nature and he was again working for New York Waterway. The plaintiff alleges that [d]efendant's position that his job with the Delaware River and Bay Authority was only temporary contradicts [d]efendant's position in his letter of August 12, 2008, setting forth his reasons why he left New York Waterway.

The defendant admits he was offered a permanent position at the Delaware River and Bay Authority, which he accepted and so informed the [c]court on August 13, 2008. He indicates in his Certification of December 11, 2008, the position with Delaware River and Bay Authority afforded him a unique opportunity to sail a vessel in excess of 1,600 tons, which was his license limit, and afforded him the opportunity to upgrade his license. His position with New York Waterway was held open for a period of three to six months, to permit him to work for the Delaware River and Bay Authority. It appears from the letter of August 12, 2008[,] that the defendant planned on accepting a position with Delaware River and Bay Authority with no mention of returning to New York Waterway. New York Waterway, by letter of October 17, 2008, stated it was aware that [d]efendant was "temporarily" leaving the company to obtain a position with Delaware River and Bay Authority in order to secure a larger tonnage vessel license. Said letter states that after completing his sea time with the Delaware River and Bay Authority, [d]efendant returned to New York Waterway in the position of Port Captain. The defendant was offered to take three to six months off to obtain the necessary time to secure a greater license. On October 5, 2008, [d]efendant resumed his position with New York Waterway.

Mr. Lucante, in his recent [c]ertification, claimed that, had he not returned within a six month period, his job with New York Waterway would have been forfeited. His [c]ertification provides that his position with Delaware River and Bay Authority was simply to complete the requisite hours to secure a license to operate vessels in excess of 1,600 tons, which would place him in a better position when he returned to New York Waterway. Upon his return to New York Waterway, his salary was increased from $56,000.00 to $60,000.00.

Following his completion of duty at Delaware River and Bay Authority, he applied to upgrade his license with the U.S. Coast Guard Regional Exam Center.

Defendant argues that if he is attempting to avoid his alimony obligation, as suggested by the plaintiff, he would have waited to upgrade his license until after the alimony obligation had ceased. Therefore, [d]efendant suggests to the [c]court that his change in employment was in good faith and in furtherance of his career. It appears [d]efendant's letter of August 2008 and [c]ertification of November 2008 are conflicting. The defendant's employer, in its letter of October 2008, explained that the defendant was on a temporary leave to secure a greater license. Defendant's employer's letter, although uncertified, is supportive and classifies the defendant's position.

Based on [d]efendant's employment, the parties are in the same position as when the [c]court entered the Order of May 2008.

There is a benefit to the defendant by accepting a promotion. The question for the [c]court to consider is the result to the plaintiff. Defendant voluntarily accepted to earn less money with the hopes of future advancement. This should not be discouraged. The defendant accepted this position in good faith, not knowing whether another offer would be available to him as Port Captain. The prediction was that this would further his career and increase his salary for the benefit of all. Had he not accepted the position when he did, he may have missed indefinitely the opportunity to become Port Captain.

Therefore, the [c]court hereby reduces the limited duration spousal support for the years two, three and four to $219.00 per week and years five, six and seven to $169.00 per week, effective November 12, 2008, per the written [o]pinion of April 23, 2008. Child support is being recalculated based on the imputed income of the plaintiff of $18,200.00 and [d]efendant's annual income of $60,000.00. Defendant shall pay $196.00 per week in child support, in accordance with the New Jersey Child Support Guidelines, attached hereto, effective November 12, 2008 (the date of filing of the Motion). In the event the defendant receives a new promotion or additional income, he shall so advise the plaintiff within twenty (20) days.

At the time of oral argument on December 18, 2008, plaintiff's attorney, after the [c]court agreed to reduce defendant's support obligations, asked the [c]court to consider extending the alimony term. Since this was not part of the plaintiff's Cross-Motion, nor requested in the moving papers, the [c]court denied this relief. In addition, [plaintiff] requested a stay and leave to appeal. Again, said request was not in writing, and the application was denied without prejudice.

Nevertheless, the argument could be made that if the defendant did not seek a "promotion," his salary would not have decreased and the plaintiff would continue to receive the agreed upon spousal support, as provided in the Property Settlement Agreement. The defendant, voluntarily, sought a promotion, but to the plaintiff's detriment. There was nothing prohibiting the defendant from staying at his previous position with New York Waterway, or staying at his recent position with Delaware River and Bay Authority, working overtime, and/or getting a second job. After the [c]court considered this issue, and having heard argument in November 2007, the defendant secured another position with a different company for more money. The circumstances at bar are uncommon. As plaintiff's request for an extension of the alimony term is not properly before the [c]court, the parties are free to revisit this issue.

Plaintiff contends that defendant has not shown a change of circumstances that would warrant a modification of his alimony and child support obligations. This is so, she urges, because defendant is voluntarily underemployed but has the ability, as shown by his job at the Delaware Authority, to earn the amount of income he earned at the time of the PSA. She also urges that the disadvantages of defendant's employment with New York Water- way outweigh any advantages of the promotion to Port Captain, precluding a reduction in support. Finally, she urges that if defendant is entitled to a reduction of alimony, the term of alimony should be extended.

Defendant, on the other hand, asserts that he has demon- strated a change in circumstances under Lepis v. Lepis, 83 N.J. 139 (1980). He contends that accepting a promotion cannot be found to be voluntary underemployment, nor can it be found to be temporary, because his position as Port Captain is a permanent, full-time position. Because his promotion was reasonable under the circumstances, the advantages of his new position outweigh the disadvantages. Finally, he argues that plaintiff cannot appeal from the judge's refusal to consider the term of alimony as it was not relief sought in her cross-motion.

Appellate review of the trial court's fact-finding function is circumscribed so that findings by the trial court are binding on appeal if supported by adequate, substantial, and credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); see also Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Trial courts that "hear the case and see the witnesses . . . are in a better position to evaluate the credibility and weight to be afforded testimonial evidence." N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999); Pascale v. Pascale, 113 N.J. 20, 33 (1988)). "Where the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citation omitted). However, even in this later instance, "we will nonetheless accord deference to the trial court's findings unless they 'went so wide of the mark that a mistake must have been made.'" Mackinnon v. MacKinnon, 191 N.J. 240, 254 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)), stay denied, 551 U.S. 1177, 128 S. Ct. 7, 168 L.Ed. 2d 784 (2007).

The Supreme Court has observed that matrimonial courts pos- sess special expertise and experience in the field of domestic relations. Cesare, supra, 154 N.J. at 412. "Because of the family courts' special jurisdiction and expertise in family mat- ters, appellate courts should accord deference to family court fact[-]finding." Id. at 413. While we remain cognizant that we owe no special deference to the trial judge's conclusions of law, Manalapan Realty, L.P. v. Township Committee of Manalapan, 140 N.J. 366, 378 (1995), we will not "second-guess [a Family Part judges' factual] findings and the exercise of their sound discretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007) (citation omitted).

"[J]udicial discretion" is the option which a judge may exercise between the doing and the not doing of a thing which cannot be demanded as an absolute legal right, guided by the spirit, principles and analogies of the law, and founded upon the reason and conscience of the judge, to a just result in the light of the particular circumstances of the case.

[Smith v. Smith, 17 N.J. Super. 128, 132 (App. Div. 1951) (citations omitted), certif. denied, 9 N.J. 178 (1952).]

The exercise of judicial discretion "is not unbounded and it is not the personal predilection of the particular judge." State v. Madan, 366 N.J. Super. 98, 109 (App. Div. 2004). More- over, the exercise of judicial discretion must have a factual underpinning and legal basis. Id. at 110. Applying these principles, we have explained:

Judicial discretion, sound discretion guided by law so as to accomplish substantial justice and equity, is a magisterial, not a personal discretion. It is legal discretion, in which the judge must take account of the applicable law and be governed accordingly. If the judge misconceives or misapplies the law, his discretion lacks a foundation and becomes an arbitrary act. When that occurs, the reviewing court should adjudicate the matter in light of the applicable law to avoid a manifest denial of justice.

[Cosme v. E. Newark Twp. Comm., 304 N.J. Super. 191, 202 (App. Div. 1997) (quoting In re Presentment of Bergen Cnty. Grand Jury, 193 N.J. Super. 2, 9 (App. Div. 1984)), certif. denied, 156 N.J. 381 (1998).]

Where the trial court makes a discretionary ruling, that decision will not be reversed on appeal absent a showing of an abuse of discretion. In re Estate of Hope, 390 N.J. Super. 533, 541 (App. Div.), certif. denied, 191 N.J. 316 (2007); Schweizer v. MacPhee, 130 N.J. Super. 123, 127 (App. Div. 1974). A trial court decision will constitute an abuse of discretion where "the 'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an imper- missible basis.'" United States v. Scurry, 193 N.J. 492, 504 (2008) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).

The seminal case of Lepis establishes the criteria for evaluating a claim of changed circumstances justifying relief from an order for child support and alimony. Lepis, supra, 83 N.J. 139. "The equitable power of the courts to modify alimony and support orders at any time is specifically recognized by N.J.S.A. 2A:34-23[.]" Id. at 145. "As a result of this judicial authority, alimony and support orders define only the present obligations of the former spouses. Those duties are always subject to review and modification on a showing of 'changed circumstances.'" Id. at 146 (citations omitted).

After rejecting a dual standard for modification of support orders contained in JODs and those contained in PSAs, the Court held that "the terms of such agreements should receive continued enforcement without modification only so long as they remain fair and equitable. The equitable authority of a court to modify support obligations in response to changed circumstances, regardless of their source, cannot be restricted." Id. at 148- 49 (citations omitted). Changed circumstances that warrant modification include:

(1) an increase in the cost of living;

(2) increase or decrease in the supporting spouse's income;

(3) illness, disability or infirmity arising after the original judgment;

(4) the dependent spouse's loss of a house or apartment;

(5) the dependent spouse's cohabitation with another;

(6) subsequent employment by the dependent spouse; and

(7) changes in federal income tax law.

[Id. at 151 (citations and footnote omitted).]

Additionally, changed circumstances may include (8) an increase in the needs of the children and (9) their emancipation or employment. Id. at 151-52 (citations omitted). Only (2) above is the basis for the finding of changed circumstances in this case.

The proper criteria are whether the change in circumstance is continuing and whether the agreement or decree has made explicit provision for the change. An increase in support becomes necessary whenever changed circumstances substantially impair the dependent spouse's ability to maintain the standard of living reflected in the original decree or agreement. Conversely, a decrease is called for when circumstances render all or a portion of support received unnecessary for maintaining that standard. After finding that the dependent spouse cannot maintain the original standard of living, the court must consider the extent to which the supporting spouse's ability to pay permits modification.

[Id. at 152-53.]

The Lepis Court then provided procedural guidelines "to follow on modification motions." Id. at 157.

The party seeking modification has the burden of showing such "changed circumstances" as would warrant relief from the support or maintenance provisions involved. A prima facie showing of changed circumstances must be made before a court will order discovery of an ex-spouse's financial status. . . .

Only after the movant has made this prima facie showing should the respondent's ability to pay become a factor for the court to consider. Therefore, once a prima facie case is established, tax returns or other financial information should be ordered. . . .

[W]ithout knowledge of the financial status of both parties, the court will be unable to make an informed determination as to "what, in light of all the [circumstances] is equitable and fair." . . .

Once the above steps have been completed, the court must decide whether to hold a hearing. Although equity demands that spouses be afforded an opportunity to seek modification, the opportunity need not include a hearing when the material facts are not in genuine dispute. We therefore hold that a party must clearly demonstrate the existence of a genuine issue as to a material fact before a hearing is necessary.

[Id. at 157-59 (citations omitted).]

Plaintiff urges that defendant's decrease in income is not a valid basis for a reduction in support. She points out that defendant will secure relief from his support obligation in years five through seven as the amount of alimony decreases and ends in accordance with the PSA, relying on Lynn v. Lynn, 165 N.J. Super. 328 (App. Div.),*fn3 certif. denied, 81 N.J. 52 (1979), and Bencivenga v. Bencivenga, 254 N.J. Super. 328 (App. Div. 1992). Additionally, she urges that disadvantages of defen- dant's promotion outweigh the advantages, relying on Storey v. Storey, 373 N.J. Super. 464 (App. Div. 2004), and that defendant's prior income should be imputed to him.

In Lynn, we reversed the downward modification of the defendant physician's support obligation after he left a lucra- tive practice to enter a three-year residency in a new specialty because we found that the diminution in his income was only tem- porary. Lynn, supra, 165 N.J. Super. at 333, 342. Here, the reduction in income is of indefinite duration.

In Bencivenga, the plaintiff father sought child support from the defendant mother, who had not been required to pay child support under the divorce degree. Bencivenga, supra, 254 N.J. Super. at 330. The Family Part judge denied the motion without an oral or written decision. Ibid. We found that the plaintiff made out a prima facie case for changed circumstances under Lepis based on the increased needs of the children and also found that defendant's voluntary unemployment did not pre- clude the imputation of income and an order for support. Id. at 331. Although a judge has the discretion to impute income, Bencivenga certainly does not require that remedy here.

Finally, in Storey, the plaintiff supporting spouse lost his $111,000 position as a computer hardware specialist as part of a reduction in force and elected to become a massage thera- pist earning $300 per week. Storey, supra, 373 N.J. Super. at 468. In reducing his support obligation, the Family Part judge imputed income to him of $60,000, "based on prevailing wages for computer service technicians." Ibid. Plaintiff appealed and we affirmed, rejecting his contention that support must be based on actual, not imputed, income. Ibid. We held that an obligor who has selected a new, less lucrative career must establish that the benefits he or she derives from the career change substantially outweigh the disadvantages to the supported spouse. Absent that showing, a judge should deny the motion, in effect imputing prior earnings, unless the obligor establishes, in the alternative, that his capacity to earn is diminished, in which case the judge should impute earnings consistent with the obligor's capacity to earn in light of the obligor's background and experience. The burden of persuasion is on the obligor.

[Id. at 468-69.]

None of these cases is inconsistent with the judge's dis- cretionary ruling in this case. Defendant has not experienced a temporary diminution in income, become unemployed, or abandoned his career in favor of significantly less lucrative employment. Instead, he accepted a promotion to a salaried, rather than an hourly, position where he has an opportunity for promotions and has already had a salary increase. The judge acted entirely within the bounds of a reasonable exercise of discretion in finding that defendant's pursuit of a promotion and an upgrade to his seaman's license were reasonable under the circumstances, even though the salaried position was less remunerative for the time being. We find no abuse of discretion in the modification of alimony and child support under these circumstances. Plaintiff also contends that the judge ought to have extended the term of alimony when he modified the amount, urging that these are the "unusual circumstances" contemplated by N.J.S.A. 2A:34-23(c), which provides in pertinent part:

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.

Plaintiff urges that we considered this statute and observed that:

The premise for a term of limited duration alimony under N.J.S.A. 2A:34-23c is primarily historical not predictive and it is not based upon estimates about financial circumstances at the time of termination. Thus, the end date of a term of limited duration alimony is the equivalent of an arrangement to terminate support at a predetermined time or event, regardless of need. The statutory standard that precludes modification of the length of a term of limited duration alimony-"except in unusual circumstances"-is the equivalent of the standard applied to analogous arrangements for termination of support under prior decisional law-"not ordinarily equitable and fair." Compare N.J.S.A. 2A:34-23c with Lepis, supra, 83 N.J. at 153-54. Because the statutory standard for modification of limited duration alimony is the equivalent of the standard utilized in prior judicial decisions addressing analogous arrangements, trial courts applying the "unusual circumstances" standard in N.J.S.A. 2A:34-23c should consider decisions addressing modification of such specific provisions under the "not ordinarily fair and equitable" standard of prior decisional law. See, e.g., ibid.; Morris v. Morris, 263 N.J. Super. 237, 241-42 (App. Div. 1993) (enforcing provision foreclosing modification based on changed circumstances despite economic hardship, and noting that a different result might be required in a case involving disability); cf. Peskin v. Peskin, 271 N.J. Super. 261, 275-76 (App. Div.) (settlement agreements must be voluntary not the result of coercion, deception, fraud or undue pressure)[, certif. denied, 137 N.J. 165 (1994)].

[Gordon v. Rozenwald, 380 N.J. Super. 55, 68-69 (App. Div. 2005).]

Plaintiff asserts that defendant agreed to pay a fixed amount of alimony-$104,000-over a term of seven years and should be held responsible to pay that amount, either by a flat sum at the end of the term or by extension of the term until the full sum is paid.

Defendant, on the other hand, contends that plaintiff failed to raise this issue before the Family Part judge and should not be heard now to raise it.

It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available "unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest."

[Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation omitted).]

Because this issue was not addressed by the Family Part judge and neither of the exceptions apply, we decline to con- sider it. However, that is without prejudice to plaintiff's right to present the issue to the Family Part judge.

Further- more, because the basis for the change in alimony and child sup- port was defendant's reduced income, any increase in that income would constitute prima facie changed circumstances sufficient to permit plaintiff to petition for relief from the alimony and child support reductions, as the Family Part judge anticipated by requiring defendant to promptly report any change in his employment or salary.


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