Diane Voynick v. Brian Voynick

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1264-23

DIANE VOYNICK,

Plaintiff-Respondent,

APPROVED FOR PUBLICATION

March 5, 2025

v.

APPELLATE DIVISION

BRIAN VOYNICK,

Defendant-Appellant.

_______________________

Argued October 8, 2024 – Decided March 5, 2025

Before Judges Sumners,1 Susswein and Bergman.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Morris County,

Docket No. FM-14-1395-99.

Angelo Sarno argued the cause for appellant (Sarno

Da Costa, D'Aniello Maceri LLC, attorneys; Angelo

Sarno, of counsel and on the briefs; Laura Guinta

Gencarelli, on the briefs).

Jan L. Bernstein argued the cause for respondent

(Phillips Nizer, LLP, attorneys; Jan L. Bernstein, on

the brief).

1

Judge Sumners did not participate in oral argument but joins the decision

with counsel's consent. R. 2:13-2(b).

The opinion of the court was delivered by

BERGMAN, J.S.C. (temporarily assigned).

In this appeal, we address the legal standards to be applied by a

reviewing court concerning applications for termination or modification of

permanent alimony under N.J.S.A. 2A:34-23(j)(3) based on the retirement of

an obligor when the judgment or order establishing the alimony obligation was

entered prior to the 2014 amendment of N.J.S.A. 2A:34-23.

Based on the language in subsection (j)(3), after an obligor has shown

they have reached a "good faith retirement age," a prima facie showing of

changed circumstances may be established by an obligor satisfying the

standards set out in the Court's seminal holding of Lepis v. Lepis, 83 N.J. 139

(1980). A typical method of showing a prima facie changed circumstance is

through proof of a decrease in an obligor's financial circumstances due to their

retirement affecting their continuing ability to pay alimony at the level set

forth in the current judgment or order. Here, we hold under subsection (j)(3),

that a prima facie change of circumstance can also be shown by an obligee's

financial disclosure or other evidence in the record exhibiting: (1) an obligee

has adequately saved for retirement and no longer has a continuing need for

alimony as set forth in the order or judgment to maintain the standard of living

enjoyed during the marriage; or (2) an obligee had the ability to adequately

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save for retirement after the final judgment of divorce and, if they had done so,

would no longer have a continuing need for alimony as set forth in the order or

judgment to maintain the standard of living enjoyed during the marriage.

Discovery and a hearing are necessary if genuine issues of material fact

exist related to an obligee's ability to have adequately saved for retirement

affecting their continuing need for alimony. At a hearing, under subsection

(j)(3), the obligor has the burden to prove by a preponderance of evidence that

a modification or termination of alimony is warranted based on the factors set

forth in N.J.S.A. 2A:34-23(j)(3)(a to -h).

Defendant challenges the trial court's determination that he failed to

show a prima facie change of circumstances under N.J.S.A. 2A:34-23(j)(3)

entitling him to a termination or downward modification of his permanent

alimony obligation or, in the alternative, to discovery and a hearing. Because

we conclude defendant satisfied his burden in showing a prima facie change of

circumstances concerning plaintiff's ability to have saved adequately for

retirement which may affect her continuing need for alimony or the level of

alimony she was awarded in the Final Judgment of Divorce (FJD), and genuine

issues of material fact existed in the record, we reverse and remand the matter

for the parties to engage in discovery and for a plenary hearing to be held

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3

addressing these issues. We affirm the remainder of defendant's challenges on

appeal based on the cogent reasons set forth in the trial court's oral decision.

I.

The parties were married in 1979. Three children were born of the

marriage, all of whom were emancipated at the time of defendant's motion.

The FJD was entered as a dual judgment of divorce in September 2003. The

FJD incorporated the parties' property settlement agreement (PSA).

Throughout the parties' marriage, defendant was the owner of a veterinary

practice. Plaintiff was primarily responsible for the home and the children, but

also worked as a bookkeeper at the hospital after defendant established it

several years into the marriage. After the divorce, plaintiff ceased working at

the veterinary practice. At the time of their divorce, plaintiff was forty -eight

years old, defendant was forty-seven years old, and the parties' youngest child

was ten years old.

Regarding alimony, the PSA provides in relevant part:

Paragraph 3: The husband agrees to pay to the wife

permanent alimony of $120,000 per year, commencing

September 15, 2003, at the rate of $10,000 per month.

Paragraph 4: The alimony payments referred to above

shall be taxable to the wife and deductible to the

husband on their future independently filed federal

and state income tax returns. The husband's

obligation to pay alimony shall continue until the first

happening of any of the following events:

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Death of either the husband or wife; or

Remarriage of the wife.

Paragraph 5: The parties specifically recognize that

this agreement does not include an anti-Lepis clause.

....

Paragraph 26: Husband shall maintain $1,000,000 of

life insurance on his life naming the wife as the

irrevocable beneficiary of $750,000.

The PSA also provided defendant's alimony obligation was based on his

annual gross income of approximately $400,000 at that time. For

approximately twenty years following the entry of the FJD, defendant

continued to operate his veterinary practice. Defendant sold his practice in

September 2020 but continued to work part-time with compensation based on

commission. He fully retired in May 2021 after working as a veterinarian for

more than forty years. Defendant asserts he took his health and other factors

into consideration when retiring. It is not disputed that defendant became

eligible for full social security retirement benefits when he turned 66.4 years

old in April 2023.

After the divorce, plaintiff moved to North Carolina. She has not held

outside employment since she ceased working at the veterinary practice more

than twenty years prior to the filing of defendant's motion. Plaintiff was

diagnosed with medical conditions in 2007, and after completing treatment has

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had no reoccurrence of those conditions. Plaintiff also had other physical

ailments since the divorce, which she claims have impacted her employability.

After retiring, defendant continued to pay alimony to plaintiff as set

forth in the PSA until he reached full social security retirement age at 66.4

years old. In July 2023, defendant filed a motion seeking to:

1. Terminat[e his] alimony obligation pursuant to the

dual judgment of divorce dated September 10,

2003, and the marital settlement agreement [of the

same date];

2. Terminat[e] [his] obligation to maintain life

insurance pursuant to paragraph 26 of the marital

settlement agreement dated September 10, 2003

based upon a substantial change in circumstances;

[and]

3. Requir[e] plaintiff to pay counsel fees and costs on

behalf of defendant[].

Defendant's motion was supported by a certification with exhibits

including copies of the FJD, PSA, and a current case information statement

(CIS) with copies of 2022 joint state and federal tax returns filed with his wife.

Defendant's motion did not include an alternative request for downward

modification of his alimony obligation.

Plaintiff opposed defendant's motion and filed a cross-motion requesting

enforcement of the parties' PSA and FJD, to increase alimony by $6,000 per

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month, and for counsel fees. Defendant's current CIS showed his assets were

valued at approximately $8 million.

In his motion, defendant argued that substantial change of circumstances

had occurred due to his retirement. His certification stated:

More specifically, I am 66 ½ years of age and I retired

as a veterinarian in May 2022. I understand that I

could have made an application to the [c]ourt to

terminate my alimony obligation sooner based upon

the fact that I was retired, however, I waited until I

was 66 ½ years of age to make this application to the

[c]ourt. My attorney has advised me that once I turn

that age, which is social security eligible, and the fact

that I have in fact retired, I have no earned income,

that my application to the [c]ourt should have no

major objection and that my application to terminate

alimony should be granted.

In opposition, plaintiff asserted: (1) she lives a "relatively humble

lifestyle"; (2) has incurred "significant medical expenses" due to various health

issues; and (3) it was not possible for her to make up the loss of alimony by

taking significant withdrawals from her retirement assets, because her

retirement funds will be depleted far too prematurely. She requested the court

deny defendant's motion.

Plaintiff's CIS filed with her opposition disclosed she had a current net

worth of $2.75 million. Her assets primarily consisted of the equity in her

home which she valued at $1.46 million and her retirement accounts which she

valued at $1.6 million. Plaintiff asserted her debts consisted of a first

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mortgage of approximately $104,000 held by a partnership with which she is

affiliated—Kipka Prop LLC Partnership—and approximately $219,000 on a

home equity line of credit from Wells Fargo.

In his reply, defendant asserted plaintiff: (1) has been in relatively good

health for several years after her medical issues were addressed; (2) was able

to accumulate over $1.5 million in retirement assets; (3) funded the

construction of a $2 million lake front home in North Carolina which was

placed in a trust; (4) failed to disclose in her CIS the existence of a "family

trust in the name of her wealthy father who had passed" for which she was the

beneficiary or whether she received benefits from the trust; (5) failed to list or

deny the existence of an "inheritance [she] received from [defendant's]

brother" allegedly in the approximate amount of $200,000; (6) received

approximately $1,200,000 in assets in equitable distribution; (7) received in

excess of $2,760,000 in alimony since the divorce; (8) failed to respond to

defendant's assertion that she has not taken any distributions from her

retirement account despite being sixty-nine years of age and (9) was capable of

earning income over the twenty plus years since the divorce which could have

added to the funding of her retirement.

During oral argument, the trial court addressed whether defendant had

met his burden to show a prima facie change in circumstances entitling him to

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a termination of his permanent alimony obligation or to discovery and a

hearing. The court addressed whether defendant satisfied the initial burden to

show he "cannot continue to pay alimony." The court found defendant's

inability to show he cannot continue to pay alimony due to his retirement is

where his prima facie showing failed. The trial court found:

[B]ut we talk about that initial burden, is there a prima

facie showing that he cannot afford to continue to pay

the alimony because that's what the statute says. If

you retire, that's, you know, that is evidence of a

change of circumstance. But then there's a second

prong to it which says that [t]he burden continues to

be on that person to show that they cannot continue to

pay the alimony because of the retirement. That is . . .

where his prima facie showing . . . has failed.

Because if I just look at the cold numbers, you know,

the cold numbers indicate that he can certainly pay for

some period of time moving forward. That may

change over time, you know. But right now, with a

person with $8 million of assets in the bank, you

know, how could somebody say that that is going to

not be something which the court is going to consider.

In addition, the trial court focused on the plain language of the PSA ,

explaining:

And how do we get around, you know, Konzelman[2]

saying that if parties agree to certain things in their

2

Konzelman v. Konzelman, 158 N.J. 195 (1999) (holding when parties have

voluntarily agreed to the circumstances which will terminate an

alimony obligation, a court should enforce the agreement when those

circumstances have occurred, even if it does not result in any changed

financial circumstances).

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property settlement agreement that they're bound by

that, regardless of what the law is? I mean what's the

point of having an agreement that the only termination

of alimony is going to be death, remarriage . . . but not

retirement.

Ultimately, the trial court found:

I'm confronted with a very difficult situation. I

certainly understand that nobody wants to pay alimony

after they retire. But I also understand that, you know,

when you have a long-term marriage and somebody

promises to pay alimony permanent[ly] it really

almost — it[s] kind of insulting to say, well, you know

what, permanent doesn't really mean permanent, you

know. Open duration doesn't mean open for the rest

of our lives. It means, you know, something else.

You know, because I don't think that's the impression

that the recipient has when they sign on the dotted

line. And, quite frankly, I'm not sure if the person

paying the alimony really feels that, you know, that

they are going to get out of that. I don't know why in

the agreement it didn't just say, look, alimony's going

to be revisited upon retirement. You know, I mean

you — we see it all the time and I would have no—

then I think there would be a much stronger argument,

you know, that . . . it was agreed that it was going to

be revisited upon retirement, and not terminated,

revisited.

The trial court determined defendant's retirement—standing alone—was

not a prima facie change in circumstances entitling him to a review of his

alimony obligation without a showing by defendant that he could not afford to

continue to pay his alimony obligation. Further, the court noted defendant's

motion requested only a termination of alimony, not a downward modification,

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which would have "been a different argument." On that basis, the court

rejected defendant's argument he was entitled to discovery and a hearing and

entered an order denying defendant's motion to terminate alimony and his

obligation to provide life insurance without prejudice.

Thereafter, the court granted plaintiff's request to enforce paragraph

three of the PSA concerning alimony and paragraph twenty-six concerning his

obligation to carry life insurance. The court denied plaintiff's request to

increase defendant's alimony obligation without prejudice. The court denied

both parties' requests for counsel fees.

On appeal, defendant asserts the trial court erred by: (1) misinterpreting

the PSA concerning the events that should be considered changed

circumstances for purposes of alimony termination or modification; (2) failing

to find defendant's good faith retirement was a prima facie showing of a

changed circumstance warranting a review of his permanent alimony

obligation; and (3) improperly applying the factors of N.J.S.A. 2A:34-23(j)(3),

specifically, the requirement concerning plaintiff's "ability . . . to have saved

adequately for retirement."

II.

Our review of a Family Part judge's findings is limited. We "afford

substantial deference to the Family Part's findings of fact because of that

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court's special expertise in family matters." W.M. v. D.G., 467 N.J. Super.

216, 229 (App. Div. 2021) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)).

"Under that deferential standard of review, we are bound to uphold a finding

that is supported by sufficient credible evidence in the record." Moynihan v.

Lynch, 250 N.J. 60, 90 (2022). "We will reverse only if we find the [court]

clearly abused [its] discretion." Clark v. Clark, 429 N.J. Super. 61, 72 (App.

Div. 2012).

We apply that deference to a Family Part judge's decision regarding a

motion to amend a marital-support obligation. Cardali v. Cardali, 255 N.J. 85,

107 (2023); see also Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)

("Whether [a support] obligation should be modified . . . rests within a Family

Part judge's sound discretion"). Thus, a Family Part judge's decision regarding

a support obligation should not be disturbed unless "the court made findings

inconsistent with the evidence or unsupported by the record or erred as a

matter of law." Reese v. Weis, 430 N.J. Super. 552, 572 (App. Div. 2013).

We review questions of law de novo. Amzler v. Amzler, 463 N.J. Super. 187,

197 (App. Div. 2020).

A-1264-23

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III.

A.

Initially, we address defendant's argument the court erred by finding his

retirement was not a prima facie showing of changed circumstances. The court

found retirement was not explicitly listed as a triggering event in the PSA

which permitted the termination or modification of defendant's alimony

obligation. We note the record is unclear whether the court fully addressed

this issue. We glean from the court's findings that it determined the explicit

terms in the PSA foreclosed consideration of defendant's retirement from being

considered a changed circumstance for alimony termination or modification

purposes. We also observe the court made findings after assuming defendant's

retirement was a prima facie change of circumstances in the PSA for alimony

termination purposes.

General contract principles govern interpretation of property settlement

agreements. Dworkin v. Dworkin, 217 N.J. Super. 518, 524 (App. Div. 1987).

The goal in contract interpretation is to ascertain the probable intent of the

parties. Sinopoli v. North River Ins. Co., 244 N.J. Super. 245, 250 (App. Div.

1990). The court should inspect all language within the four corners of the

contract and consider the surrounding circumstances and conduct of the parties

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when ascertaining the probable intent of the parties. Regan v. Regan, 246 N.J.

Super. 473, 478 (Ch. Div. 1990).

Based upon our review of the record, we determine no ambiguity exists

in the PSA concerning the triggering events permitting the termination of

defendant's permanent alimony obligation. Although paragraph four states the

husband's obligation to pay alimony shall continue until the "first happening of

the death of either the husband or wife; or the remarriage of the wife,"

paragraph five states the parties specifically recognize that "this agreement

does not include an anti-Lepis3 clause." An anti-Lepis clause [contractually]

limits the factual situations qualifying as a change in circumstances sufficient

to modify an alimony obligation. See Quinn v. Quinn, 225 N.J. 34, 49-50

(2016) (citing Konzelman, 158 N.J. at 193).

We conclude there would be no purpose for paragraph five, placed

immediately after the terms concerning permanent alimony at paragraph four,

if the parties intended alimony could never be modified or terminated except

for the two reasons set forth in paragraph four. The PSA specifically states it

does not include an anti-Lepis clause which we determine clearly connotates

3

In Lepis, 83 N.J. at 157, the Supreme Court set forth "the proper procedure

for courts to follow on modification motions." "A prima facie showing of

changed circumstances must be made before a court will order discovery ."

Id. at 157-58.

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the defendant's alimony obligation is subject to modification based on changed

circumstance as defined under Lepis. Therefore, to the extent the court found

the terms of the PSA did not permit the defendant to terminate or modify his

alimony obligation except for the two reasons listed in paragraph four, we

conclude this finding was a misapplication of its discretion and reverse this

determination.

B.

We now address the trial court's denial of defendant's motion because his

moving papers requested only termination of his alimony obligation, not a

downward modification. Since we conclude the same legal principles of

changed circumstances set forth in Lepis apply to both a termination and

modification of an alimony obligation, the court's ruling barring defendant

from alternatively requesting a decrease was also a misapplication of the

court's discretion. Defendant's modification request is supported by the plain

language of the PSA and permitting him to alternatively request a downward

modification of alimony did not prejudice plaintiff because defendant's burden

to show a prima facie changed circumstance is the same for both termination

and modification of alimony.

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C.

We now turn to defendant's contention that the trial court erred by

finding his retirement after reaching a "good faith retirement age" was not a

prima facie changed circumstance entitling him to a termination or

modification of his alimony obligation nor sufficient to require discovery and a

hearing. Defendant asserts proof of him reaching good faith retirement age

and his assertion that he has no "earned income" was a sufficient showing of a

prima facie changed circumstance or, at a minimum, created genuine issues of

material fact requiring discovery and a hearing. Because we conclude the

court correctly determined that defendant's failure to show a decrease in his

financial circumstances after reaching good faith retirement age was not a

prima facie change of circumstance under N.J.S.A. 2A:34-23(j)(3), we concur

with the court's determination.

"The award of '[a]limony in New Jersey is primarily governed by

statute.'" Landers v. Landers, 444 N.J. Super. 315, 320 (App. Div. 2016)

(quoting Gayet v. Gayet, 92 N.J. 149, 150 (1983)). In 2014, our Legislature

made substantial changes to the alimony statute set forth at N.J.S.A. 2A:34-23.

The Legislature's changes to N.J.S.A. 2A:34-23 were observed to have

effectively end[ed] permanent alimony and limit the

length of payments for couples married fewer than 20

years. It also ma[d]e it easier to reduce or end

payments if spouses lose their jobs or retire. The

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measure was the product of negotiations between

advocates seeking sweeping changes and women's

groups and law associations.

....

[C]urrent payers will be eligible for some of the new

provisions, including the presumption that alimony

ends at age 67.

[Sophia Hollender, City News: N.J. Gets New Rules

On Alimony, Wall Street Journal, September 11, 2014,

at A18.]

Specifically, in the statutory amendments, the Legislature replaced

"permanent alimony" with "open durational alimony." See N.J.S.A. 2A:34-

23(b). Additionally, the Legislature added the following language to the

statute related to alimony:

In any case in which there is a request for an award of

alimony, the court shall consider and make specific

findings on the evidence about all of the statutory

factors set forth in subsection b. of this section.

For any marriage or civil union less than 20 years in

duration, the total duration of alimony shall not,

except in exceptional circumstances, exceed the length

of the marriage or civil union. Determination of the

length and amount of alimony shall be made by the

court pursuant to consideration of all of the statutory

factors set forth in subsection b. of this section. In

addition to those factors, the court shall also consider

the practical impact of the parties’ need for separate

residences and the attendant increase in living

expenses on the ability of both parties to maintain a

standard of living reasonably comparable to the

standard of living established in the marriage or civil

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union, to which both parties are entitled, with neither

party having a greater entitlement thereto.

Exceptional circumstances which may require an

adjustment to the duration of alimony include:

(1) The ages of the parties at the time of

the marriage or civil union and at the time

of the alimony award;

(2) The degree and duration of the

dependency of one party on the other

party during the marriage or civil union;

(3) Whether a spouse or partner has a

chronic illness or unusual health

circumstance;

(4) Whether a spouse or partner has given

up a career or a career opportunity or

otherwise supported the career of the

other spouse or partner;

(5) Whether a spouse or partner has

received a disproportionate share of

equitable distribution;

(6) The impact of the marriage or civil

union on either party’s ability to become

self-supporting, including but not limited

to either party’s responsibility as primary

caretaker of a child;

(7) Tax considerations of either party;

(8) Any other factors or circumstances

that the court deems equitable, relevant

and material.

[N.J.S.A. 2A:34-23(c).]

A further amendment to the statute specifically addressed the effect of

an obligor's retirement on their alimony obligation stating "[a]limony may be

modified or terminated upon the prospective or actual retirement of the

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obligor." N.J.S.A. 2A:34-23(j). Relevant to this appeal, the Legislature

further added subsection (j)(3) which states:

When a retirement application is filed in cases in

which there is an existing final alimony order or

enforceable written agreement established prior to the

effective date of this act, the obligor's reaching full

retirement age as defined in this section shall be

deemed a good faith retirement age. Upon application

by the obligor to modify or terminate alimony, both

the obligor's application to the court for modification

or termination of alimony and the obligee's response

to the application shall be accompanied by current

Case Information Statement or other relevant

documents as required by the Rules of Court, as well

as the Case Information Statements or other

documents from the date of entry of the original

alimony award and from the date of any subsequent

modification. In making its determination, the court

shall consider the ability of the obligee to have saved

adequately for retirement as well as the following

factors in order to determine whether the obligor, by a

preponderance of the evidence, has demonstrated that

modification or termination of alimony is appropriate:

(a) The age and health of the parties at

the time of the application;

(b) The obligor's field of employment and

the generally accepted age of retirement

for those in that field;

(c) The age when the obligor becomes

eligible for retirement at the obligor's

place of employment, including

mandatory retirement dates or the dates

upon which continued employment would

no longer increase retirement benefits;

(d) The obligor's motives in retiring,

including any pressures to retire applied

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by the obligor's employer or incentive

plans offered by the obligor's employer;

(e) The reasonable expectations of the

parties regarding retirement during the

marriage or civil union and at the time of

the divorce or dissolution;

(f) The ability of the obligor to maintain

support payments following retirement,

including whether the obligor will

continue to be employed part-time or

work reduced hours;

(g) The obligee's level of financial

independence and the financial impact of

the obligor's retirement upon the obligee;

and

(h) Any other relevant factors affecting

the parties' respective financial positions.

[N.J.S.A. 2A:34-23(j)(3).]

Subsection (j)(3) substantially followed the procedural framework of the

Supreme Court's seminal opinion of Lepis. See Landers, 444 N.J. Super. at

323 (determining that subsection (j)(3) "follows the prior principles outlined in

Lepis and its progeny").

Prior to the amendment of the statute, one way a party could seek

modification of alimony was by "demonstrating that changed circumstances

have substantially impaired the ability to support himself or herself." Amzler,

463 N.J. Super. at 197-98 (quoting Landers, 444 N.J. Super. at 320). In

addition, "[a]n income reduction resulting from a 'good faith retirement' after

age sixty-five [was] a well-recognized change of circumstances event,

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prompting a detailed review of the financial situation facing the parties to

evaluate the impact retirement has on a preexisting alimony award." Landers,

444 N.J. Super. at 320.

Based on these legal principles, we determine an obligor moving to

terminate or modify an alimony obligation under subsection (j)(3) is first

required to prove they have reached full retirement age based on the definition

provided in the Social Security Act. See N.J.S.A. 2A:34-23. "Full retirement

age" was defined as "the age at which a person is eligible to receive full

retirement benefits under section [2]16 of the federal Social Security Act (42

U.S.C.[A.] § 416)." Ibid. As part of their application, the obligor is next

required to file a current CIS or other relevant documents, as well as the CIS

from the date of entry of the original alimony award or from the date of any

subsequent order which modified the award. The same financial documents

are required to be filed by the obligee. See N.J.S.A. 2A:34-23(j)(3). After a

court's review of an obligor's proofs supporting their motion and an obligee's

response, it must determine whether an obligor has made a prima facie

showing of changed circumstances entitling the obligor to termination or

modification of their alimony obligation or, in the alternative, to discovery and

a hearing.

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In this matter, it is not disputed that defendant reached "full retirement

age" and the filing of his motion when he was approximately sixty-seven years

old was considered "a good faith retirement age" under subsection (j)(3).

Defendant asserts because he has proven he has reached a good faith

retirement age and he no longer has an "earned income" that he is entitled to a

termination of his alimony obligation or, in the alternative, a review of his

alimony obligation for a reduction is required. We disagree.

A comparison of the language in subsections (j)(1) and (j)(3) of N.J.S.A.

2A:34-23 aids our analysis. N.J.S.A. 2A:34-23(j)(1) states in pertinent part:

(1) There shall be a rebuttable presumption that

alimony shall terminate upon the obligor spouse or

partner attaining full retirement age, except that any

arrearages that have accrued prior to the termination

date shall not be vacated or annulled. The court may

set a different alimony termination date for good cause

shown based on specific written findings of fact and

conclusions of law.

The rebuttable presumption may be overcome if, upon

consideration of the following factors and for good

cause shown, the court determines that alimony should

continue.

When comparing N.J.S.A. 2A:34-23 subsection (j)(1) to subsection

(j)(3), we note under subsection (j)(3) there is no rebuttable presumption that

alimony should terminate based on reaching full retirement age, unlike

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subsection (j)(1). In contrast, subsection (j)(3) deems reaching full retirement

age to be a "good faith retirement age." (Emphasis added).

We conclude based on the language set forth in subsection (j)(3) that an

obligor reaching full social security retirement age would be deemed to have

retired at "a good faith retirement age." We further conclude by adding

subsection (j)(3) in the 2014 amendment to N.J.S.A. 2A:34-23, the Legislature

modified the common law standard under Lepis which previously required an

obligor to prove their retirement was made in good faith as the first step in

showing a prima facie changed circumstance in order to modify an alimony

obligation.

Prior to the 2014 amendment to N.J.S.A. 2A:34-23 which added

subsection (j) related to an obligor's retirement, we had concluded:

the voluntariness of the change in circumstances, in

itself, is viewed as barring an application for

modification. In other words, if a party, not otherwise

under compulsion, voluntarily chooses a change in

lifestyle which reduces his or her financial

circumstances, he or she may not base an application

for modification of an alimony award on that

voluntary change.

[Deegan v. Deegan, 254 N.J. Super. 350, 356 (App.

Div. 1992).]

"[V]oluntary retirement cases are evaluated solely based upon the

motives of the party seeking to make the change. If the change is made in

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good faith, the application for modification is approved." Ibid. An obligor

seeking to reduce a support obligation because of an income decrease due to a

voluntary early retirement must show that the "advantage to the retiring spouse

substantially outweighs the disadvantage to the payee spouse." Id. at 358.

We also applied the Deegan "voluntary" analysis to circumstances where

the supporting spouse voluntarily changed their career and thus reduced their

income before retirement, Storey v. Storey, 373 N.J. Super. 464, 468-69 (App.

Div. 2004); and to a dependent spouse who suffered a disadvantage because

the supporting spouse voluntarily continued working beyond normal retirement

age and thus delayed the dependent spouse's ability to collect from a pension

under equitable distribution terms in the divorce judgment, Moore v. Moore,

376 N.J. Super. 246, 247 (App. Div. 2005).

These cases stand for the proposition that courts were required to engage

in an evaluation of whether an obligor's retirement and subsequent decrease in

their financial circumstances was "voluntary." Under the cases cited above, a

retirement not made in good faith was deemed a voluntary financial reduction

and was not considered to be a change of circumstance permitting a review of

a payor's alimony obligation.

We conclude, by enacting subsection (j)(3), the Legislature eliminated

an obligor's affirmative burden under Deegan to show that their retirement was

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made in good faith and was not "voluntary" by the obligor reaching a "good

faith retirement age " under the definition set forth in the Social Security Act.

See N.J.S.A. 2A:34-23(j)(3).

"[T]he Legislature is presumed to be aware of judicial construction of its

enactments." DiProspero v. Penn, 183 N.J. 477, 494 (2005) (quoting N.J.

Democratic Party, Inc. v. Samson, 175 N.J. 178, 195 n.6 (2002)). Thus, "a

change of language in a statute ordinarily implies a purposeful alteration in

[the] substance of the law." Ibid. (alteration in original) (quoting Nagy v. Ford

Motor Co., 6 N.J. 341, 348 (1951)). Furthermore, "[t]he Legislature is

presumed to be familiar with its own enactments, with judicial declarations

relating to them, and to have passed or preserved cognate laws with the

intention that they be construed to serve a useful and consistent purpose."

State v. Federanko, 26 N.J. 119, 129 (1958) (emphasis added) (citing Appeal

of N.Y. State Realty & Terminal Co., 21 N.J. 90 (1956)).

As we stated previously, it is undisputed that defendant had reached full

retirement age at the time he filed his motion to terminate his permanent

alimony obligation. Therefore, we conclude his retirement was a good faith

retirement under N.J.S.A. 2A:34-23(j)(3).

Under this analytical framework, after the obligor has shown a good

faith retirement, the next step is for a reviewing court to determine if a prima

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facie change in circumstances has been shown based on an obligor's overall

financial status related to their continuing ability to pay the alimony

obligation, including their non-immune assets, income and reasonable income

stream, if any, from non-exempt assets. See N.J.S.A. 2A:34-23(j)(4) (directing

assets distributed between the parties at the time of the entry of a final order of

divorce shall not be considered by the court for purposes of determining the

obligor's ability to pay alimony following retirement). During this step a

reviewing court should also evaluate whether an obligor has shown a prima

facie change of circumstances and whether their retirement substantially

impaired their financial ability to support themselves under the same standard

of living enjoyed during the marriage. See N.J.S.A. 2A:34-23(b)(4) (stating

when determining an alimony award the court shall consider [t]he standard of

living established in the marriage . . . and the likelihood that each party can

maintain a reasonably comparable standard of living, with neither party having

a greater entitlement to that standard of living than the other).

When applying the foregoing principles, we conclude the court did not

abuse its discretion by finding defendant met his burden under subsection

(j)(3) to show he has reached a good faith retirement age, but failed to make a

prima facie showing that his income and assets were insufficient to continue

paying his permanent alimony obligation or that his retirement impaired his

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ability to support himself based on the standard of living he had during the

marriage.

Our review of the record demonstrates, as the court found, that

defendant failed to provide sufficient information in his CIS, certification and

other submissions which enabled the court to undertake an appropriate analysis

of his income and assets to determine whether there was a prima facie showing

of a changed circumstance. Defendant provided no evidence, expert or

otherwise, delineating his immune and non-immune assets or the income

stream from those non-immune assets. This evidence is necessary to

determine whether he has an ability to pay the currently ordered level of

alimony when compared to his financial circumstances at the time he entered

into the PSA. Because defendant failed to adequately categorize the assets in

his CIS and failed to engage in any financial analysis including an income

stream analysis of his non-immune assets, the court's finding—which found

the approximate $8 million in assets held by defendant and the potential

income stream which could be generated from these assets demonstrated

defendant had the ability to continue paying alimony to plaintiff—was clearly

supported by credible evidence in the record. We conclude there was no error

in this finding.

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D.

We now address defendant's contention the court misapplied the specific

provision in N.J.S.A. 2A:34-23(j)(3) related to the "ability of the [plaintiff] to

have saved adequately for retirement." In its oral decision, the court found:

[defendant]'s argument that [plaintiff] should have

saved all these years, she's had a bunch of medical

issues, you know, and . . . well, you're not living in

Morris County anymore, but, you know, [does]

$120,000 a year really have enough fat on it that

you're going to be able to save the same as a person

who's earning over a million dollars here. Probably

not.

We have previously held that subsection (j)(3) "elevates the ability of

the obligee to have saved adequately for retirement, listed only as a factor

under N.J.S.A. 2A:34-23(j)(1), setting it apart from other considerations and

requiring its explicit analysis." Landers, 444 N.J. Super. at 324 (citing

N.J.S.A. 2A:34-23(j)(3)).

This language first appears in the statute at subsection (j)(1)(j) as a

factor to consider concerning the termination or modification of alimony when

an order or agreement was entered after the statute's amendment in 2014. As

stated previously, an obligor reaching full retirement age under subsection

(j)(1) is entitled to a rebuttable presumption that alimony should be terminated.

Subsection (j)(1)(j) stated "[t]he ability of the recipient to have saved

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adequately for retirement" was one of several factors which can be utilized to

rebut this presumption. See N.J.S.A. 2A:34-23(j)(1)(a-k).

Subsection (j)(3) differs from subsection (j)(1) by explicitly setting forth

the ability of the obligee "to have saved adequately for retirement" in the main

portion of this subsection, separately from the other factors. We deem this

formulation requires a reviewing court to specifically consider the ability of an

obligee to have saved adequately for retirement in its analysis related to an

obligor's motion to terminate or modify alimony under subsection (j)(3) . See

Landers, 444 N.J. Super. at 324. This subsection of the statute explicitly

mandates the court to undertake this analysis as part of its determination

whether an obligor has met their burden to show a prima facie change of

circumstances to trigger a review of their alimony obligation.

We determine under subsection (j)(3) that an obligee is required to

produce competent evidence to support their position that they were unable to

adequately save for retirement and they have a continuing need for alimony in

order to maintain a comparative standard of living enjoyed during the

marriage. This requirement is the first consideration listed in subsection (j)(3)

after the obligation for the parties to file a disclosure of their financial

information.

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By subsection (j)(3) requiring an obligee to affirmatively provide

financial information, we determine the Legislature intended a reviewing court

to independently consider an obligee's ability to have adequately saved for

retirement. We further determine this information is required for a reviewing

court to determine an obligee's continuing need for alimony at the time of an

obligor's retirement. These determinations are crucial in deciding whether a

prima facie changed circumstance has been shown. We find support for this

proposition related to an obligee's continuing need for alimony at subsection

(j)(3)(g) which requires consideration of an "obligee’s level of financial

independence and the financial impact of the obligor’s retirement upon the

obligee." N.J.S.A. 2A:34-23(j)(3)(g).

Based on the language of N.J.S.A. 2A:34-23(j)(3), we conclude the

Legislature intended that a prima facie changed circumstance can not only be

shown through a change in an obligor's financial circumstances after

retirement affecting their continuing ability to pay alimony, but also may be

exhibited through an obligee's financial disclosure or other evidence

demonstrating a continuing need for alimony, or lack thereof. If the motion

record demonstrates there is prima facie evidence demonstrating an obligee

has adequately saved for retirement or had the ability to adequately save for

retirement, discovery and a hearing is necessary to determine whether

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termination or reduction of alimony is warranted. A hearing is required where

there is a dispute in material fact. Murphy v. Murphy, 313 N.J. Super. 575,

580 (App. Div. 1998); Lepis, 83 N.J. at 159. A material factual dispute

"bear[s] directly on the legal conclusions required to be made and [such]

disputes can only be resolved through a plenary hearing." Spangenberg v.

Kolakowski, 442 N.J. Super. 529, 540 (App. Div. 2015).

After our review of the record, we conclude plaintiff did not provide a

sufficient financial disclosure or evidence exhibiting that her current financial

circumstances demonstrated a continuing need for alimony in the current

annual amount of $120,000. We also determine plaintiff failed to provide

specific reasons nor any analysis showing her inability to have adequately

saved for retirement since the entry of the FJD over twenty years ago. In

addition, we conclude defendant effectively challenged plaintiff's assertions

related to her continuing need for alimony and her ability to have adequately

saved for retirement which created genuine factual issues in the record .

Plaintiff's CIS admitted she had a net worth of $2.75 million consisting

of a home she valued at $1.46 million and retirement accounts valued at $1.6

million. She listed debts which are a small fraction of her net worth.

Defendant's certification and reply certification claimed: (1) plaintiff has been

in relatively good health for several years after her medical issues were

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addressed; (2) her accumulation of substantial non-immune assets; (3) her

funding the construction of a home in North Carolina which defendant claims

has a present value of $2 million allegedly placed in a trust; (4) the existence

of a "family trust in the name of her wealthy father who had passed" for which

she receives benefits; (5) an inheritance from [defendant's] brother of

$200,000; (6) plaintiff's receipt of support under the FJD in the amount of

$2,760,000 since it was entered; and (7) defendant's assertion that plaintiff had

the ability to earn income during the twenty plus years since the divorce which

could have added to the funding of her retirement needs.

We conclude these factual disputes are material to plaintiff's ability to

have adequately saved for retirement and her need for alimony. Material

factual issues also exist as to whether plaintiff's current income, ability to earn

income after the divorce, her assets and potential income stream from non -

immune assets enable her to fully or partially support herself in the same

standard of living she enjoyed during the marriage.

IV.

In sum, we conclude the trial court misapplied its discretion in

determining plaintiff's opposition satisfied her obligation to prove her current

financial circumstances exhibit a continuing need for alimony or that she was

unable to adequately save for retirement requiring a continuation of alimony at

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the level of $120,000 per year as set forth in the FJD. Therefore, we are

constrained to vacate the order denying defendant's motion on these bases and

remand to the trial court to set a discovery schedule and conduct a plenary

hearing to determine whether defendant is entitled to a termination or

downward modification of his alimony obligation. We further conclude, for

purposes of discovery and for consideration at the hearing, that defendant's

financial circumstances are also relevant to the factors set forth in N.J.S.A.

2A:34-23(j)(3). We therefore direct the trial court to enter an order permitting

the parties to conduct discovery concerning the other's financial circumstances,

including their respective assets, income, potential income stream from non-

exempt assets and their income earned or their ability to have earned income

after the divorce judgment was entered to the present time. This list is not to

be considered exhaustive, and we leave the scope of discovery to the court's

discretion, including whether a case management conference is necessary to

address any specific discovery issues or requests by the parties which may be

relevant at the hearing.

At the hearing, the burden remains on the defendant to prove by a

preponderance of the evidence that a modification or termination of alimony is

warranted under the requirements and factors set forth in N.J.S.A. 2A:34-

23(j)(3) that: (1) plaintiff has adequately saved for retirement and no longer

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has a continuing need for alimony at its current level in order to maintain the

standard of living enjoyed during the marriage, or (2) plaintiff had the ability

to adequately save for retirement, and if she had done so, would no longer

have a continuing need for alimony, or the currently ordered amount of

alimony set forth in the FJD in order to maintain the standard of living enjoyed

during the marriage.

Affirmed in part, reversed in part and remanded for further proceedings

consistent with this opinion. We do not retain jurisdiction.

I hereby certify that the foregoing is

a true copy of the original on file in

my office.

Clerk of the Appellate Division

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