Peter Schmitz v. Susan Fairhurst

NOT FOR PUBLICATION WITHOUT THE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

APPELLATE DIVISION

DOCKET NO. A-2775-21

PETER SCHMITZ,

Plaintiff-Appellant,

v.

SUSAN FAIRHURST,

Defendant-Respondent.

________________________

Argued November 1, 2023 – Decided November 21, 2023

Before Judges Firko and Susswein.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Burlington County,

Docket No. FM-03-1258-20.

Ronald G. Lieberman argued the cause for appellant

(Adinolfi, Lieberman, Burick, Roberto & Molotsky,

PA, attorneys; Ronald G. Lieberman, on the briefs).

Janine Danks Fox argued the cause for respondent

(Szaferman, Lakind, Blumstein & Blader, PC,

attorneys; Janine Danks Fox, of counsel and on the

brief).

PER CURIAM

In this post-judgment matrimonial matter, plaintiff Peter Schmitz appeals

from portions of the Family Part's April 21, 2022 order denying his motion to

terminate or modify his alimony obligations based on provisions contained in

the parties' marital settlement agreement (MSA).1 He also appeals from the

order granting defendant Susan Fairhurst's cross-motion for summary judgment

precluding plaintiff from seeking modification and requiring him to pay arrears

with interest and counsel fees. We are constrained to reverse and remand

because the judge did not conduct a plenary hearing to resolve the parties'

sharply conflicting factual assertions regarding the alimony provisions and the

representations each made to the other during the negotiation of the MSA.

I.

The parties were married in October 1985 and divorced in October 2005.

They incorporated their MSA into their dual final judgment of divorce.

Defendant didn't work outside the home during the marriage. At the time of

their divorce, defendant became employed after raising the parties' children. Her

annual income was $40,000. Plaintiff worked in the aviation industry and was

the sole wage earner for the majority of the marriage. At the time of their

1

Specifically, plaintiff appeals from paragraphs 1, 2, 3, 4, 8, 10, 11, 12, 13, 14,

15, 16, 17, 19, 21, 22, 23, and 26 of the order.

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separation in 2001, plaintiff earned a gross income of $248,500. The MSA

provided plaintiff was to pay defendant alimony at the rate of $7,083 per month

or $85,000 per annum.

Article II, paragraph 4 of the MSA states alimony would terminate by any

one or more of the following:

Termination of Obligation: The terms of this Article

shall continue for the natural lives of the parties, unless

terminated by any one or more of the following:

(a) Death of Wife;

(b) Remarriage of Wife or her cohabitation with

an unrelated male under conditions which the law then

in effect indicates is a basis to terminate or modify

alimony;

(c) Repudiation or modification of this

Agreement by mutual consent of the parties, provided

that said repudiation or modification is in writing and

duly signed and witnessed;

(d) Death of Husband. However, nothing herein

contained shall be deemed to relieve Husband's estate

of any obligations incurred hereunder by Husband and

vested with Wife prior to Husband's death. Thus, any

alimony that shall be due as of the date of death shall

continue to be payable, although there shall be no

obligation to make payments for any time period after

said date of death. Should Wife predecease Husband,

then and in that event, Wife, for herself, her heirs,

executors, administrators and assigns, hereby agrees

that all rights under this Article, except as provided in

this subparagraph, shall terminate.

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3

Article II, paragraph 5 addresses renegotiation of alimony:

Renegotiation Upon Occurrence of Certain Events: The

payments provided for in this Article may be

renegotiated upon Husband's request upon his

retirement from active employment or upon Husband

suffering from any medically determinable physical or

mental impairment that renders him unable to engage in

any substantial gainful employment or significantly

reduces his income.

Wife agrees not to seek any modification in alimony

unless she becomes disabled and unable to work and

she specifically waives her right to modify based on

increases in Husband's income or the termination of

child support.

Article V, paragraph 1 provides for life insurance to secure alimony and

states plaintiff's obligation to maintain said insurance shall end upon the

termination of his obligation to provide alimony as set forth in Article II,

paragraph 4, "but is subject to modification when alimony is reviewed." Article

XI, paragraph 1 provides for "Final Agreement; No Merger," . . . "[o]ther than

upon a showing of substantially changed circumstances, neither party . . . shall

seek alimony or support contrary to the provisions of this Agreemen t."

(emphasis added). And, Article XIV, paragraph 3 refers to "situs" and states

alimony was "entered into in the State of New Jersey and shall be construed and

interpreted under and in accordance with the laws of the State of New Jersey."

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Post-divorce, plaintiff's earnings increased each year from $470,602 in

2006, to a peak of $1.6 million in 2015. Thereafter, plaintiff's earnings

significantly declined from $1.19 million in 2016, to $445,648 in 2017, to

$376,515 in 2018, to $32,298 in 2019. In 2016, plaintiff lost his job and was

unable to maintain consistent employment in his field.

In May 2019, plaintiff filed a motion with an accompanying certification

to terminate or modify his alimony obligations based upon loss of employment

and substantially reduced financial circumstances. Plaintiff stated he started his

career as a pilot and then worked in business management positions. Following

the divorce, plaintiff certified he changed jobs to pursue better opportunit ies,

but in 2016 was terminated due to the employer's downsizing. Four months

later, plaintiff secured new employment but earned less money. Because of the

"exceptionally small specialty field" in which plaintiff had been employed in the

past, he was unsuccessful in obtaining a new job.

Plaintiff stated he continued to make alimony payments that fell short of

his obligation because that was all he could afford. He also received

unemployment benefits in the amount of $275 per week from the State of

Florida2 and sent one-half of that amount to defendant towards payment of his

2

Plaintiff relocated to Florida after the parties' divorce.

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5

alimony obligation. Plaintiff certified he had no liquid savings or funds to meet

the alimony obligation and submitted a current case information statement (CIS)

to support his argument.

Plaintiff claimed his lifestyle has been downgraded. By way of example,

plaintiff stated he sold his car and replaced it with a more affordable one; he

moved to a smaller home; he invaded his retirement savings before age 59 1/2

and incurred penalties and taxes; and he cannot meet his budget. In contrast,

plaintiff certified that defendant enhanced her lifestyle following the divorce by

renovating her home, buying a sports car, and taking vacations. Plaintiff also

moved to terminate or modify his obligation to maintain life insurance to secure

his alimony obligation pursuant to Article V, paragraph 1 of the MSA. Plaintiff

is currently self-employed.

Defendant cross-moved to deny plaintiff's motion, hold him in violation

of litigant's rights for failing to abide by his alimony obligations, to direct him

to pay alimony arrearages of $47,000, and for counsel fees and costs. Defendant

argued plaintiff did not satisfy any of the limited criteria set forth in Article II,

paragraph 4 of the MSA to warrant termination or modification of his alimony

and alimony related obligations. Defendant also cross-moved to seize plaintiff's

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6

retirement assets to secure her alimony payments. She also questioned whether

plaintiff's loss of employment was "involuntary or caused by his own actions."

On October 10, 2019, the first judge entered an order reserving decision

on the motions pending the parties' participation in a post-judgment early

settlement panel (ESP). The judge also suspended plaintiff's alimony obligation

pendente lite. On November 19, 2019, an order was entered amending the

October 10, 2019 order, which included a supplemental statement of facts and

conclusions of law.

The first judge noted in the November 19, 2019 order that Article II,

paragraph 5 of the MSA was ambiguous and could be interpreted to mean either:

(1) the language created an exclusive list of changed circumstances permitting

modification or (2) the language set forth a non-exhaustive list of certain

foreseeable instances in which modification is warranted. The judge added:

The [c]ourt finds that both parties' interpretations of the

Agreement are colorable, and that Article II, paragraph

5 of the parties' MSA is sufficiently ambiguous to

warrant a hearing to determine the parties' intent at the

time of the [MSA]. The [c]ourt also finds that should

the paragraph be determined to be nonexhaustive, then

[p]laintiff has made a prima facie showing of change in

circumstance under Lepis.3

3

Lepis v. Lepis, 83 N.J. 139, 146 (1980).

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7

The judge emphasized "plaintiff's unemployment and reduced income . . .

clearly constitute[d] a change of circumstances warranting a modification of

plaintiff's alimony obligation."

The matter was not resolved at the ESP. The parties also attempted to

privately mediate their disputes without success. Defendant moved for

reconsideration of the October 10 and November 19, 2019 orders. Plaintiff

opposed defendant's motion for reconsideration and cross-moved for limited

discovery and for a plenary hearing. At the motion hearing held on February

21, 2020, plaintiff reiterated the MSA incorporated New Jersey statutory and

case law permitting modification or termination of alimony based upon loss of

employment or a decrease in income—whether or not the MSA expressly stated

that—and the MSA had no express anti-Lepis clause.

Plaintiff further argued paying $85,000 per year in alimony based on his

current $100,000 per annum income was unreasonable, especially in light of the

fact that defendant's gross income rose to $85,179 in 2019. Plaintiff's CIS

revealed his gross income for 2020 was $90,882. Thus, the parties had almost

the same earned income amounts. Plaintiff maintained his income was reduced

by over 75% from his income at the time of the divorce, and he used a

"mathematical formula" to pay 20% of his gross income as alimony, which was

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the equivalent percentage of his income used in the MSA. Defendant asserted

she limited her ability to seek increases in alimony because "it was more

valuable to [her] to receive guaranteed payments to ensure security for [her]

future . . . ."

On February 25, 2020, the first judge entered an order denying defendant's

motion for reconsideration. The judge referred the parties to another post -

judgment ESP, directed defendant to file a CIS, and permitted the parties to

engage in limited discovery relating to their disputed interpretations of the MSA

as it pertained to alimony and alimony related obligations, such as life insurance,

and ordered a plenary hearing. The February 25, 2020 order also required

plaintiff to maintain a minimum $100,000 balance in his retirement account for

six months to secure his alimony obligation. 4

In June 2020, the venue was changed from Mercer to Burlington County. 5

A second judge was then assigned to the matter. Following motion practice,

discovery was ordered on the issues to be addressed at the plenary hearing.

4

Counsel confirmed at oral argument that the $100,000 remains in the account.

5

Venue was changed because defendant's prior counsel had become a Superior

Court judge and was serving as the presiding judge of the Family Part in Mercer

County. Defendant's counsel sought to depose the judge.

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9

Counsel for both parties agreed to serve written deposition questions in lieu of

oral examinations under oath on both parties' former attorneys. In response to

certain written questions, plaintiff's former attorney stated there was no anti-

Lepis clause regarding plaintiff in the MSA drafts or final MSA, but there was

an anti-Lepis clause pertaining to defendant. Plaintiff's prior attorney also

indicated in another written response that Article II, paragraph 5 of the MSA

barred defendant from modifying the alimony provision, but there was no such

reciprocal language against plaintiff.

Defendant's prior attorney responded to a written question about whether

she advised defendant to limit the amount of support she received if plaintiff

could return to court "for any reason to reduce alimony." Her response was, "I

do not recall any specific discussions with [defendant] about accepting a lower

amount of alimony in exchange for limiting [plaintiff's] ability to come back to

court to reduce his alimony in the future." Regarding a question involving

former defense counsel's drafting of settlement agreements in other matrimonial

cases, she responded, "there does not necessarily need to have a Lepis provision

actually included in the MSA, there just has to be a substantial change in

circumstances." Neither of the parties' former attorneys indicated there was an

anti-Lepis clause applicable to plaintiff, and no draft of the MSA precluded him

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from filing a motion to terminate or modify his alimony obligation based on

substantially changed circumstances.

Plaintiff served a vocational expert report prepared by Dr. Lynn Levine.

In Dr. Levine's opinion, plaintiff attempted employment in his prior field, and

he was working up to his earning capacity—$98,000 to $100,000 per year.

Defendant did not serve a rebuttal vocational report. Plenary hearing dates were

scheduled for June and July 2021.

On April 19, 2021, plaintiff filed another motion seeking to re-open the

parties' MSA pursuant to Rule 4:50-1(f) and to terminate his alimony obligations

based on his claim that defendant defrauded him out of $19,000,6 which he

alleged she concealed at the time of the divorce. According to plaintiff, he was

"recently" provided information from the parties' daughter and defendant's

sister, who certified defendant gave her cash after grocery shopping to

surreptitiously deposit into the sister's account. Defendant opposed the motion

and filed a notice of cross-motion for summary judgment seeking to deny

plaintiff's motion in its entirety.

Since discovery had been completed, the second judge expressed that a

plenary hearing might be unnecessary if both counsel agreed that the pending

6

The record also shows the amount was as high as $38,509.83.

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11

motions could be decided on the papers. The parties dispute what occurred on

this issue. On appeal, plaintiff's counsel contends his client did not waive the

plenary hearing as to all issues and all motions. Defendant's counsel does not

challenge the judge's suggestion to decide the motions on the papers without

conducting a plenary hearing. In any event, written submissions were provided

to the second judge in June 2021 addressing all pending motions, and no plenary

hearing was conducted.

In his written statement of reasons, the second judge determined that

"although the [first judge] has already found that Article II, paragraph 5 of the

parties' MSA was on its face ambiguous, as set forth above, the evidence in the

motion record provided an appropriate basis for the court to make

determinations on the substantive issues presented on the parties' motions." The

judge noted Article II, paragraph 5 states plaintiff's alimony obligation "shall

continue and will not be terminated absent the occurrence of any of the events

specified by the parties" in the MSA. In light of his interpretation, the judge

denied plaintiff's motion to terminate his alimony obligation based upon his

unemployment and substantially reduced financial circumstances.

But, the judge recognized plaintiff's motion to modify alimony was

"somewhat less straightforward." During the discovery phase of the case, the

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judge considered the "probative evidence of the parties' intentions" on the

alimony modification issue stemmed from "revisions to the MSA exchanged

between [former] counsel." The judge reviewed the drafts to the MSA provided

in discovery and concluded the evolution of the MSA drafts reflected the parties

contemplated language that would have enabled plaintiff to seek a modification

of his alimony obligation based upon changed circumstances, but "the parties

agreed to omit that provision" from the MSA. The judge concluded modification

of the agreed upon spousal support was solely limited to "retirement or

disability."

The judge acknowledged the MSA did not contain an express anti-Lepis

clause and found Article II, paragraph 5 "was intended to be exhaustive" as to

plaintiff's ability to "renegotiate" his alimony obligation. The judge

acknowledged the "ambiguity" in the wording of the MSA, but nevertheless

determined that Article II, paragraph 5 precludes plaintiff from seeking to

modify his alimony obligation on the basis of unemployment and reduced

income. Citing Rule 4:46-2(c), the judge granted defendant's cross-motion for

summary judgment, finding Article II, paragraph 5 was "on its face ambiguous,"

but found "the evidence in the motion record provided a basis for him to

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determine the substantive issues," ordered plaintiff to resume paying $85,000

per year in alimony, and determined arrears were $175,382.7

Regarding plaintiff's Rule 4:50-1(f) motion to re-open the MSA, the judge

emphasized plaintiff sought to set aside an MSA "over sixteen years later" based

on defendant's sister's statement without any corroborating evidence to support

her allegations. Given the "composition of the marital estate," the judge was

unpersuaded that plaintiff's alimony obligation would have been different. The

judge denied the Rule 4:50-1(f) motion without prejudice. This ruling is not

challenged on appeal.

On the issue of counsel fees, the judge denied plaintiff's request without

prejudice and granted defendant's request in part. The judge awarded defendant

$51,823.50—one-half the amount she requested—after considering the parties'

financial conditions, the results obtained, and the enforcement nature of the

proceedings. Memorializing orders were entered. This appeal ensued.

Plaintiff presents the following arguments for our consideration:

(1) the second judge improvidently set aside the law of

the case established by the first judge without

applicable facts;

7

On May 4, 2022, the judge entered a uniform support order indicating arrears

to be $240,824.47.

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(2) a plenary hearing was required because the intent of

the parties is the main issue;

(3) plaintiff's request to modify or terminate alimony

was grounded in equity and fairness; and

(4) defendant has unclean hands.

II.

The decision of the Family Part judge to modify alimony is reviewed

under an abuse of discretion standard. Larbig v. Larbig, 384 N.J. Super. 17, 21

(App. Div. 2006). "Whether an alimony obligation should be modified based

upon a claim of changed circumstances rests within a Family Part judge's sound

discretion." Ibid. Each individual motion for modification is particularized to

the facts of that case, and "the appellate court must give due recognition to the

wide discretion which our law rightly affords to the trial judges who deal with

these matters." Ibid. (quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)).

As such, the appellate court may not disturb the Family Part's decision on

alimony unless it concludes that the Family Part "clearly abused its discretion,

failed to consider all of the controlling legal principles, or must otherwise be

well satisfied that the findings were mistaken or that the determination could not

reasonably have been reached on sufficient credible evidence present in t he

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record after considering the proofs as a whole." Heinl v. Heinl, 287 N.J. Super.

337, 345 (App. Div. 1996).

The same standard of review applies to a Family Part's determination

regarding the need for a plenary hearing. Costa v. Costa, 440 N.J. Super. 1, 4

(App. Div. 2015). Conversely, "all legal issues are reviewed de novo." Ricci v.

Ricci, 448 N.J. Super. 546, 565 (App. Div. 2017). We review de novo questions

of law. Amzler v. Amzler, 463 N.J. Super. 187, 197 (App. Div. 2020). The

"interpretation and construction of a contract is a matter of law for the court

subject to de novo review." Steele v. Steele, 467 N.J. Super. 414, 440 (App.

Div. 2021) (quoting Fastenberg v. Prudential Ins. Co. of Am., 309 N.J. Super.

415, 420 (App. Div. 1998)).

"Alimony is an 'economic right that arises out of the marital relationship

and provides the dependent spouse with "a level of support and standard of

living generally commensurate with the quality of economic life that existed

during the marriage."'" Quinn v. Quinn, 225 N.J. 34, 48 (2016) (quoting Mani

v. Mani, 183 N.J. 70, 80 (2005)). Alimony is generally set based on the mar ital

standard of living and contemplates the "continued maintenance at the standard

of living [the dependent spouse] had become accustomed to prior to the

separation." Lepis, 83 N.J. at 150 (quoting Khalaf v. Khalaf, 58 N.J. 63, 69

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(1971)). Alimony "may be revised and altered by the court from time to time as

circumstances may require" pre- and post-judgment. N.J.S.A. 2A:34-23.

Plaintiff argues because the first judge found Article II, paragraph 5 of the

MSA was ambiguous and that he made a prima facie showing of changed

circumstances, the second judge was bound under the law-of-the-case doctrine

to conduct a plenary hearing, which was ordered by the first judge. And, in any

event, a plenary hearing is necessary based on the parties' competing

certifications. We agree.

The law-of-the-case doctrine "is a non-binding rule intended to 'prevent

relitigation of a previously resolved issue.'" State v. K.P.S., 221 N.J. 266, 276

(2015). The rule acts to preclude a court from re-examining an issue already

decided by the same court in the same case. Ibid. While the doctrine is

discretionary, it does call on the court to balance the value of judicial deference

against factors that bear on the search for truth and the pursuit of justice. Ibid.

Prior decisions should be followed unless "there is substantially different

evidence at a subsequent trial, new controlling authority, or the view expressed

previously was clearly erroneous." Daniel v. State, Dept. of Transp., 239 N.J.

Super. 563, 582 (App. Div. 1990).

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To modify an alimony obligation, a movant has the burden of

demonstrating a prima facie case of changed circumstances before the court

orders discovery, full financial disclosure, or a plenary hearing. Lepis, 83 N.J.

at 157-59. The Lepis Court determined that alimony and support orders only

represent the present obligations of the former spouses, and those obligations

"are always subject to review and modification on a showing of changed

circumstances."

The Court then listed multiple examples of sufficient changed

circumstances that warrant modification: (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

tax law. Id. at 151.

The party seeking modification must make a prima facie showing of

changed circumstances that warrant modification. Id. at 157. After a showing

has been made, the court must determine how much to modify the alimony or

support obligation. Id. at 157-58. A court may need to hold a hearing before

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modifying support if it determines there are any material facts in dispute. Id. at

159. Here, the parties' MSA did not contain an anti-Lepis clause.

"When [a] movant is seeking modification of an alimony award, that party

must demonstrate that changed circumstances have substantially impaired the

ability to support himself or herself." Id. at 157. There are a number of changed

circumstances that may warrant a modification of an alimony obligation, such

as "an increase or decrease in the income of the supporting or supported spouse."

Quinn, 225 N.J. at 49 (quoting J.B. v. W.B., 215 N.J. 305, 327 (2013)).

A moving party "may make a prima facie showing of changed

circumstances . . . by citing a combination of changes . . . of both parties[,] which

together have altered the status quo [that] existed at the time of the entry of the

support order under review." Donnelly v. Donnelly, 405 N.J. Super. 117, 131

(App. Div. 2009) (quoting Stamberg v. Stamberg, 302 N.J. Super. 35, 42 (App.

Div. 1997)). "[T]he changed-circumstances determination must be made by

comparing the parties' financial circumstances at the time the motion for relief

is made with the circumstances which formed the basis for the last order fixing

support obligations." Beck v. Beck, 239 N.J. Super. 183, 190 (App. Div. 1990).

Here, plaintiff established a prima facie case of changed circumstances.

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However, courts acknowledge that income earned through employment

"is not the only measure of the supporting spouse's ability to pay that should be

considered by a court." Miller v. Miller, 160 N.J. 408, 420 (1999). Courts can

and should also consider other factors, including "[r]eal property, capital assets,

investment portfolio[s], and capacity to earn by 'diligent attention to . . .

business.'" Id. at 420-21 (third alteration in original) (quoting Innes v. Innes,

117 N.J. 496, 503 (1990)).

Plaintiff claims the second judge should have followed the first judge's

order for a plenary hearing to be conducted to determine the parties' intent on

the issue of alimony when the MSA was negotiated and executed to resolve

ambiguities inherent in the MSA. The discovery exchanged and written

deposition questions and answers provided by the parties' former attorneys

illuminate there is a genuine issue of material fact as to whether plaintiff waived

his right to seek a modification or termination of his alimony obligation.

Moreover, plaintiff's prior counsel represented that the final version of the MSA

contained an anti-Lepis clause only as to defendant and not plaintiff. 8 And, the

8

A parties' settlement agreement or subsequent consent order may reasonably

limit the circumstances that may qualify as "changed" by including an anti-Lepis

clause. See Quinn, 225 N.J. at 49-50. Anti-Lepis clauses are subject to

enforcement where the parties "with full knowledge of all present and

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MSA contains language barring defendant from seeking a modification of

alimony but no reciprocal language is found in the MSA regarding plaintiff's

ability to modify his alimony obligation other than the two circumstances

delineated in Article II, paragraph 5—retirement and physical or mental

disability. This is an inherent ambiguity and inconsistency in the MSA, which

requires a plenary hearing.

A plenary hearing should be ordered "where the affidavits show that there

is a genuine issue of material fact." Murphy v. Murphy, 313 N.J. Super. 575,

58 (App. Div. 1998). A dispute of material fact is one that "bear[s] directly on

the legal conclusions required to be made and [such] disputes can only be

resolved through a plenary hearing." Spangenburg v. Kolakowski, 442 N.J.

Super. 529, 540-41 (App. Div. 2015).

Plaintiff points out conflicting material facts that "bear directly on the

legal conclusions required to be made." Ibid. For example, Article V, paragraph

reasonably foreseeable future circumstances bargain[ed] for a fixed payment or

establish[ed] the criteria for payment[,] ... irrespective of circumstances that in

the usual case would give rise to Lepis modifications of their agreement."

Morris v. Morris, 263 N.J. Super. 237, 241 (App. Div. 1993). The Family Part

will not unnecessarily or lightly disturb such arrangements if the arrangements

are "fair and definitive." Quinn, 225 N.J. at 44 (quoting Konzelman v.

Konzelman, 158 N.J. 185, 193-94 (1999)).

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1 established that plaintiff's obligation to maintain life insurance is "subject to

modification when alimony is received," which he contends implies

modification would be open-ended and reviewable as this particular provision

has no precondition limiting when alimony could be revisited. Plaintiff also

contends Article XI, paragraph 1 states that "other than upon a showing of

substantially changed circumstances, neither party [. . .] shall seek alimony or

support contrary to the provisions of this Agreement." Thus, the parties

arguably intended for the "substantial change of circumstances" test to apply to

both of them in the context of their alimony agreement, warranting a plenary

hearing.

In addition, Article II, paragraph 5 provides that payments may be

"renegotiated" based on plaintiff's retirement or disability but does not address

when or if he could seek a "modification" or "termination" of his alimony and

related obligations. One implication of this omission is it was intentional. The

drafters chose to mention one circumstance specifically, but not the other, which

just as logically could have been mentioned. See e.g., In re Estate of Santolino,

384 N.J. Super. 567, 581 (Ch. Div. 2005) (applying the principle of inclusion

unius est exclusion alterius, which means the inclusion of one excludes the

other). This provision of the MSA does not explicitly identify that plaintiff's

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alimony obligation is non-modifiable in the event of his changed financial

circumstances or mention an express waiver of the modification rights granted

by Lepis, 263 N.J. Super. at 240. Acceptance of the second judge's

interpretation requires an overall application of Article II, paragraph 5 to all

other alimony and alimony related provisions in the MSA, rather than simply

limiting its application to the two conditions set forth in Article II, paragraph 5.

For these reasons, we conclude the law-of-the-case doctrine is applicable

here, and we independently hold a plenary hearing is necessary even in the

absence of the law-of-the-case doctrine to discern whether the parties exercised

an informed waiver of the right to modify the amount of alimony. Not only are

the parties' certifications at odds on the scope of waiver, but so are

representations made on this issue by their prior attorneys who negotiated the

MSA. The actual testimony of the parties, their former attorneys, and any other

witnesses subject to cross-examination would ferret out the parties'

understanding and intention. See 5 Wigmore, Evidence, § 1367 at 32

(Chadbourne ed. 1974) ("cross-examination is beyond any doubt the greatest

legal engine ever invented for the discovery of truth.").

We remain mindful that plaintiff bears the burden of proving the parties'

intent. Pacifico, 190 N.J. at 269. Further, if following the plenary hearing, the

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judge concludes modification of the amount of alimony was not barred by the

MSA, there remains a need to evaluate the parties' respective needs and abilities

to pay prior to determining whether modification is warranted. Lepis, 83 N.J.

at 152. Even if the MSA provisions are found to preclude modification, the

judge must analyze whether, under the circumstances presented, enforcement

remains reasonable. Morris, 263 N.J. Super. at 245.

In light of our decision, we see no reason to address plaintiff's additional

arguments. Accordingly, we reverse the April 21, 2022 order, vacate the counsel

fee award, and remand for a plenary hearing consistent with the reasons

expressed in our opinion.

Reversed, vacated, and remanded. We do not retain jurisdiction.

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