SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO . A

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NANCY HYLEMON,

Plaintiff

- Appellant,

v.

MICHAEL J. HYLEMON,

Defendant

- Respondent.

________________________

Argued October 5, 2021

– Decided October 26, 2021

Before Judges Fisher and Smith.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Middlesex County,

Docket No. FM

- 12

- 0 6 7 7

- 16.

Dale E. Console argued the cause for appellant.

Marisa Lepore Hovanec argued the cause for

respondent (Gomperts Penza McDermont & Von Ellen,

LLC, attorneys; Marisa Lepore Hovanec, of coun sel

and on the brief).

PER CURIAM NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

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After a plenary hearing, plaintiff Nancy Hylemon, appeals an order for

post

- judgment modification reducing alimony she received from the defendant,

Michael Hylemon, from $500 per week to $400 per week. For the reasons s et

forth below, we reverse.

I.

The parties were married in 1999 and divorced in 2016. The final

judgment of divorce incorporated a Property Settlement Agreement (PSA) under

which defendant was obligated to pay plaintiff $500 per week in spousal support

f or a period of fifteen years. The PSA did not establish a standard of living for

the parties. At the FJOD hearing, both parties acknowledged on the record that

they entered the PSA willingly and understood that, under the terms of the PSA,

they "may not be able to maintain the same standard of living . . ." as during the

marriage.

In July 2019 defendant filed a motion to modify his alimony payment. He

argued that plaintiff, who was unemployed at the time of divorce, had since

obtained work, establishin g a prima facie case of changed circumstances

warranting a review of the alimony obligation. At the motion hearing, the trial

judge determined that plaintiff's change in employment was a contested factual

issue and scheduled a plenary hearing . Additionally, the trial judge granted3 A

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defendant's request for plaintiff to provide an updated Case Information

Statement (CIS) and all recent paystubs. The plenary hearing took place on

December 24, 2019, as well as January 28 and February 11, 2020.

At the plenary hearing , defendant testified that plaintiff worked part

- time

during the marriage but was not working when the final judgement of divorce

was entered. He testified to the differences between his CIS at the time of the

divorce and his current CIS, asserting that during the marriage he was

responsible for paying all of the bills and sometimes transferred funds from

retirement accounts to "stay out of the red."

Defendant testified that his expenses increased after the marriage. He

provided two main reasons for this increase: he incurred a mortgage and he

testified that he "forgot" to include certain expenses in his original CIS. He

admitted on cross

- examination that he neglected to include several accounts and

assets on his CIS, such as his pension and annuity accounts, his inherited IRA,

and his motorcycle. Defendant also acknowledged that he did not reduce his

expenses after the marriage, admitting that his c redit card spending had

remained the same. Defendant testified that due to his alimony obligation, he

cannot pay his current expenses with his income alone; therefore, he uses

savings and credit cards to cover the shortfalls.4 A

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The plaintiff testified abo ut her employment history from before and after

the divorce. She explained she was unable work for several months due to back

surgery and used funds from the divorce settlement to cover her costs of living

during this time. She also used a portion of her settlement to purchase and

renovate an old mobile home. She pays $625 per month to rent a mobile home

lot. She testified that she spends $125 to $150 per week on food, $75 per month

on prescription medications, and has $729 in monthly credit card paymen ts.

Plaintiff's position at the hearing was that her standard of living is below

the standard she enjoyed while married. She was unable to provide her CIS from

the time of divorce, but she asserted that defendant's CIS reflects the marital

bills because he managed the money during the marriage. Plaintiff also testified

extensively about her bank account deposits and withdrawals in the years

between the divorce and the plenary hearing.

Plaintiff's counsel testified about the factors that went into the negotiation

and completion of the 2016 PSA, but she advised the trial court that she could

not locate plaintiff's CIS. The factors included, but were not limited to: the

fifteen

- year alimony duration, plaintiff's work potential, her medical issues, her

ag e at the time of divorce, her employment skills, and her education level.

According to counsel, this information facilitated the alimony calculation.5 A

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Counsel testified that the parties, in her view, felt comfortable settling in

2016 because they had acc ount statements, credit card statements, and answers

to interrogatories. Moreover, she testified that plaintiff was never adjudicated

disabled so " she ha[d] an obligation to contribute . . ." and, in agreeing to $500

per week, the parties understood that plaintiff was "going to have to get a full

time job with benefits."

After the close of the plenary hearing , the trial court found all three

witnesses credible, and made findings. On March 13, 2020, the court issued an

order modifying defendant's alimony payment downward and placed an oral

statement of reasons on the record.

On changed circumstances, the court found that "[a]t the time of the

divorce [plaintiff] was working part

- time, . . . [and] [i]s now employed on a full

time basis." Because of this, the trial court concluded that defendant "met his

burden of demonstrating a change in circumstances . . . [because] plaintiff's full

time employment status is a change in circumstances . . . [t]hat change [being]

increased income of the plaintiff."

Next the court evaluated the standard of living of the parties to see if a

modification was warranted. It explained that the standard of living experienced6 A

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during the marriage is the "touchstone for . . . adjudicating . . . modification of

. . . alimony award [s] when changed circumstances are asserted."

Despite finding plaintiff's testimony credible and honest, the judge

concluded that plaintiff's proofs about her past and present lifestyle fell short.

Specifically, the judge found plaintiff "did not provid e relevant testimony as to

her current standard of living." Additionally, her testimony on the standard of

living during the marriage was "limited at best." By contrast, the court noted

defendant had "provide[d] testimony to the standard of living enjoye d by the

parties during the marriage . . ." and had "testified to his current standard of

living . . . ."

The trial court made findings to establish the standard of living because it

was not established in the PSA. Based on the evidence before it, the cou rt found

$3,974 attributable to the monthly marital lifestyle, $3,408 to plaintiff's current

lifestyle, and $6,557 to defendant's current lifestyle. The trial court also found

that the parties' "monthly marital lifestyle [of] $3,974

. . . was fueled in part by

credit card debt

. . . ." It also noted that the joint annual pre

- tax income of the

parties while married was approximately $100,000.7 A

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The court concluded that a decrease in alimony was warranted to

"provide[] a measure of relief to the defendant ," and reduced defendant's

obligation to $400 per week.

On appeal, plaintiff argues that:

THE TRIAL JUDGE'S FINDINGS OF FACT DO NOT

COMPORT WITH THE TESTIMONY ON THE

RECORD AND THE LEGAL CONCLUSIONS

DRAWN THEREFROM ARE INCONSISTENT WITH

THE LAW AND RESUL T IN MANIFEST

INJUSTICE.

I I.

The trial court has "broad discretion" in reviewing an application to

modify alimony. Storey v. Storey

, 373 N.J. Super. 464, 470 (App. Div. 2004)

(citing N.J.S.A. 2A:34

- 23). The decision of a family court to modify alimony

is reviewed under an abuse of discretion standard. Larbig v. Larbig

, 384 N.J.

Super. 17, 23 (App. Div. 2006). A reversal is only war ranted if the decision was

inconsistent with controlling legal principles or the evidence before the court.

Bermeo v. Bermeo

, 457 N.J. Super 77, 84 (App. Div. 2018) (citation omitted).

An alimony order is "always subject to review

. . . on a showing of

'changed circumstances.'" Crews v. Crews

, 164 N.J. 11, 28 (2000) (quoting

Lepis v. Lepis

, 83 N.J. 139, 146 (1980)). Changed circumstances permitting a

modification of alimony include "an increase or decrease in the income of the8 A

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supporting or supported s pouse ," Quinn v. Quinn , 225 N.J. 34, 49 (quoting J.B.

v. W.B. , 215 N.J. 305, 327 (2013)), or the subsequent employment of the

dependent spouse

, Lepis , 83 N.J. at 151.

When a party moves for modification, the trial court undertakes a two

step inquiry. Should the court determine a modification of support is warranted

after performing both steps, then the new amount is set according to the criteria

of N.J.S.A. 2A:34

- 23(b). The first step determines whether "a prima facie

showing of changed circ umstances

. . ." has been made. Miller v. Miller

, 160

N.J. 408, 420 (1999) (citing Lepis

, 83 N.J. at 157

- 59). The second step of the

analysis evaluates whether the change is so significant it renders "enforcement

of the [existing] agreement inequitable. . ." and entails a modification of support.

Glass v. Glass , 366 N.J. Super. 357, 379 (App. Div. 2004).

An increase in the dependent spouse's income is a potential "changed

circumstance" that may result in a modification. See Lepis

, 83 N.J. at 151

(indicating that post

- divorce employment by previously unemployed dependent

spouse would constitute changed cir cumstances). See also Beck v. Beck

, 239

N.J. Super. 183, 190 (App. Div. 1990) (finding prima facie case of changed

circumstances based in part on dependent spouse's change from unemployed to

wage earner). Often, parties will provide for such a change in the terms of the9 A

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settlement agreement. However, if the agreement is silent as to change and the

modification motion is based on the improvement of one party's finances, the

analysis of whether a modification is warranted includes an assessment of

whether the agreement remains fair and equitable, given the parties' expectations

and understandings at the time they entered into it. Glass

, 366 N.J. Super. at

376.

In Glass

, the dependent spouse, who had remained unemployed during an

11

- year marriage, began working shortly after the divorce and was earning over

$50,000 per year at the time of the motion. Id. at 365

- 66. She had accumulated

more than $100,000 in savings and lived in a house that was comparable to the

one the parties shared during the marriage. Id. at 367. The court found that the

settlement agreement remained fair and equitable and that the change in

circumstances was not significant enough to override the parties' existing

alimony arrangement and did not warrant a modification. Id. at 378

- 79.

The standard of living while married is the "touchstone" of this second

inquiry. Crews

, 164 N.J. at 16. If the marital standard was not established at

the time of the original judgment, the court addressing modification must make

that determination. See Glass

, 366 N.J. Super. at 370

- 71. This "touchstone" is

critical because comparing the parties' financial condition while married to their10 A

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present circumstances pe rmits the court to assess whether the change warrants

modification. Lepis

, 83 N.J. at 157

- 58. A decrease in alimony is called for

when the change in circumstance renders the support received by the dependent

spouse "unnecessary" to maintain the standard of living established in the

original agreement. Id. at 153.

III.

The trial court found that plaintiff's recent transition from a part

- time

employee while married to full

- time employee at a local clothing store

represented an increase in income which constituted a change in circumstance.

After addressing step one, the c ourt turned to "whether that change in

circumstance warrants a downward modification in Mr. Hylemon's alimony

payments, and if so, how much."

Because the Hylemons' PSA did not establish a standard of living, the trial

court made the determination. The t rial court found plaintiff's monthly expenses

amounted to $3,408. In making this finding the court noted that plaintiff's

"current standard of living is

. . . lower than the marital standard of living

. . . "

and her modest monthly income of $1,679 "falls well short of her expenses" so

the "negotiated alimony helps

. . . fill the void." As for the defendant, the court

found his current monthly expenses to be $6,557 and determined that "[b]ut for11 A

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th[e] alimony obligation [defendant's] monthly expenses are similar to his

marital lifestyle." A fter evaluating the alimony factors set forth in N.J.S.A.

2A:34

- 23(b), the trial court ordered the reduction of alimony by one

- hundred

dollars per week. Based on the record before us, we disagree. The record shows

pla intiff is unable to live in a financially equivalent manner to the standard of

living established during the parties' marriage, even with her present income and

support payments. Plaintiff's increase in income is not the "significant" increase

envisioned in Glass that would justify a downward modification of the

agreement, even when accounting for the reasonable expectations of the parties.

See Glass

, 366 N.J. Super. at 379, 376.

An application to modify an agreement is an exception,

not the rule. Judges and litigants alike contemplate that

agreements entered into in good faith containing

provisions such as . . . alimony shall be performed in

accordance with their terms. The exception is that

circumstances will arise that make enforcement of the

ag reement inequitable. These circumstances do not

include a supported spouse earning a modest sum of

money that will allow her to save for her future.

[ Id. at 379 (emphasis added).]

The trial court reduced plaintiff's alimony while simultaneously findin g

that she currently lives below the marital standard, even with her transition to

full

- time work. The court's decision was inconsistent with the evidence and the12 A

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controlling principles in Glass

. See Bermeo , 457 N.J. Super. at 84. The one

hundred dollar per week reduction in alimony cannot be supported on this

record.

The judgment is reversed, and the trial court's post

- judgment modification

order is vacated. The alimony of $500 per week set forth in the 2016 PSA is

reinstated retroactive to the date of the trial court's modification order. We

remand to the trial court for it to determine, in its sound discretion, the award of

attorney's fees.

Reversed and remanded. We do not retain jurisdiction.