NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2655-14T1

DEBORAH SPANGENBERG,

Plaintiff-Respondent,

v.

DAVID KOLAKOWSKI,

Defendant-Appellant.

_______________________________

Submitted September 21, 2015 - Decided 

Before Judges Lihotz, Fasciale and Nugent.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Morris 

County, Docket No. FM-14-976-10.

David Kolakowski, appellant pro se.

Deborah Spangenberg, respondent pro se.

The opinion of the court was delivered by

LIHOTZ, P.J.A.D.

Defendant David Kolakowski appeals from a September 19, 

2014 Family Part order denying his motion to terminate or

suspend his obligation to pay alimony to his former wife, 

plaintiff Deborah Spangenberg. Defendant maintains plaintiff's

cohabitation, combined with his decreased earnings, require

termination of alimony under newly enacted subsection (n),

APPROVED FOR PUBLICATION

October 14, 2015

APPELLATE DIVISION

October 14, 2015
2 A-2655-14T1

amending N.J.S.A. 2A:34-23. Defendant also moved to recalculate 

child support and the parties' obligation for college costs.

Finally, defendant appeals from the November 7, 2014 order 

denying reconsideration. 

We have considered the arguments in light of the record and 

applicable law. We reject defendant's argument to apply 

N.J.S.A. 2A:34-23(n) as the statutory provisions are 

inapplicable to post-judgment orders finalized before the 

statute's effective date. However, we agree a plenary hearing 

is necessary to determine whether a substantial change in 

economic circumstances warrants a modification of alimony and 

child support.

The essential facts are not disputed. The parties were 

divorced in June 2012, twenty years after they married. All 

collateral issues were resolved and set forth in a marital 

settlement agreement (MSA) incorporated into the final judgment 

of divorce (FJOD). 

Specific to the issues on appeal, the MSA at paragraph 16

provided defendant's agreement to pay $2200 per month alimony, 

calculated using imputed annual incomes for plaintiff of $45,000 

and defendant of $125,000. The parties agreed the alimony 

amount would be reviewed "on or about June 7, 2014," based on 

the "expectation that the [plaintiff]'s income will have 
3 A-2655-14T1

increased by that time as a result of additional training or 

other factors." Toward this objective, the parties consented to 

exchange income information including "their 2013 tax returns, 

W-2s, K-1 from [defendant's business] and other supporting 

documents, and their current paystubs, no later than June 1, 

2014." Further, plaintiff agreed to inform defendant "when she 

[wa]s cohabiting with another," which triggered a review of 

alimony "consistent with the Gayet1 case and evolving caselaw 

[sic]." 

Regarding child support, paragraph 7 included the parties' 

agreement for defendant to contribute $122 per week to support 

the parties' two children. Anticipating future events, the 

parties' MSA set forth specific modified support amounts, using 

the child support guidelines and a "blended rate" of support in 

anticipation of college attendance and emancipation. These 

included: if one child was living at college and one was living 

with plaintiff and both were unemancipated, weekly child support 

would be $91; if one child was emancipated and the other was 

living at home, child support would be $78; and if one child was 

emancipated and the other was living at college, the weekly 

child support would be $52. 

 

1 Gayet v. Gayet, 92 N.J. 149, 155 (1983) (addressing the 

impact of cohabitation on alimony).
4 A-2655-14T1

Paragraph 13 addressed college expenses, stating: 

The parties agree that, at the present time, 

neither party has the ability to pay for 

college for the children . . . . In the 

event that the parties' circumstances 

change, they shall revisit the issue of 

college contribution with a view toward a 

contribution proportionate to their 

respective financial circumstances. 

However, neither party shall be called upon 

to contribute to college if that party has 

not been consulted with regard to the cost 

of same and the selection of college.

 

Defendant moved to modify his alimony obligation, alleging 

plaintiff was cohabiting. Also, he sought to reduce child 

support because the parties' oldest child was residing with him. 

Plaintiff admitted she moved to her boyfriend's residence on 

August 31, 2013. She objected to a reduction in child support 

because the older child resumed living with her and the younger

child was attending college in Washington, D.C. 

The Family Part judge considered "the parties 

submissions[,] as well as their testimony" and the testimony of 

plaintiff's boyfriend.2 As reflected in the statement of reasons 

accompanying the December 18, 2013 order, the judge found 

plaintiff received an economic benefit from cohabitation, 

warranting modification of alimony. He found plaintiff's actual 

income was higher and defendant's was lower than the amounts set 

 

2 The hearing transcripts are not included in the record.
5 A-2655-14T1

forth in the MSA; however, when he calculated alimony and child 

support, the judge used the MSA's imputed income figures. 

Defendant was ordered to pay $1350 per month alimony and $339 

per week child support, until the older child commenced the 

spring 2014 semester in mid-January 2014, at which time child 

support would decrease to $150 per week.

3 

Defendant's motion for reconsideration seeking to review 

plaintiff's need for alimony was denied on March 26, 2014. 

Finding defendant's request "premature," the judge concluded 

"review shall take place in June of 2014." Reconsideration of 

that order was also denied.

On July 21, 2014, defendant moved to modify or terminate

alimony, as provided by the MSA's two-year review provision. He 

sought enforcement of prior orders, application of the MSA 

provisions, emancipation of the older child, and a concomitant 

recalculation of child support. Plaintiff cross-moved for 

enforcement of litigant's rights because defendant stopped 

paying alimony. 

The Family Part judge did not entertain oral argument prior 

to filing the September 19, 2014 order under review. Relying on 

 

3 The order included various computations resulting in 

credits to the parties. As is the case with this and the other 

orders under review, these computations for credits are 

indirectly subject to appeal to the extent they relate to 

alimony and child support calculations modified by our opinion. 
6 A-2655-14T1

the reduction in alimony ordered upon a finding of plaintiff's 

cohabitation and stating defendant's asserted reduction in 

income was "surely not a permanent situation," the judge denied 

further modification, despite plaintiff's "slight increase" in 

earned income. Without elaborating, the judge found 

"[d]efendant has 'chosen' not to divulge his financial 

documentation" and "[p]laintiff has graciously consented to 

emancipate [the older child]." Accordingly, using the MSA's

imputed level for defendant and plaintiff's "actual" income, 

child support for the younger child was reset at $99 per week

and defendant was ordered to pay 59% of the child's college 

expenses. 

Defendant's subsequent motion for reconsideration of these 

determinations resulted in the November 7, 2014 order, which 

denied his requests to reduce alimony, child support, and 

college costs. In the accompanying statement of reasons, the 

judge found "[d]efendant produced page 1 of his 2012 tax return 

and pages 1 and 2 of his 2013 tax return. No W-2[]s, K-1[]s, 

1099[]s [or] tax schedules were produced," nor did he supply the 

income tax return for his sub-chapter S corporation. The judge 

concluded: "Defendant continues to focus on the calculation of 

his income[,] but has failed and/or refused to present his 

complete financial picture. Self-employed individuals are 
7 A-2655-14T1

always subject to more scrutiny when it comes to their 

finances." Acknowledging income averaging may be appropriate 

when determining the earnings of self-employed individuals for 

support purposes, the judge nonetheless, declined to do so 

because defendant "failed to provide sufficient financial 

documentation." This appeal ensued.4 

When reviewing a trial judge's order, we defer to factual 

findings "supported by adequate, substantial, credible 

evidence." Gnall v. Gnall, __ N.J. __ (2015) (slip op. at 14)

(citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). 

Reversal is warranted only when a mistake must have been made 

because the trial court's factual findings are "'so manifestly 

unsupported by or inconsistent with the competent, relevant and 

reasonably credible evidence as to offend the interests of 

justice . . . .'" Rova Farms Resort, Inc. v. Investors Ins. Co. 

of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of 

N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 

40 N.J. 221 (1963)). On the other hand, a "trial judge's legal 

conclusions, and the application of those conclusions to the 

 

4 On May 12, 2015, plaintiff filed a Family Part case 

information statement with accompanying financial documentation, 

with her merits brief. Certainly the facts set forth in these 

documents are relevant; however, because this information was 

not presented in the motions before the Family Part, we will not 

consider it in our review. 
8 A-2655-14T1

facts, are subject to our plenary review." Reese v. Weis, 430 

N.J. Super. 552, 568 (App. Div. 2013).

Defendant maintains the judge abused his discretion in 

ignoring the terms of the MSA when denying his request to modify 

alimony and child support despite evidence of changed 

circumstances. Further, he argues the judge erroneously imposed 

college expense obligations using an artificially high imputed 

income. Arguing he should have been granted a plenary hearing

on these issues, defendant also asserts adopted amendments to 

the alimony statute addressing cohabitation were ignored. 

Finally, he asserts the determinations regarding the inadequacy 

of his financial disclosures and plaintiff's continued need for 

support were unfounded. 

The Family Part judge's authority to modify alimony and 

support orders is found in N.J.S.A. 2A:34-23, which states: 

Pending any matrimonial action . . . brought 

in this State or elsewhere, or after 

judgment of divorce . . . the court may make 

such order as to the alimony or maintenance 

of the parties, and also as to the care, 

custody, education and maintenance of the 

children, . . . as the circumstances of the 

parties and the nature of the case shall 

render fit, reasonable and just . . . . 

Orders so made may be revised and altered by 

the court from time to time as circumstances 

may require.

Our courts have interpreted this statute to require a party 

who seeks modification to prove "changed circumstances[.]" 
9 A-2655-14T1

Lepis v. Lepis, 83 N.J. 139, 157 (1980) (citation omitted). 

Other circumstances considered include "whether the change in 

circumstance is continuing and whether [an] agreement or decree 

has made explicit provision for the change." Id. at 152. 

Accordingly, each and every motion to modify support "rests upon 

its own particular footing 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." 

Martindell v. Martindell, 21 N.J. 341, 355 (1956). See also

Innes v. Innes, 117 N.J. 496, 504 (1990) ("The modification of 

alimony is best left to the sound discretion of the trial 

court."). While an "abuse of discretion . . . defies precise 

definition," we will not reverse the decision absent a finding 

the judge's decision "rested on an impermissible basis[,]" 

considered "irrelevant or inappropriate factors[,]" Flagg v. 

Essex Cnty. Prosecutor, 171 N.J. 561, 571-72 (2002) (citations 

and internal quotation marks omitted), "failed to consider 

controlling legal principles or made findings inconsistent with 

or unsupported by competent evidence." Storey v. Storey, 373 

N.J. Super. 464, 479 (App. Div. 2004). 

In Lepis, the Court described a test to discern when 

financial circumstances have significantly changed from those 

underpinning an order under review, in this way: "The supporting 
10 A-2655-14T1

spouse's obligation is mainly determined by the quality of 

economic life during the marriage, not bare survival. The needs 

of the dependent spouse and children contemplate their continued 

maintenance at the standard of living they had become accustomed 

to prior to the separation." Lepis, supra, 83 N.J. at 150 

(citations and internal quotations omitted). 

For decades this standard has guided the exercise of 

reasoned discretion of our Family Part judges. Recently, the 

Legislature adopted amendments to N.J.S.A. 2A:34-23, designed to 

more clearly quantify considerations examined when faced with a 

request to establish or modify alimony. L. 2014, c. 42, § 1. 

Apt to this matter, the amendments include provisions regarding 

modification of alimony and the effect of a dependent spouse's 

cohabitation, stating:

l. When a self-employed party seeks 

modification of alimony because of an 

involuntary reduction in income since the 

date of the order from which modification is 

sought, then that party's application for 

relief must include an analysis that sets 

forth the economic and non-economic benefits 

the party receives from the business, and 

which compares these economic and noneconomic benefits to those that were in 

existence at the time of the entry of the 

order.

m. When assessing a temporary remedy, the 

court may temporarily suspend support, or 

reduce support on terms; direct that support 

be paid in some amount from assets pending 

further proceedings; direct a periodic 

review; or enter any other order the court 
11 A-2655-14T1

finds appropriate to assure fairness and 

equity to both parties.

n. Alimony may be suspended or terminated 

if the payee cohabits with another person. 

Cohabitation involves a mutually supportive, 

intimate personal relationship in which a 

couple has undertaken duties and privileges 

that are commonly associated with marriage 

or civil union but does not necessarily 

maintain a single common household.

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

The statute also lists factors to be examined "when assessing 

whether cohabitation is occurring[.]" N.J.S.A. 2A:34-23 (n)(1) 

to (7).

Here, plaintiff conceded she began cohabiting on August 31, 

2013. Accordingly, our review is limited to whether the 

statute's cohabitation amendments, requiring alimony to be 

terminated or suspended, apply. To examine whether the 

Legislature intended N.J.S.A. 2A:34-23(n) to affect agreements 

or orders adopted prior to its enactment, we turn to rules 

guiding statutory review. 

The goal of all statutory interpretation "is 

to give effect to the intent of the 

Legislature." Aronberg[ v. Tolbert], 207 

N.J. [587,] 597 [2011]. We first look to 

the statutory language, which generally is 

the "best indicator" of the Legislature's 

intent. DiProspero v. Penn, 183 N.J. 477, 

492 (2005). Only if the language of the 

statute is shrouded in ambiguity or silence, 

and yields more than one plausible 

interpretation, do we turn to extrinsic 
12 A-2655-14T1

sources, such as legislative history. Id.

at 492-93.

[Maeker v. Ross, 219 N.J. 565, 575 (2014).] 

Courts generally will enforce newly enacted substantive statutes 

prospectively, unless the laws clearly expresses a contrary 

intent.

The amendments to N.J.S.A. 2A:34-23 themselves do not 

contain language specific as to implementation, except to 

provide the amendments are effective immediately, on September 

10, 2014. However, the bill adopting the alimony amendments

adds this provision:

This act shall take effect immediately and 

shall not be construed either to modify the 

duration of alimony ordered or agreed upon 

or other specifically bargained for 

contractual provisions that have been 

incorporated into:

a. a final judgment of divorce or 

dissolution;

b. a final order that has concluded postjudgment litigation; or

c. any enforceable written agreement 

between the parties.

[L. 2014, c. 42, § 2.]

This additional statement signals the legislative recognition of 

the need to uphold prior agreements executed or final orders 

filed before adoption of the statutory amendments. 
13 A-2655-14T1

Here, the MSA provided for a review of defendant's alimony 

obligation upon plaintiff's cohabitation. Moreover, the 

parties' agreement anticipated application of "evolving 

case[]law," recognizing their rights and obligations would be 

refined in the event of cohabitation. 

In December 2013, the court conducted such a review of the 

economic effect of plaintiff's admitted cohabitation. In light 

of the then current case law, the judge reduced alimony based on 

the economic benefit received by the dependent spouse. Reese, 

supra, 430 N.J. Super. at 570-71. He determined plaintiff 

received an economic benefit from cohabiting, established 

plaintiff's monthly need at $5828, and noted plaintiff's 2013 

gross income increased more than 13.5% and defendant's actual 

2012 income decreased 8.9% from the levels imputed in the MSA. 

However, the judge concluded "the parties agreed and bargained 

for a $125,000 imputation to [d]efendant and a $45,000 

imputation to [p]laintiff as their annual incomes," which he 

used and reduced alimony from $2200 per month to $1350 per 

month. The order was not appealed, making this determination 

final.

Because the post-judgment order became final before the 

statutory amendment's effective date, the new cohabitation 

provisions do not apply or otherwise impact the alimony 
14 A-2655-14T1

determination. Accordingly, the order reducing alimony 

supported by substantial evidence in the record, to which the 

judge correctly applied the law, shall not be altered.

Defendant also challenges plaintiff's adequate need for 

alimony and his ability to pay support because of changed 

economic circumstances. When asked to consider this in the 

course of earlier motions, the judge declined because the issue 

was "not ripe[,]" interpreting the MSA to prohibit modification 

based on income reductions prior to June 7, 2014. Defendant's 

subsequent motion for a plenary hearing to determine plaintiff's 

needs and his ability to pay were denied. Each time, the judge 

reiterated alimony review would not be undertaken until June 7, 

2014. Once the trigger date passed, defendant again applied for 

relief, which again was denied.

Concerning the rejection of defendant's request for a 

plenary hearing, he argues the trial judge ignored both the need 

for imputation of additional income to plaintiff and facts 

proving significant changes in the parties' financial 

circumstances since the FJOD's entry. Instead, the judge found 

defendant's application was "not justified," and denied relief 

in the September 19, and November 17, 2014 orders. He reasoned 

the business's loss of one of two customers was "typically 

indicative of a temporary change" and defendant's alleged 
15 A-2655-14T1

decrease in income was "surely not a permanent situation." The 

judge also concluded defendant had "chosen" not to divulge his 

financial information, but did not describe the missing 

financial disclosure. Finally, the judge did not address 

defendant's claim maintaining plaintiff failed to disclose her 

income information as required by the MSA. 

We find the record does not support these findings. 

Accordingly, we reverse and remand the challenged orders.

Defendant had been claiming a business downturn and an 

inability to earn $125,000 since entry of the FJOD. Plaintiff's 

rejection of these claims based on her knowledge of how 

defendant's business worked creates a material dispute of fact, 

implicating questions of credibility. In his motion, defendant 

supplied his case information statement executed on February 10, 

2014, attached pay stubs from June 2 to June 20, 2014, his 2013 

federal Form K-1 recording distributions from his business; and 

his 2013 individual federal income tax Form 1040, with 

schedules. Plaintiff's cross-motion included her case 

information statement executed on August 12, 2014, and attached 

two pages from her 2013 individual federal income tax Form 1040, 

her 2013 W-2, and pay stubs for the period June 23, 2014 to 

August 3, 2014. In their respective motions, both parties 
16 A-2655-14T1

decried the sufficiency of the other's submission.5 Perhaps oral 

argument would have illuminated whether additional discovery was 

actually necessary. Nevertheless, we determine defendant's 

submissions satisfactorily presented a prima facie showing of a 

decrease in income. Further examination of defendant's and 

plaintiff's change in earnings should have occurred through an 

evidentiary hearing. We discern no factual support for the 

trial judge's finding that defendant's efforts to increase 

earnings and reduce expenses following customer losses could be 

assumed to be "temporary" or otherwise within his control. 

Another issue raised, but never addressed, was whether plaintiff 

complied with the expectations set forth in the MSA to enhance 

her earning capacity. The failure to consider these crucial 

elements of the parties' financial circumstances require the 

order denying review of alimony to be reversed.

The material factual disputes presented by the parties'

pleadings bear directly on the legal conclusions required to be 

made and these disputes can only be resolved through a plenary 

hearing. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 

2007) (stating a plenary hearing is necessary when the parties' 

 

5 Plaintiff's completed case information statement filed with 

this court may more comprehensively satisfy the MSA's requisites 

for disclosure. However, this was not provided to the trial 

court and the case information statement presented to and relied 

upon by the trial judge was incomplete.
17 A-2655-14T1

submissions show a genuine and substantial factual dispute). 

Importantly, "[t]he credibility of the parties' contentions may 

wither, or may be fortified, by exposure to cross-examination 

and through clarifying questions posed by the court[]" in a 

plenary hearing. Barblock v. Barblock, 383 N.J. Super. 114, 122 

(App. Div.), certif. denied, 187 N.J. 81 (2006). 

Further, the level of the parties' respective incomes bears 

directly on the amount of child support, and whether and to what 

extent they are able to contribute to college costs. Absent an 

accurate determination of the parties' incomes, the ordered 

child support and college payments are unfounded and also must 

be reversed.

6 

Accordingly, the provisions of the September 19, 2014 order 

denying defendant's motion to review alimony, fix child support,

and establish college contributions, must be vacated. The 

matter is remanded for further proceedings and a plenary 

hearing. Provisions in the November 7, 2014 order addressed to 

these same issues are also vacated. On remand, a different 

 

6 We reject defendant's challenge to the judge's disregard of 

the MSA's child support step-down provisions. The change in 

alimony, as ordered in December 2013, was sufficient to 

disregard the child support contingencies set forth in the MSA, 

because these levels of child support were not only based on the 

parties' respective imputed incomes, but also the initial level 

of alimony of $2200 per month. Once the latter was changed, the 

MSA support contingencies were no longer applicable. 
18 A-2655-14T1

Family Part judge must conduct the proceeding, as prior orders 

incorrectly drew credibility determinations. 

We add these additional comments to arguments raised by 

defendant on appeal. First, understanding defendant is the sole 

stockholder of his corporate employer, prior to conducting a 

plenary hearing regarding defendant's modification request, the 

court should conduct a case management conference to determine 

the applicability of N.J.S.A. 2A:34-23(l). As necessary, the 

judge may allow discovery. Second, absent circumstances 

permitted by law, plaintiff's boyfriend's income is not subject 

to review, except perhaps as proof of plaintiff's rental 

payments. Third, in fixing child support, the court must 

delineate the expenses determined to be covered by the support 

award. Finally, when computing college contributions, the court 

must initially determine the parties' ability to pay, 

acknowledging defendant's obligation to satisfy any ordered 

alimony and child support prior to determining his ability to 

make college contributions.

Affirmed in part, reversed in part, and remanded for a 

plenary hearing. We do not retain jurisdiction.