SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2225-20

CHRISTINE ANN HORVATH,

Plaintiff-Appellant,

v.

SCOTT E. HORVATH,

Defendant-Respondent.

___________________________

Argued May 9, 2022 – Decided July 11, 2022

Before Judges Rothstadt and Bishop-Thompson.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Mercer County, 

Docket No. FM-11-1156-07.

Andrew M. Shaw argued the cause for appellant (Shaw 

Divorce & Family Law, LLC, attorneys; Andrew M. 

Shaw, on the briefs).

Matthew B. Lun argued the cause for respondent.

PER CURIAM 

NOT FOR PUBLICATION WITHOUT THE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.
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A-2225-20

In this post-judgment dissolution matter, plaintiff Christine Ann Horvath 

appeals from the Family Part's November 6, 2020 order that was amended on 

November 19, 2020, terminating defendant Scott E. Horvath's alimony 

obligation and modifying his child support obligation, which were established 

in the parties' February 14, 2007 Dual Judgment of Divorce (DJOD). She also 

challenges a March 16, 2021 order, granting in part and denying in part her 

motion to reconsider, and an April 13, 2021 order, fixing the amount of a credit 

owed to defendant that was to be applied to his future child support obligations.

On appeal, plaintiff argues the motion judge misapplied the law and her 

findings were not supported by sufficient evidence. As to alimony, plaintiff 

contends the judge improperly treated the "rehabilitative alimony" she received 

under the parties' property settlement agreement (PSA) as "limited duration 

alimony" when the judge determined that plaintiff's post-judgment disability 

was not an unusual circumstance warranting a conversion of the alimony's term. 

As to child support, plaintiff argues, and defendant concedes, that the judge 

applied outdated Child Support Guidelines (Guidelines)1in determining how to 

treat plaintiff's receipt of social security disability (SSD) derivative benefits.

1

 Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, 

Appendix IX-A to R. 5:6A, www.gannlaw.com (2021).
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A-2225-20

For the reasons that follow, we conclude the motion judge miscalculated 

child support and failed to support her decision to terminate alimony with 

sufficient facts. We therefore vacate the orders under appeal and remand the 

matter for reconsideration after the judge conducts a plenary hearing as to 

defendant's alimony obligation's termination and then issues a corrected child 

support determination based on the current Guidelines. 

I.

The salient facts taken from the record are summarized as follows. The 

parties married in October 1991. They had two children, a daughter who is now 

twenty-four years old and emancipated, and an unemancipated nineteen-yearold son. They divorced pursuant to their DJOD, which incorporated their PSA. 

The relevant provisions in the PSA stated:

1.4 Neither party shall interfere with the other in his or 

her respective liberty, conduct or action and each agrees 

that the other may at any time reside in such place as 

the said other may choose. Each may, for his or her 

separate use and benefit, conduct, carryon, and engage 

in any business and profession, or employment which 

to him or her may seem fit or advisable, free from 

control, restriction or interference, direct or indirect, by 

the other. Neither party shall annoy or interfere with 

any personal or business associates of the other.

3.1 [Defendant] agrees to pay child support in 

accordance with the Child Support Guidelines.
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. . . .

3.9 [Plaintiff] shall be entitled to receive rehabilitative 

alimony for a period of five (5) years as follows:

1. $325 per week for the first year.

2. $300 per week for the second year.

3. $275 per week for the third year.

4. $250 per week for the fourth and fifth years.

This rehabilitative alimony shall not be affected by the 

cohabitation of [plaintiff] in any relationship, 

regardless if it is tantamount to marriage, or remarriage, 

for the first three (3) years. [Defendant] shall also 

obtain a life insurance policy on himself and for the 

benefit of [plaintiff]. It is intended that this policy shall 

be used to meet his alimony obligations in the event of 

his untimely death.

3.10 [Defendant] shall pay [plaintiff] the sum of $1,250 

representing 50% of [plaintiff's] remaining school 

costs.

. . . .

4.4 Except as provided to the contrary by the within 

agreement, the parties do hereby expressly renounce, 

waive and relinquish all rights inuring to their 

respective benefits pursuant to or by reason of the 

marital relationship, as follows:

(a) The right to receive alimony, support or 

maintenance; . . . .

. . . .

4.9 Neither party will make any claim against the other 

for temporary or permanent alimony, support or 
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maintenance, for reimbursement of legal fees, court 

costs or other expenses, unless otherwise set forth in the 

within agreement.

It is undisputed that shortly after the parties divorced, plaintiff was 

diagnosed with disabling multiple Sclerosis. As a result, plaintiff could not 

work and was eventually determined by the Social Security Administration 

(SSA) to be totally disabled as of January 1, 2008. Plaintiff began to receive

SSD payments on or about May 11, 2009. It is also undisputed that defendant 

continuously paid alimony to plaintiff beyond the five-year period stated in the 

PSA until the orders entered in this action in 2020 and 2021.

Earlier, in 2012, when the five-year alimony term had expired, defendant 

filed a motion to reduce his alimony and child support obligations.2 He did not 

seek to terminate either. In response to his motion, plaintiff filed a cross-motion 

to convert her rehabilitative alimony to permanent alimony based on her 

disability. On March 2, 2012, a judge entered an order that denied relief to both 

parties, without prejudice, because the parties' failed to submit sufficient 

evidence in support of their positions.

2

 The parties did not submit a copy of these motion papers for the appellate 

record. We rely on the March 2, 2012 order addressing these motions.
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No additional motions were filed again until 2020. Moreover, as already 

noted, defendant continued to pay child support and alimony as if the five-year 

term never expired. 

On August 10, 2020, defendant filed a motion to terminate alimony and 

recalculate child support, which plaintiff opposed with a cross-motion to convert 

her rehabilitative alimony to permanent alimony. In his supporting certification, 

defendant argued that he was entitled to termination of alimony under the PSA 

and a reduction in child support because he had been overpaying for many years, 

plaintiff and their children were receiving SSD payments, and plaintiff was 

cohabitating with another person. Plaintiff explained in her supporting 

submission why she and the children continued to require even more in support 

than defendant had been paying, primarily due to her disability.

After considering the parties' oral arguments on November 6, 2020, the 

motion judge entered an order granting defendant's motion to terminate alimony 

effective February 14, 2012, and awarded him the right to a credit for his 

overpayment of alimony and child support, which was to be applied to his future 

child support obligation. She also granted defendant's motion to recalculate 

child support in light of his allegation that plaintiff and the children received 
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A-2225-20

SSD benefits and, to that end, she directed plaintiff to submit additional 

information before the credit amount was to be calculated. 

In her accompanying written decision, the judge reasoned that the PSA set 

forth the terms for payment of "limited duration alimony" and plaintiff's 

disability did not constitute the unusual circumstances required to modify the 

term of the "limited duration alimony." According to the judge, without any 

reference to the language used by the parties' in the 2007 PSA about 

rehabilitative alimony, she found "the parties entered into a PSA that explicitly

set the terms for limited duration alimony and recalculation of child support." 

The judge rejected plaintiff's contention that defendant was not entitled to relief 

because he "slept on his rights" as he had filed a motion in 2012 that was denied 

without prejudice on procedural grounds. 

Turning to the issue of a credit for his overpayment, the judge stated she 

accepted defendant's proposal to apply it to "future expenses related to the 

children" and not require a lump sum repayment from plaintiff. The judge 

stated, "defendant has asked that the total amount of any money credited to him 

be applied to cover future expenses related to the children, including any child 

support and college contribution. In other words, he is not seeking for the 

plaintiff to repay to him a substantial lump sum, which is estimated to be more 
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A-2225-20

than $100,000." Rather than have plaintiff repay defendant, the credit was to 

offset his child support obligations going forward. 

On November 19, 2020, the judge amended her November 6 order to 

terminate a previously issued income withholding order. In her accompanying 

statement of reasons, the judge again addressed the credit. She stated, "the court 

finds that given the amount of overpayment, which is likely to be in excess of 

$100,000, it is fair, reasonable[,] and appropriate to terminate defendant's child 

support obligation, without prejudice. This action will also serve to alleviate 

the Probation Division from the responsibility of maintaining this account under 

these unique circumstances."

Thereafter, plaintiff filed a motion for reconsideration. In her supporting 

submissions, plaintiff explained why the judge's treatment of the children's 

anticipated SSD benefits was inconsistent with the Guidelines and she argued 

that alimony should have been extended due to her "'unusual circumstances' of 

an unforeseen disability," and because defendant continued to pay alimony and 

not request his obligation be terminated for eight years, triggering the doctrine 

of laches. According to plaintiff, she relied on his continuing payment when 

she decided to not seek an increase in child support over those same years. 
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A-2225-20

While plaintiff's motion was pending, she submitted documents that 

demonstrated that the parties' adult daughter received a lump sum payment of 

$65,503.04 from the SSA for unpaid derivative SSD benefits dating back to June 

2008, and plaintiff received $10,688.00 on behalf of the parties' son in a lump 

sum for the same benefits dating back to 2019, and that plaintiff would continue 

receiving $776.00 in monthly derivative benefits for the parties' son.

3

 

Later, defendant filed opposition to plaintiff's reconsideration motion. In 

his certification, he explained that probation calculated his overpayment of 

alimony to be $148,752.12. He reiterated that since he did "not expect [p]laintiff 

to write a check to [him] with this amount of overpayment, [he] proposed that 

[he] receive a credit towards [his] future child support obligation[] for [the] 

children instead." He suggested that because his daughter was emancipated, the 

credit be applied to the few years he anticipated that his son would be 

unemancipated. Any remaining amounts would be used towards his obligation 

to pay for payment of "the children's unreimbursed medical expenses and other 

expenses not covered in child support. Then, if [he is] still owed a credit, [he 

was] willing to waive the remainder of [his] credit." 

3

 It appears from the SSA documentation submitted by plaintiff that the 

retroactive benefit period for the son only covered one year. The reason is 

unclear. 
10 A-2225-20

Without hearing oral argument, on March 16, 2021, the judge entered an 

order granting in part and denying in part plaintiff's motion for reconsideration, 

which the judge supported with an accompanying statement of findings and 

conclusions of law. The judge reconsidered whether credits for alimony 

overpayments could be applied to offset child support obligations and 

determined they could not, reversing the portion of her November 19 order that

did so.4 

The judge also vacated her earlier decision fixing the date for termination 

of alimony as March 2012. Instead, she applied the doctrine of laches and fixed 

the date as of defendant's filing his motion in 2020. However, the judge denied 

reconsideration of her order to terminate alimony for substantially the same 

reasons stated in her November 19 order. 

Also, the judge recalculated defendant's child support obligations based 

on outdated Guidelines, reserving on the amount of the credit for overpayments 

made until plaintiff provided information about "the date when plaintiff began 

receiving [SSD] benefits." In the order, the judge also suspended defendant's 

child support obligation for the parties' son "until [his] eighteenth birthday 

4

 In the March 16 order, the judge refers to an October 29, 2020 order, which 

apparently was an error intended to refer to her November 19, 2020 order.
11 A-2225-20

[which is] the date upon which his [SSD] benefits cease. After that date, and in 

light of [the daughter's] child support termination date [eight days later], child 

support [for the son] shall be set at $266 per week." In her decision, the judge 

reasoned, "the benefits [the parties' son] currently receives exceed defendant's 

child support obligation." 

In accordance with judge's order, on March 23, 2021, plaintiff provided 

additional documents that demonstrated her benefits period began January 1, 

2008. 

On April 13, 2021, the judge entered a final order, without an 

accompanying statement of facts and conclusions of law, calculating the credit 

owed to defendant to be $76,052, the entire lump sum of derivative SSD benefits 

received by the parties' daughter and by plaintiff on behalf of their son. This 

appeal followed.

II.

We begin by acknowledging our review of Family Part orders is limited.

Cesare v. Cesare, 154 N.J. 394, 411 (1998). "We review the Family Part judge's 

findings in accordance with a deferential standard of review, recognizing the 

court's 'special jurisdiction and expertise in family matters.'" Thieme v. AucoinThieme, 227 N.J. 269, 282-83 (2016) (quoting Cesare, 154 N.J. at 413). "Thus, 
12 A-2225-20

'findings by the trial [judge] are binding on appeal when supported by adequate, 

substantial, credible evidence,'" id. at 283 (quoting Cesare, 154 N.J. at 411-12), 

and it is "[o]nly when the trial [judge]'s conclusions are so 'clearly mistaken' or 

'wide of the mark' should [we] intervene and make [our] own findings to ensure 

that there is not a denial of justice," N.J. Div. of Youth & Fam. Servs. v. E.P., 

196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Fam. Servs. v. G.L., 191 

N.J. 596, 605 (2007)). We do not, however, owe any deference to the court's 

"interpretation of the law." Thieme, 227 N.J. at 283 (quoting D.W. v. R.W., 212 

N.J. 232, 245 (2012)).

We also apply our deferential standard to Family Part judges' 

determinations about alimony. We will uphold an alimony award on appeal 

unless the judge failed to apply the correct legal standards or abused his or her 

discretion by making findings that are not supported by sufficient credible 

evidence in the record. J.E.V. v. K.V., 426 N.J. Super. 475, 485 (App. Div. 

2012) (citing Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996)). A 

trial judge abuses his or her discretion "when a decision is 'made without a 

rational explanation, inexplicably depart[s] from established policies, or rest[s] 

on an impermissible basis.'" Kornbleuth v. Westover, 241 N.J. 289, 302 (2020)
13 A-2225-20

(quoting Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 

378, 382 (App. Div. 2015)).

The same standard applies to trial judges' child support determinations. 

The award of child support is committed to the sound discretion of the trial judge 

and the award will not be disturbed on appeal "unless it is 'manifestly 

unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the 

result of whim or caprice.'" Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. 

Div. 2008) (quoting Foust v. Glaser, 340 N.J. Super. 312, 315-16 (App. Div. 

2001)).

Where an award of alimony or child support is the subject of a 

reconsideration motion, we again apply an abuse of discretion standard. On 

appeal from a denial of a motion to reconsider, our review is also limited, but 

the denial "will be set aside if its entry is based on a mistaken exercise of 

discretion." Brunt v. Bd. of Trs., Police & Firemen's Ret. Sys., 455 N.J. Super. 

357, 362 (App. Div. 2018).

III.

With these guiding principles in mind, we first address what the parties 

agree was the motion judge's error in applying plaintiff's and the children's SSD 

benefits in her calculation of child support under the Guidelines.
14 A-2225-20

On appeal, plaintiff concedes defendant is entitled to a credit due to their 

children receiving derivative benefits, however she argues the credit was 

miscalculated by the judge because she gave a dollar-for-dollar credit to 

defendant for the amount the children received from the SSA based on plaintiff's 

disability, which was inconsistent with the 2013 amendments to the Guidelines. 

In response, defendant agrees remand is necessary to recalculate child 

support in accordance with those amendments and that a "dollar-for-dollar" 

credit was not warranted. However, defendant claims the Guidelines do not 

instruct how the judge should calculate the credit owed to him for paying 

Guidelines-based support that did not account for the derivative benefits the 

children received. According to defendant, under Diehl v. Diehl, 389 N.J. 

Super. 443 (App. Div. 2006), he is entitled to a credit in the amount of his 

overpayment, calculated as the difference from what he paid and what he would 

have paid if derivative benefits were included in the calculation pursuant to the 

2013 amendment, over the term during which the lump sum derivative benefits 

covered, that is going as far back as 2008 for one child. 

According to plaintiff, defendant's overpayment should be calculated 

pursuant to the 2013 amendments, however because the anti-retroactivity 

statute, N.J.S.A. 2A:17-56.23a, limits the credit to being calculated only for the 
15 A-2225-20

period beginning on the date on which defendant filed his motion seeking 

modification, any change in support and the amount of the credit, if any, can be 

based upon only the period beginning with defendant's filing of his motion in 

2020. Additionally, plaintiff argues that any benefit paid directly to the parties' 

now-adult daughter should not be factored into the equation because the funds 

are not available to plaintiff to use for the children's support and to do so would 

detrimentally impact the parties' unemancipated child.

We conclude that the judge failed to apply the SSD benefits in accordance 

with the current Guidelines. However, we agree with plaintiff that any 

calculation of a credit based on an overpayment of child support must be 

calculated retroactive to defendant's filing of his motion in 2020.

We disagree with defendant that Diehl requires any modification to be 

effective retroactive to the beginning of the period that SSD benefits became 

effective. In Diehl, unlike the circumstances here, we addressed the application 

of SSD benefits payable to children where the supporting parent—the one with 

the court ordered obligation—became disabled. 389 N.J. Super. at 447. We 

explained that SSD benefits are derived from the worker's social security 

contributions, and the benefits substitute for lost earning power during periods 

of disability. Id. at 459. Here, the SSD benefits substituted for the earnings of 
16 A-2225-20

the obligee, plaintiff, and, as we discuss infra, were not properly calculated into 

the Guidelines amount.

However, as defendant correctly contends, the modification should be 

correctly calculated going back to the benefits' effective date, but contrary to 

defendant's position, the new amount of child support, if any, should begin on 

August 10, 2020, the date defendant filed his last modification motion. See

N.J.S.A. 2A:17-56.23a.

Here, it is undisputed that the motion judge did not employ the Guidelines 

as amended in 2013. That amendment specifically modified the manner that 

SSD benefits were to be addressed in determining child support. The relevant 

portion of the Guidelines states the following:

Derivative benefits have eligibility standards that are 

based on the contribution (e.g., work history, military 

service, disability or retirement) of one of the parties, 

without regard to family income. This includes but is 

not limited to Social Security Disability, Social 

Security Retirement, Black Lung, and Veteran's 

Administration benefits. Such payments are either 

deducted from a parent's government benefit or paid in 

addition to the parent's benefit. These child benefits are 

earned benefits that are meant to replace the lost 

earnings of the parent in the event of disability or 

retirement. The derivative child benefits shall be 

counted in the weekly net income of the parent whose 

contribution is the source of the benefits and applied as 

a credit to that parent's child support obligation. If the 

amount of the support obligation after deducting the 
17 A-2225-20

benefits is zero, then the child support obligation is 

satisfied and no support award should be ordered while 

the child is receiving the benefits.

[Pressler & Verniero, Appendix IX-A to R. 5:6A, ¶

10(c)(2) (emphasis added).]

Pursuant to the 2013 revision, derivative SSD benefits under these 

circumstances must be included as income of the parent with a disability, and 

then applied as a credit to that parent's child support obligation rather than the 

prior methodology, where the benefits were deducted from the overall award 

before apportioning the remaining obligation, if any, between the parties. 

Compare Cleveland v. Cleveland, 249 N.J. Super. 96, 103 n.7 (App. Div. 1991) 

(noting the trial court's decision to increase the obligor's income by the amount 

of derivative benefits and then apply the benefits as an offset against the 

obligor's percentage share, which is consistent with the 2013 amendment) with

Herd v. Herd, 307 N.J. Super. 501, 503 (App. Div. 1998) (deducting benefits 

amount from the overall award of child support).

Here, the judge did not follow the 2013 amendment by including 

derivative benefits as income to plaintiff, the parent with a disability, and then 

crediting only plaintiff for the derivative benefits to the extent of her obligation, 

if any. Instead, in her calculation of defendant's obligation as of March 16, 

2021, the judge properly included derivative benefits as income to plaintiff;
18 A-2225-20

however, she improperly deducted the derivative benefits from defendant's, the 

non-disabled parent's obligation, when she suspended it until the parties' son's 

eighteenth birthday because the benefits paid to the son exceeded defendant's 

child support obligation, which was consistent with the pre-2013 amendment 

methodology but now incorrect. Also, before she suspended his obligation, the 

judge improperly ordered defendant's obligation to be $322 per month, while 

her worksheet shows his obligation should have been $322 per week.

5

As to the commencement date of any modified support amount, as already 

noted, the new child support amount must be calculated to include the SSD 

benefits when they commenced. However, contrary to defendant's argument 

before us, any reduction in support and the amount of any resulting credit can 

be based upon a starting date of only August 10, 2020, the date defendant filed 

the modification motion because the period for application of child support 

modification is expressly limited to that period by statute. See N.J.S.A. 2A:17-

56.23a. 

5

 The judge's calculation of defendant's obligation as of June 13, 2021, as noted 

in her April 13, 2021 order, did not include derivative benefits as income to 

plaintiff because that calculation was for the period after the parties' son turned 

eighteen and benefits would have ceased.
19 A-2225-20

Therefore, a remand is necessary to recalculate child support obligations 

pursuant to the current Guidelines. It is only after the child support is correctly 

calculated that defendant's overpayment, if any, can be calculated to determine 

any credit to which he might be entitled due to the children's receipt of SSD 

benefits. The determination of whether a credit is owed and its amount should 

consider the equities affected by the circumstances at different periods, 

including (1) August 10, 2020, when defendant filed his motion, to November 

2020, when his obligation was suspended, (2) November 2020 to June 13, 2021, 

when the son turned eighteen and derivative benefits ceased, (3) June 13, 2021 

to June 19, 2021, when the daughter's child support terminated, and (4) the 

ensuing period. See Labrosciano v. Labrosciano, 426 N.J. Super. 252, 262 (Ch. 

Div. 2011) (citing Diehl, 389 N.J. Super. at 450) (discussing differing standards 

for award of credits for lump sum derivative SSD benefits based on various 

circumstances at different periods). 

Notably, in any calculation of a credit, because the lump sum derivative 

benefits paid directly to the parties' daughter are out of plaintiff's reach, they 

cannot be presumed to have been applied for the care of both children, and 

cannot be applied towards support of the unemancipated child. See Diehl, 389 

N.J. Super. at 448-49, 455-56 (recognizing lump sum SSD benefits paid directly 
20 A-2225-20

to child after she turned eighteen belong to the child, but cannot be disregarded 

when calculating an overpayment to child support and could offset future 

support obligations of that child, depending on the equities of the case); cf.

Pressler & Verniero, Appendix IX-A to R. 5:6A, ¶¶ 7(j), 18 ("These guidelines 

assume that the obligee is spending the support award for the benefit of the child 

or children." "[P]rimary consideration shall be given to the continued support of 

minor children remaining in the primary residence . . . .").

IV.

Before child support can be determined, the issue of plaintiff's alimony 

must be revisited. On appeal, plaintiff argues the judge erred in denying her 

request to extend rehabilitative alimony or convert it to open durational alimony 

because her post-judgment diagnosis with multiple sclerosis that left her 

completely disabled and unable to work clearly constituted changed 

circumstances warranting such a modification. Specifically, plaintiff contends 

the judge, in her first decision, applied the incorrect standard—unusual 

circumstances—to determine whether defendant's alimony obligation could be 

extended. Additionally, plaintiff claims the judge's reasoning for denying 

reconsideration of that decision was flawed because plaintiff applied for a 

modification of rehabilitative alimony in 2020 and her application was not 
21 A-2225-20

precluded by the 2012 order that denied without prejudice her motion for the 

same relief. Plaintiff also argues the judge should have granted oral argument 

because this is a substantive issue of extreme consequence to her and her 

children's well-being. 

In response, defendant argues the judge properly terminated his alimony 

obligation. Specifically, defendant contends the parties expressly waived any 

alimony other than the limited rehabilitative alimony specifically outlined in the 

parties' PSA. Alternatively, defendant claims his alimony obligation could be 

terminated because plaintiff was cohabitating with her boyfriend and because 

the doctrine of laches precludes plaintiff from seeking a modification of support 

after sitting on her rights for roughly eight years after her initial application was 

denied. 

Plaintiff replies that the parties' PSA explicitly provided for 

"rehabilitative alimony" and she did not explicitly waive the right to extend or 

convert it, and alternatively that her disability now renders any waiver unfair,

inequitable, and consequently unenforceable. As to her possible cohabitating 

affecting defendant's alimony obligations, plaintiff claims the judge did not 

meaningfully analyze the issue. Finally, plaintiff contends the doctrine of laches 

is inapplicable to her because defendant voluntarily paid alimony for many years 
22 A-2225-20

beyond the termination date established in the parties' PSA and so there was no 

need to seek relief.

As already mentioned, we conclude a plenary hearing is warranted as to 

what the parties intended by agreeing to "rehabilitative alimony" for a fixed 

period, whether their agreement barred plaintiff from seeking any modification 

based upon her subsequent unexpected diagnosis, and what impact, if any, either 

party's failure to seek relief for eight years after the 2012 order had on their 

claims for modification, termination, or conversion of defendant's alimony 

obligation.

At the outset, we acknowledge the significance of the PSA. In divorce 

matters, "'the use of consensual agreements to resolve marital controversies' is 

particularly favored." Weishaus v. Weishaus, 180 N.J. 131, 143 (2004) (quoting 

Konzelman v. Konzelman, 158 N.J. 185, 193 (1999)). Such agreements are 

accorded "prominence and weight" and "should not be unnecessarily or lightly 

disturbed." Konzelman, 158 N.J. at 193-94. 

Our review of a trial judge's interpretation of a PSA is de novo. Amzler v. 

Amzler, 463 N.J. Super. 187, 197 (App. Div. 2020). In our review, we apply 

the general rule that courts should "enforce contracts as the parties intended." 

Pacifico v. Pacifico, 190 N.J. 258, 266 (2007). "[I]t is a basic rule of contractual 
23 A-2225-20

interpretation that a court must discern and implement the common intention of 

the parties." Ibid. To determine the parties' design, we look at the agreement 

as a whole, not just one sentence. To that end, we consider the terms of the 

agreement as written "in the context of the circumstances at the time of drafting 

and . . . apply a rational meaning in keeping with the 'expressed general 

purpose'" of the parties. Ibid. (quoting N. Airlines, Inc. v. Schwimmer, 12 N.J. 

293, 302 (1953)).

Prior to statutory amendments in 1999, specifically recognizing limited 

duration alimony, the term "rehabilitative alimony" was used to encompass 

awards of both rehabilitative alimony and limited duration alimony (also thenreferred to as limited term or term alimony), as we understand them today. 

J.E.V., 426 N.J. Super. at 487 n.1. 

Now, rehabilitative alimony is a short-term award to enable the supported 

spouse "to complete the preparation necessary for economic self-sufficiency,"

Hill v. Hill, 91 N.J. 506, 509 (1982), and "ceas[es] when the dependent spouse 

is in a position of self-support," Hughes v. Hughes, 311 N.J. Super. 15, 31 (App.

Div. 1998) (citing Weber v. Weber, 268 N.J. Super. 64, 71 (App. Div. 1993)). 

The award must be based on a rehabilitation plan that "shows the scope of 

rehabilitation, the steps to be taken, and the time frame, including a period of 
24 A-2225-20

employment during which rehabilitation will occur." N.J.S.A. 2A:34-23(d); see

Finelli v. Finelli, 263 N.J. Super. 403, 406-07 (Ch. Div. 1992) (a "casual 

reference" at trial of a party's intention to return to school was not a sufficient 

basis to award rehabilitative alimony); Mishlen v. Mishlen, 305 N.J. Super. 643, 

650-51 (App. Div. 1997) (affirming an award of rehabilitation alimony limited

to six months where no specific plan was set forth); cf. Carter v. Carter, 318 N.J. 

Super. 34, 42 (App. Div. 1999) (when awarding rehabilitative alimony, even in 

cases that are settled, the court must make specific findings about these statutory 

factors).

On the other hand, "[l]imited duration alimony is not intended to facilitate 

the earning capacity of a depend[e]nt spouse or to make a sacrificing spouse 

whole, but rather to address those circumstances where an economic need for 

alimony is established, but the marriage was of short-term duration such that 

permanent alimony is not appropriate." Cox v. Cox, 335 N.J. Super. 465, 476 

(App. Div. 2000). The duration of the marriage is the "defining distinction 

between whether permanent or limited duration alimony is warranted." Id. at 

483. 

Our courts recognize a presumption that the temporal aspect of an 

agreement for limited duration alimony be preserved. Gordon v. Rozenwald, 
25 A-2225-20

380 N.J. Super. 55, 70 (App. Div. 2005). This is because "'the parties to a 

dispute are in the best position to determine . . . [the] least disadvantageous'

resolution and fashion an arrangement that meets their particular needs." Ibid.

(alteration in original) (quoting Peskin v. Peskin, 271 N.J. Super. 261, 275 (App. 

Div. 1994)). Modification of a voluntary and predetermined arrangement for 

termination of alimony is not ordinarily equitable and fair. Id. at 68.

A party seeking a modification of an alimony agreement has the burden 

of demonstrating that he or she is entitled to some reformation of the agreement. 

See Lepis v. Lepis, 83 N.J. 139, 157 (1980). To modify rehabilitative alimony 

or the amount of limited duration alimony, as compared to its duration, a 

showing of "changed circumstances" or "the nonoccurrence of circumstances 

that the court found would occur at the time of the award" is necessary. N.J.S.A. 

2A:34-23(c), (d). However, to modify the length of the term of limited 

durational alimony, a higher statutory showing of "unusual circumstances" is 

necessary. See Gonzalez–Posse v. Ricciardulli, 410 N.J. Super. 340, 356 (App.

Div. 2009); N.J.S.A. 2A:34-23(c). As for converting limited duration for open 

durational alimony (permanent alimony),

6

courts should require the heightened

6

 A 2014 amendment to N.J.S.A. 2A:34-23 substituted "open durational 

alimony" for "permanent alimony." L. 2014, c. 42, §1.
26 A-2225-20

"unusual circumstances" showing unless a party demonstrates, "as part of a 

prima facie case, that the term is a substitute for permanent alimony premised 

upon a promise or expectation of alternative funds for support that has not been 

fulfilled or realized." Gordon, 380 N.J. Super. at 70.

Here, it is undisputed that plaintiff is disabled and her ability to pursue 

gainful employment is impaired, and that the judge properly recognized the 

same based on plaintiff's successful application for SSD benefits. See Gormley 

v. Gormley, 462 N.J. Super. 433, 444 (App. Div. 2019) (recognizing SSA 

determination a party is disabled is prima facie evidence of the party's inability 

to be gainfully employed).

What is unclear is whether the parties intended to provide for 

rehabilitative or limited duration alimony in their PSA, regardless of their 

reference to the former and in light of the eight years that passed between the 

2012 order and the orders under appeal. Although the PSA states "rehabilitative 

alimony" would be paid for five years, there is no reference to a rehabilitative 

plan in the PSA or in the DJOD. Rather, the PSA includes separate provisions 

requiring defendant to pay fifty percent of plaintiff's remaining school costs and 

requiring the parties to not interfere with each other's personal matters or 

professional pursuits, including employment. 
27 A-2225-20

However, the intent of the parties pertaining to the agreed upon type of 

alimony is unclear because of the PSA's description of alimony as being 

rehabilitative, and the parties' subsequent acknowledgement that it was 

originally fixed for a limited duration. Under these circumstances, the judge 

should have granted oral argument and a plenary hearing to better determine the 

parties' intent. See Carter, 318 N.J. Super. at 50 n.9. Notably, the judge's 

decision does not even mention the fact that the parties identified the type of 

alimony as "rehabilitative" and does not provide any findings as to why she 

determined that the parties' selection of rehabilitative alimony was to be treated 

as limited duration alimony. 

By not doing so, the judge had no basis to conclude the parties intended 

what they described as rehabilitative alimony to be limited duration alimony. 

The resolution of that issue was crucial to the determination of the burden 

plaintiff had to meet when seeking to extend the term or convert the agreed upon 

alimony to open durational alimony. Moreover, without a sufficient 

explanation, our appellate review of her determination is significantly impeded. 

See Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008).

For that reason, we are constrained to remand so the judge can also 

develop the necessary facts to support a determination of the type of alimony 
28 A-2225-20

the parties intended. If the judge determines the parties intended on providing 

for rehabilitative alimony, then the judge must apply the lesser standard for 

determining whether modification of rehabilitative alimony is warranted under 

the circumstances, and if not, the judge must explain her rejection of the PSA's 

agreed upon description and presume the heightened standard applies. 

If on remand the judge determines that the alimony should be converted 

to open durational alimony, or otherwise modified, so that it extends into the 

future, the judge must also address defendant's claim that plaintiff's cohabitation 

with another warranted termination of alimony, an issue the judge did not 

address in her earlier decisions.

However, to be sure, by our remand of this matter we do not imply that 

any specific outcome should be reached by the judge after complying with our 

directive to hold a plenary hearing after giving the parties an opportunity for 

reasonable discovery as to the limited issue about alimony being terminated or 

not.

V.

Finally, despite plaintiff's arguments on appeal, we conclude that we have 

no cause to remand this matter to a different judge. While we do have "the 

authority to direct that a case be assigned to a new judge upon remand," 
29 A-2225-20

Graziano v. Grant, 326 N.J. Super. 328, 349 (App. Div. 1999), our authority is 

sparingly exercised; and we will only do so when it is necessary "to preserve the 

appearance of a fair and unprejudiced hearing," Pressler & Verniero, Current 

N.J. Court Rules, cmt. 4 on R. 1:12-1 (2021); see also Graziano, 326 N.J. Super.

at 350. While we recognize the judge here mistakenly calculated child support 

and did not provide a sufficient basis for her orders as to alimony, there is no 

evidence that the judge was unfair to either party. Significantly, as the judge's 

order on reconsideration demonstrated, the judge did not express commitment 

to her findings, but was willing to consider that she was mistaken in the first 

instance, to a point. See Graziano, 326 N.J. Super. at 349.

VI.

To the extent we have not considered plaintiff's remaining arguments, if 

any, we conclude they are without sufficient merit to warrant further discussion 

in a written opinion. R. 2:11-3(e)(1)(E).

Vacated and remanded for further proceedings consistent with our 

opinion. We do not retain jurisdiction.