SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3054- 21 PETER C. GEARY, Plaintiff-Appellant/ Cross-Respondent,

v. LAINIE F. GEARY, Defendant-Respondent/ Cross-Appellant.

________________________

Submitted November 13, 2023

– Decided February 21, 2024 Before Judges Berdote Byrne and Bishop-Thompson. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docke t No. FM-20- 0911

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De Tommaso Law Group, LLC, attorneys for appellant/cross-respondent (Joseph M. Freda, III, o f counsel and on the briefs).Lawrence Law, LLC, attorneys for respondent/crossappellant (Jeralyn L. Lawrence and Kristyl M. Berck es , on the briefs).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3054

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PER CURIAM This post -judgment matrimonial matter involves the modificat ion of limited duration alimony

. After holding a multi-day plenary hearing, the Fam ily Part entered an order on May 27, 2022, granting and denying relief in various respects. Plaintiff Peter Geary appeals the provis ions of the order that establish the temporary modification of alimony, calculate th e temporary modification, impute income , permit defendant to file a motion to extend limited duration alimony, and determine arrearages. Defendant Laini e Geary cross-appeals, challenging the setting of arrearages and denying her request for attorneys' fees. Having reviewed the record, we conclude the trial c ourt findings are supported by substantial, credible evidence and the trial court correctly applied the governing principles, therefore, we affirm.
I. We summarize the facts from the plenary hearing. B oth parties were represented by counsel during the proceedings. The parties were the only witnesses called to testify at the hearing. The parties were married on July 31, 1993 and share two children. In June 2014, the parties divorced, and a Marital Settlemen t Agreement (MSA) was incorporated into their Dual Final Judgment of Divorce (DF JD ). Article 6 of3 A- 3054

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the MSA governs alimony. Paragraph 6.2(A) provides plaintiff "shall pay . . . defendant limited duration alimony commencing May 1 , 2014, through December 31, 2030, in the amount of $120,000 per year or $1 0,000 per month." Under Paragraph 6.2(C), the parties agreed defendant has a claim for arrearages in the event plaintiff failed to advise h er that his income had returned to $325,000 or greater. The paragraph further read s, "[o]therwise, unless specifically noted within this Article herein, [def endant] shall not have a claim for any arrearages of any sort or kind for periods wherein her alimony [] was reduced." Pursuant to Paragraph 6.2(E), in the event plaintiff failed to advise defendant of the change, defendant "shall have a cl aim for arrearages if [plaintiff] fails to advise her that his income ret urned to $300,000 or greater, in which case she [would be] entitled to alimony at th e rate set forth in sub

paragraph (A) or (B) from the time his income returned t o $300,000 or greater." This provision also stated defendant did not have a claim for any arrearages of any sort for periods her alimony [] was reduced, unless spe cifically stated in the agreement. Paragraph 6.2(F) states defendant's earnings or pot ential earnings would not be considered unless her gross earnings reach $100,000 or defendant's4 A- 3054

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inc ome falls below $300,000. This paragraph also trig gers an automatic review of plaintiff's alimony obligation if defendant's in come rises above $100,000 per year, "specifically to review a downward modification of [plaintiff]'s ali mony obligations depending on [plaintiff's] income at th e time the parties utiliz ing mediation as the first means of resolving any dispu tes." During the marriage, plaintiff was employed as a ma naging director of an advertising agency in New York, earning approximate ly $325,000 per year. Plaintiff stated that due to corporate restructurin g, he wa s terminated from employment in September 2019 and received severance payments through December 2019. Defendant earned approximately $55,000 per year at the time of the divorce. In 2019, she earned $102,185.50 and $111, 464.90 in 2020. At the time of the hearing, defendant testified that she e arned $97,000 as a part-time office manager at a law firm and sold advertising p art-time for a legal publication. While plaintiff searched for other employment, he p aid defendant $5,000 per month in alimony from January through April of 2020, based on the parties' voluntary agreement. In May 2020, the parties agre ed to a further reduction of5 A- 3054

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$4,000 for the month, which plaintiff certified cam e from his $4,186.00 monthly unemployment benefits. At the hearing, plaintiff testified, despite a dili gent job search throughout the United States, he was unable to obtain employme nt in advertising and the related fields of marketing, media, and sales. He also claimed his job search was impacted by COVID-19. In support of his motion, plaintiff submitted a spreadsheet purporting to show 1,000 entries detail ing his job search. Within five months of his last severance payment, plaintif f notified defendant that he was relocat ing to reduce expenses since the job search did not yield results and he could no longer pay alimony. Beginning in June, plaintiff made a single $1,000 alimony payment to defendant. Plaintiff relocated to Hilton Head, South Carolina and decided to become a realtor. After becoming licensed , plaintiff established an LLC, created a website, and began promoting his business on social media platforms, but he never began work as a realtor and had not obtained othe r employment since his relocation. In accordance with the terms of the MSA, the partie s first attempted to resolve their alimony dispute through mediation. W hen mediation proved fruitless, in June 2020, defendant requested the co urt impute income of6 A- 3054

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$325,000 to plaintiff and return plaintiff's alimon y obligation to $120,000 per year in accordance with Paragraph 6.2(A). In respo nse, plaintiff cross-moved in July 2020, seeking to reduce his obligation to $ 1,000 per month, citing a change in financial circumstances based on his unem ployment. On September 18, 2020, the Family Part court entere d an order finding that plaintiff had "established a prima facie case of changed circumstances for termination/modification of his alimony" and would continue to pay annual alimony of $100,000, or $8,333 per month, subject t o reallocation pursuant to Paragraph 6.2(D). A plenary hearing was also order ed. A plenary hearing was held over the course of six, nonconsecutive days

on September 21, 22, 23, 29, 2021, and October 5 and 7 , 2021. On May 27, 202 2, the court issued an order accompanied by a cogen t oral opinion. The court analyzed the factors set forth in N.J.S.A. 2A:34 -23k and incorporated them in its analysis. It determined plaintiff had "effectively" proven a pr ima facie case of changed circumstances, "but only for a tempor ary modification of alimony" under N.J.S.A. 2A:34-23k(9). In making it s findings, the court focused on the factors articulated in Lepis v. Lep is : (1) an increase in the cost of living; (2) increase or decrease in the supporti ng spouse's income; (3) illness, disability or infirmity arising after the original judgment; (4) the dependent7 A- 3054

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spouse's loss of a house or apartment, (5) the depe ndent spouse's cohabitation with another; (6) subsequent employment by the depe ndent spouse, and changes in the federal income tax law. 83 N.J. 139, 151 (1 980) (internal citations omitted). In applying the factors to the evidence adduced at the hearing, the court found both parties decreased their living expenses. Plaintiff sold his home in New Jersey and relocated to South Carolina. Concer ning factor two, plaintiff had been unemployed since 2019 and, when his severa nce concluded, he emailed plaintiff that he was pursuing a realtor's license in South Carolina. As to factor three, neither party suffered an illness, disability, or infirmity arising after the original judgment. Regarding factor four, defendant voluntarily sold the martial home in Westfield and purchased a small er townhome in Basking Ridge. While plaintiff asserted defendant cohabita ted with her boyfriend, he did not formally assert a cohabitation claim; and t herefore, the court did not consider and did not find any cohabitation. As to factor six, the court found defendant continu ed to work for a legal journal and began working part time at her mother's law firm. The court further noted defendant was unlikely to earn over $100,000 in the future because defendant's mother would be retiring. The court it erated plaintiff's involuntary8 A- 3054

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termination and plaintiff's job search. The court also considered plaintiff attempt ed to start a real estate career in South Carolina, a nd plaintiff did not have a "stable income" at the time of the plenary h earing. Based on those findings, plaintiff's alimony obligation was tempor arily modified to $100,000 per year, from June 25, 2020, the filing date of plaintiff' s motion, to September 21, 2021, th e commencement of the plenary hearing, and plaintiff was directed to make retroactive payments of $8,333 per month. Pursuant to Caplan v. Caplan, 182 N.J. 250, 268 (20 05), the court imputed income to plaintiff in the amount of $180,000 per y ear as a realtor in South Carolina, commencing September 21, 2021. The court noted plaintiff had passed the real estate exam but had not worked sinc e he relocated to South Carolina. The court reasoned "given [plaintiff's] acceptance as a realtor in Hilton Head and the thriving real estate market dur ing the pandemic . . . [p]laintiff certainly could have earned a substantial sal ary as a realtor in Hilton Head by the time he testified after moving two year s ago to South Carolina, " taking judicial notice under N.J.R.E. 801(c)17 of S outh Carolina market reports and other commercial publications concerning the So uth Carolina real estate market. Similarly, the court took judicial notice of and consider ed the average9 A- 3054

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salary of Hilton Head real estate agents, imput ing income to plaintiff in the amount of $180,000 per year commencing in September 2021. The court, however, modified plaintiff's alimony ob ligation to $60,000 per year, or $5,000 per month , for 2021 and 2022 . The court also continued plaintiff's modified alimony obligation while plain tiff "builds his career," until "the limited duration of December 31, 2030 ," unless he resumes a salary of $300,000 or greater. Noting in paragraph 6.2(G) that plaintiff agreed to "use his best efforts to maintain an income of at least $325,000 in his pres ent and future endeavors in order to meet his maximum obligations," the court o rdered plaintiff to "continue to seek meaningful employment and use his best effo rts." The court found plaintiff no t "wholly believable and plausible." That finding wa s based on the court's conclusion that plaintiff's job search effo rts were not "entirely sufficient" because "he could have continued to see k advertising jobs even from Hilton Head but did not do so." The documentation submitted to show plaintiff's job search was "more evidence for New Y ork un employment rather than genuine and specific job searches." The court pointed out plaintiff (1) "never appeared" to follow up on applications; (2) applied to jobs on v arious internet recruiting sites by just submitting his re sume and "did not have the10 A- 3054

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proper experience or an MBA," and (3) "did not foll ow up with advertising agencies, nor provided [the documents] to the court

. " The court further ordered that in the event plainti ff earns $325,000, "at or near the end of the limited term of alimony, the duration may extend upon motion by defendant with all financials provided." The order also directed the parties to exchange their respective tax returns each year unt il 2035, five years after the expiration of the limited duration alimon y. As to arrears, beginning June 1, 2022, plaintiff was direct ed to pay $36,000 or $1,000 per month, for thirty-six months

. Finally, the court denied both parties' requests f or counsel fees.
II. On appeal, plaintiff challenges the order on severa l grounds. He argues the Family Part judge erred by : (1) failing to analyze the factors under N.J.S.A.
2A:34 -23 after he demonstrated a substantial change in c ircumstances; (2)

us ing a mathematical formula to set alimony; (3) requir ing his obligation return to the level dictated by the MSA if his salary equa led or exceeded $300,000 ; (4) order ing the parties to exchange their tax returns each yea r until 2035; (5) allow ing for the extension of the limited duration alimony period upon future motion; and (6) order ing him to pay alimony arrears in the amount of $36,00 0.11 A- 3054

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On cross-appeal, defendant argues the judge erred i n awarding $36,000
in alimony arrears, and denying defendant's request fo r counsel's fees. We reject the parties' arguments because they are n ot supported by the record and the controlling law.
II I. Our review of a Family Part order is limited. Ces are v. Cesare, 154 N.J. 394, 411 (1998). "We accord deference to Family Pa rt judges due to their 'special jurisdiction and expertise in family [law] matters.'" Gormley v. Gormley, 462 N.J. Super. 433, 442 (App. Div. 2019) (alteration in original) (quoting Cesare, 154 N.J. 394, 413 (1998)). A co urt's findings "are binding on appeal so long as their determinations are 'support ed by adequate, substantial, credible evidence.'" Id. at 442. Deference is esp ecially appropriate where evidence is testimonial and involves credibility de terminations because the observing court "has a better perspective than a re viewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 11 3 N.J. 20, 33 (1988). Generally, a Family Part court's finding regarding the modification of alimony "should not be vacated unless the court clearly abu sed its discretion, failed to consider all of the controlling legal principles, m ade mistaken findings, or reached a conclusion that could not reasonably have been rea ched on sufficient12 A- 3054

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credible evidence present in the record." J.E.V. v . K.V., 426 N.J. Super. 475, 485 (App. Div. 2012). However, while "a family cou rt's factual findings are entitled to considerable deference, we do not pay s pecial deference to its interpretation of the law." Thieme v. Aucoin-Thiem e, 227 N.J. 269, 283 (2016) (quoting D.W. v. R.W., 212 N.J. 232, 254 (2012)).
A. Modification of Alimony An alimony order establishes the present support ob ligations of the former spouses and is "always subject to review and modifi cation on a showing of 'changed circumstances.'" Crews v. Crews, 164 N.J. 11, 28 (2000) (quoting Lepis, 83 N.J. at 146). Pursuant to N.J.S.A. 2A:34 -23, an alimony order "may be revised and altered by the court from time to ti me as circumstances may require." See Amzler v. Amzler, 463 N.J. Super. 18 7, 197 (App. Div. 2020). When a party moves for a reduction in alimony, the Family Part court engages in a two-step inquiry. Crews, 164 N.J at 28. Firs t, the court must determine whether the moving party has made a prima facie sho wing of changed circumstances. R.K. v. F.K., 437 N.J. Super. 58, 6 2 (App. Div. 2014). "Changed circumstances such as . . . employment, . . . may r esult in a modification of support." Miller v. Miller, 160 N.J. 408, 420 (199 9). Thus , the moving party must demonstrate a change in circumstances from tho se existing when the prior13 A- 3054

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support award was fixed. Beck v. Beck, 239 N.J. Su per. 183, 190 (App. Div. 1990); see also Donnelly v. Donnelly, 405 N.J. Supe r. 117, 127-29 (App. Div. 2009). Next, the court must determine whether the party se eking modification has demonstrated changed circumstances..." have substantially impaired the [movant's] ability to support himself . . . ." Cre ws, 164 N.J. at 28 (quoting Lepis , 83 N.J. at 157). The trial court found plaintiff established a chang e in circumstances allowing a modification of his alimony obligation. The court nonetheless found that only a temporary modification of alimony was warra nted because "plaintiff [was] certainly capable of earning a substantial in come as a realtor in Hilton Head." We reject plaintiff's claim that the court failed t o address the statutory factors set forth in N.J.S.A. 2A:34- 23b. Plaintiff misapprehends the statute the

court wa s required to consider when reviewing an applicatio n to modify alimony. On an initial award of alimony, the court is required to consider the thirteen factors in N.J.S.A. 2A:34-23b. Prior to r endering findings of fact in this matter, the court expressly stated it considered an d determined plaintiff's application based on th e enumerated factors in N.J.S.A. 2A:34-23k and14 A- 3054

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incorporated them in its analysis. Having reviewed the forty-four-page transcript, we are satisfied the trial court's find ings are based on substantial, credible evidence and the correct statutory factors were applied. We reject plaintiff's argument that the court "whol ly disregard ed " N.J.S.A. 2A:34

- 23b by "utilizing a mathematical formula to establish s pousal support." We likewise reject plaintiff claims the court imprope rly imputed income to him. "If a court is satisfied that a party is not earnin g at his or her capacity it then can impute income if, as already noted, it fin ds voluntary underemployment without just cause." Gormley, 462 N.J. Super. at 448. The court is required to review whether defendant's income reduction is "'reasonable' under the circumstances." Storey v. Storey, 373 N.J. Super 464, 468 (App. Div. 2004). Imputation of income, incapable of ex actness, requires a "trial [court] to realistically appraise capacity t o earn and job availability." Id.

at 474 (citing Tash v. Tash, 353 N.J. Super. 94, 99 (App.D iv.2002)). Therefore, a trial judge's imputation of a specific amount of income "will not be overturned unless the underlying findings are inconsistent wit h or unsupported by competent evidence." Id. at 474-75. Here, the trial court made findings concerning plai ntiff's job search and his lack of stable income since he relocated to Sou th Carolina. The court's15 A- 3054

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findings that plaintiff could make a suitable living as real estate agent in Hilton Head are all based on sufficient, credible evidence in the record. Therefore, we are satisfied the trial court appropriately imputed income to plaintiff. We disagree with plaintiff's argument that the cour t "improperly" used a mathematical formula to determine his alimony oblig ation. The court explained the plaintiff's alimony obligation of $60,000 per y ear in 2021 and 2022 was "33.3 percent of [$180,000] imputed to him as a rea ltor in South Carolina." The court then noted the MSA provided for $120,000 per year in limited durational alimony which was "36.9 percent of his income for p urposes of the [MSA.]" Based on the sufficient credible evidence in the record, we discern no factual or legal basis to conclude the court abused its discre tionary authority by utilizing the same percentages as those utilized when his inc ome was established in the
MSA. We are not convinced by plaintiff's remaining argum ents that the court's findings as to defendant's income w ere contrary to defendant's testimony and constituted reversible error. In finding defendant 's income was an "isolated
event, " the trial court's findings are supported by credibl e evidence in the record. Nor does any consideration of defendant's income al ter plaintiff's downward16 A- 3054

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mo dification of alimony. Again, we discern no error in the court's considera tion of evidence as applied to the law.
B. Limited Duration Alimony Plaintiff argues the court committed reversible err or by extending his limited duration alimony obligation contrary to the MSA. Contrary to plaintiff's argument, the court rejected defendant's request to extend the term of alimony to pay back the arrears. The court enforced Paragr aph 6.4 of the MSA providing the length of the limited duration alimony "should not be modified, or otherwise subject to reduction." Consistent with the MSA and N.J.S.A. 2A:34-23(c), the court did not preclude defendant from making an app lication later to modify alimony based on an increase in plaintiff's income. We are satisfied the court's findings and order comports with the statute and th e MSA. See N.J.S.A. 2A:34- 23(c) ; Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340 (App. Div. 2009). We discern no abuse of discretion with the court's analysis or in its order because

a modification of a limited duration alimony term wil l be dependent on a future application and an analysis of the facts at that ti me. C. Arrearages A trial court "possesses broad equitable powers to accomplish substantial justice" and may tailor an appropriate remedy for violatio n of its orders. Finger17 A- 3054

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v. Zenn, 335 N.J. Super. 438, 446 (App. Div. 2000). Indeed, pursuant to Rule 5:3 -7(b), a Family Part court is entitled to use vario us remedies to enforce a judgment or order concerning alimony after finding a violation of same, including "fixing the amount of arrearages," imposi ng "economic sanctions," and "any other appropriate equitable remedy." R. 5:3 -7(b)(1), (4) and (8 ). Defendant now argues that the court erred in awardi ng $36,000 in arrearages by failing to consider the effective dat e of its decision and calculating plaintiff's arrears from the last day of the plenar y hearing, October 7, 2021, to the date of the court's decision, May 27, 2022. We disagree. At the September 2020 hearing on plaintiff's motion, plaintiff reque sted that arrears "be effective as of the filing date of [her] motion" because plai ntiff had not paid alimony from January through July 2020. Following defendant's u ndisputed testimony at the plenary hearing on the issue of the $36,000 in arre ars, the trial court properly awarded arrears based on plaintiff's failure to comply wit h the September order. We are also satisfied the trial court correctly fou nd that under Paragraph 6.2(C) or (E), defendant is precluded from claiming arrear ages from the last day of the plenary because the MSA does not provide for such a ward.18 A- 3054

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D. Attorneys' fees Defendant challenges the denial of her request for attorneys' fees, asserting the court failed to conduct an analysis o f plaintiff's counsel's affidavit of services or the reasonableness of his fees and f ailed to consider plaintiff's
sup erior financial circumstances, plaintiff's ability to pay, and plaintiff's bad faith. We disagree. Counsel fee determinations "rest[] in the sound dis cretion of the trial

court ." Bisbing v. Bisbing, 468 N.J. Super. 112, 121 (App. Div. 2021) (citing Williams v. Williams, 59 N.J. 229, 233 (1971)). We "will disturb a trial court's determination on counsel fees only on the 'rarest o ccasion,' and then only because of clear abuse of discretion." Slutsky v. Slutsky, 451 N.J. Super. 332, 365 (App. Div. 2017) (quoting Strahan v. Strahan, 4 02 N.J. Super. 298, 317 (App. Div. 2008)). Governed by these principles, we perceive no reason to disturb the May 27, 2022 order. The court properly considered Rule 5:3 -5(c) factors and results of the plenary hearing. We agree with the court that it "[did] not find that either party [was] more entitled to counsel fees than the other." Therefore, we discern no abuse of discretion in the trial court's denial of the award of fees. Affirmed.