SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-2775-21 

PETER SCHMITZ, 

 Plaintiff-Appellant, 

v.

SUSAN FAIRHURST, 

 Defendant-Respondent. 

________________________

Argued November 1, 2023 – Decided November 21, 2023 

Before Judges Firko and Susswein. 

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Burlington County, 

Docket No. FM-03-1258-20.

Ronald G. Lieberman argued the cause for appellant 

(Adinolfi, Lieberman, Burick, Roberto & Molotsky, 

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

Janine Danks Fox argued the cause for respondent 

(Szaferman, Lakind, Blumstein & Blader, PC, 

attorneys; Janine Danks Fox, of counsel and on the 

brief). 

PER CURIAM 

NOT FOR PUBLICATION WITHOUT THE 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.
2 A-2775-21

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

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

terminate or modify his alimony obligations based on provisions contained in 

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

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

precluding plaintiff from seeking modification and requiring him to pay arrears 

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

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

sharply conflicting factual assertions regarding the alimony provisions and the 

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

I.

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

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

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

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

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

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

1

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

15, 16, 17, 19, 21, 22, 23, and 26 of the order. 
3 A-2775-21

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

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

or $85,000 per annum. 

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

one or more of the following: 

Termination of Obligation: The terms of this Article 

shall continue for the natural lives of the parties, unless 

terminated by any one or more of the following: 

(a) Death of Wife; 

(b) Remarriage of Wife or her cohabitation with 

an unrelated male under conditions which the law then 

in effect indicates is a basis to terminate or modify 

alimony; 

(c) Repudiation or modification of this 

Agreement by mutual consent of the parties, provided 

that said repudiation or modification is in writing and 

duly signed and witnessed; 

(d) Death of Husband. However, nothing herein 

contained shall be deemed to relieve Husband's estate 

of any obligations incurred hereunder by Husband and 

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

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

continue to be payable, although there shall be no 

obligation to make payments for any time period after 

said date of death. Should Wife predecease Husband, 

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

executors, administrators and assigns, hereby agrees 

that all rights under this Article, except as provided in 

this subparagraph, shall terminate. 
4 A-2775-21

Article II, paragraph 5 addresses renegotiation of alimony: 

Renegotiation Upon Occurrence of Certain Events: The 

payments provided for in this Article may be 

renegotiated upon Husband's request upon his 

retirement from active employment or upon Husband 

suffering from any medically determinable physical or 

mental impairment that renders him unable to engage in 

any substantial gainful employment or significantly

reduces his income. 

Wife agrees not to seek any modification in alimony

unless she becomes disabled and unable to work and 

she specifically waives her right to modify based on 

increases in Husband's income or the termination of

child support. 

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

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

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

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

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

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

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

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

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

interpreted under and in accordance with the laws of the State of New Jersey." 
5 A-2775-21

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

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

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

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

unable to maintain consistent employment in his field. 

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

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

and substantially reduced financial circumstances. Plaintiff stated he started his 

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

the divorce, plaintiff certified he changed jobs to pursue better opportunities, 

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

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

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

past, he was unsuccessful in obtaining a new job.

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

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

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

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

2

 Plaintiff relocated to Florida after the parties' divorce. 
6 A-2775-21

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

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

to support his argument. 

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

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

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

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

plaintiff certified that defendant enhanced her lifestyle following the divorce by 

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

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

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

is currently self-employed. 

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

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

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

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

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

and alimony related obligations. Defendant also cross-moved to seize plaintiff's 
7 A-2775-21

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

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

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

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

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

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

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

conclusions of law. 

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

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

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

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

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

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

Agreement are colorable, and that Article II, paragraph 

5 of the parties' MSA is sufficiently ambiguous to 

warrant a hearing to determine the parties' intent at the 

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

the paragraph be determined to be nonexhaustive, then 

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

circumstance under Lepis.3

3

 Lepis v. Lepis, 83 N.J. 139, 146 (1980). 
8 A-2775-21

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

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

plaintiff's alimony obligation." 

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

privately mediate their disputes without success. Defendant moved for 

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

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

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

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

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

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

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

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

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

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

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

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

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

"mathematical formula" to pay 20% of his gross income as alimony, which was 
9 A-2775-21

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

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

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

future . . . ." 

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

motion for reconsideration. The judge referred the parties to another postjudgment ESP, directed defendant to file a CIS, and permitted the parties to 

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

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

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

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

six months to secure his alimony obligation.4

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

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

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

4

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

5

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

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

County. Defendant's counsel sought to depose the judge. 
10 A-2775-21

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

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

certain written questions, plaintiff's former attorney stated there was no antiLepis clause regarding plaintiff in the MSA drafts or final MSA, but there was 

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

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

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

reciprocal language against plaintiff. 

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

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

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

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

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

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

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

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

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

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

anti-Lepis clause applicable to plaintiff, and no draft of the MSA precluded him 
11 A-2775-21

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

substantially changed circumstances. 

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

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

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

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

scheduled for June and July 2021. 

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

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

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

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

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

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

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

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

plaintiff's motion in its entirety. 

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

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

6

 The record also shows the amount was as high as $38,509.83. 
12 A-2775-21

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

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

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

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

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

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

hearing was conducted. 

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

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

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

motion record provided an appropriate basis for the court to make 

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

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

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

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

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

unemployment and substantially reduced financial circumstances. 

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

"somewhat less straightforward." During the discovery phase of the case, the 
13 A-2775-21

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

alimony modification issue stemmed from "revisions to the MSA exchanged 

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

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

contemplated language that would have enabled plaintiff to seek a modification 

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

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

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

disability." 

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

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

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

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

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

modify his alimony obligation on the basis of unemployment and reduced 

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

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

but found "the evidence in the motion record provided a basis for him to 
14 A-2775-21

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

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

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

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

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

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

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

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

challenged on appeal. 

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

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

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

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

proceedings. Memorializing orders were entered. This appeal ensued. 

 Plaintiff presents the following arguments for our consideration: 

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

the case established by the first judge without 

applicable facts; 

7

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

to be $240,824.47. 
15 A-2775-21

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

the parties is the main issue; 

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

was grounded in equity and fairness; and 

(4) defendant has unclean hands. 

II. 

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

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

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

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

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

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

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

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

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

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

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

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

reasonably have been reached on sufficient credible evidence present in the 
16 A-2775-21

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

337, 345 (App. Div. 1996). 

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

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

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

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

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

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

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

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

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

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

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

living generally commensurate with the quality of economic life that existed 

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

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

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

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

separation." Lepis, 83 N.J. at 150 (quoting Khalaf v. Khalaf, 58 N.J. 63, 69 
17 A-2775-21

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

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

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

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

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

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

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

certifications. We agree. 

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

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

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

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

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

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

Prior decisions should be followed unless "there is substantially different 

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

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

Super. 563, 582 (App. Div. 1990). 
18 A-2775-21

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

demonstrating a prima facie case of changed circumstances before the court 

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

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

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

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

circumstances." 

The Court then listed multiple examples of sufficient changed 

circumstances that warrant modification: (1) an increase in the cost of living; 

(2) increase or decrease in the supporting spouse's income; (3) illness, disability 

or infirmity arising after the original judgment; (4) the dependent spouse's loss 

of a house or apartment; (5) the dependent spouse's cohabitation with another; 

(6) subsequent employment by the dependent spouse; and (7) changes in federal 

tax law. Id. at 151. 

The party seeking modification must make a prima facie showing of 

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

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

support obligation. Id. at 157-58. A court may need to hold a hearing before 
19 A-2775-21

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

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

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

must demonstrate that changed circumstances have substantially impaired the 

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

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

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

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

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

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

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

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

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

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

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

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

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

Here, plaintiff established a prima facie case of changed circumstances. 
20 A-2775-21

However, courts acknowledge that income earned through employment 

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

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

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

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

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

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

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

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

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

ambiguities inherent in the MSA. The discovery exchanged and written 

deposition questions and answers provided by the parties' former attorneys 

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

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

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

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

8

 A parties' settlement agreement or subsequent consent order may reasonably 

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

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

enforcement where the parties "with full knowledge of all present and 
21 A-2775-21

MSA contains language barring defendant from seeking a modification of 

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

ability to modify his alimony obligation other than the two circumstances 

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

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

requires a plenary hearing. 

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

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

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

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

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

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

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

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

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

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

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

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

will not unnecessarily or lightly disturb such arrangements if the arrangements 

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

Konzelman, 158 N.J. 185, 193-94 (1999)). 
22 A-2775-21

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

modification when alimony is received," which he contends implies 

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

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

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

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

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

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

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

hearing. 

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

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

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

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

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

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

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

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

other). This provision of the MSA does not explicitly identify that plaintiff's 
23 A-2775-21

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

circumstances or mention an express waiver of the modification rights granted 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

intent. Pacifico, 190 N.J. at 269. Further, if following the plenary hearing, the 
24 A-2775-21

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

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

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

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

judge must analyze whether, under the circumstances presented, enforcement 

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

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

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

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

expressed in our opinion. 

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