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

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- 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 2775

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In this post-judgment matrimonial matter, plaintif f Peter Schmitz appeals from portions of the Family Part's April 21, 2022 o rder denying his motion to terminate or modify his alimony obligations based o n provisions contained in the parties' marital settlement agreement (MSA). 1 He also appeals from the order granting defendant Susan Fairhurst's cross-mo tion 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 th e alimony provisions and the representations each made to the other during the n egotiation of the MSA.

I. The parties were married in October 1985 and divor ced in October 2005. They incorporated their MSA into their dual final j udgment of divorce.

Defendan t didn't work outside the home during the marriage. At the time of their divorce, defendant became employed after rais ing 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 marria ge. 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

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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 w ould terminate by any one or more of the following:

Termination of Obligation: The terms of this Articl e 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 th en in effect indicates is a basis to terminate or modi fy alimony; (c) Repudiation or modification of this Agreement by mutual consent of the parties, provide d 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 esta te of any obligations incurred hereunder by Husband an d vested with Wife prior to Husband's death. Thus, a ny alimony that shall be due as of the date of death s hall continue to be payable, although there shall be no obligation to make payments for any time period aft er said date of death. Should Wife predecease Husband , then and in that event, Wife, for herself, her heir s, executors, administrators and assigns, hereby agree s that all rights under this Article, except as provi ded in this subparagraph, shall terminate.4 A- 2775

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Article II, paragraph 5 addresses renegotiation of alimony: Renegotiation Upon Occurrence of Certain Events: Th e payments provided for in this Article may be renegotiat ed 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 o n 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 insu rance 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 a limony is reviewed." Article XI, paragraph 1 provides for "Final Agreement; No M erger," . . . "[o]ther than upon a showing of substantially changed circumstanc es, neither party . . . shall seek alimony or support contrary to the provisions of this Agreemen t. " (emphasis added). And, Article XIV, paragraph 3 refers to "situs" and states alimony was "entered into in the State of New Jerse y and shall be construed and interpreted under and in accordance with the laws o f the State of New Jersey."5 A- 2775

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Post-divorce, plaintiff's earnings increased each y ear from $470,602 in 2006, to a peak of $1.6 million in 2015. Thereafte r, 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, pla intiff lost his job and was unable to maintain consistent employment in his fie ld. In May 2019, plaintiff filed a motion with an acco mpanying certification to terminate or modify his alimony obligations base d upon loss of employment and substantially reduced financial circumstances. Plaintiff stated he started his career as a pilot and then worked in business management p ositions. Following the divorce, plaintiff certified he changed jobs to pursue better opportunities,

but in 2016 was terminated due to the employer's downsi zing. Four months later, plaintiff secured new employment but earned less money. Because of the "exceptionally small specialty field" in which plai ntiff had been employed in the past, he was unsuccessful in obtaining a new job. Plaintiff stated he continued to make alimony payme nts that fell short of his obligation because that wa s all he c ould afford. He also received unemployment benefits in the amount of $275 per wee k from the State of

Florida 2 and sent one-half of that amount to defendant towa rds payment of his

2 Plaintiff relocated to Florida after the parties' d ivorce.6 A- 2775

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alimony obligation. Plaintiff certified he had no liqui d savings or funds to meet the alimony obligation and submitted a current case information statement (CIS) to support his argument.

Plaintiff claim ed his lifestyle has been downgraded. By way of example, plaintiff stated he sold his car and replaced it wi th 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 mee t his budget. In contrast, plaintiff certified that defendant enhanced her lifestyle following the divorce by renovating her home, buying a sports car, and takin g vacations. Plaintiff also moved to terminate or modify his obligation to main tain 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 al imony 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 mo dification of his alimony and alimony related obligations. Defendant also cross-moved to seize plaintiff's7 A- 2775

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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 or der reserving decision on the motions pending the parties' participation i n a post-judgment early settlement panel (ESP). The judge also suspended p laintiff's alimony obligation pendente l ite . On November 19, 2019, an order was entered amend ing the October 10, 2019 order, which included a supplement al statement of facts and

conclusions of law. The first judge noted in the November 19, 2019 ord er that Article II, paragraph 5 of the MSA was ambiguous and could be i nterpreted to mean either: (1) the language created an exclusive list of chang ed circumstances permitting modification or (2) the language set forth a non-ex haustive list of certain

foreseeable instances in which modification is warr anted. The judge added:

The [c]ourt finds that both parties' interpretation s of the Agreement are colorable, and that Article II, parag raph 5 of the parties' MSA is sufficiently ambiguous to warrant a hearing to determine the parties' intent at the tim e of the [MSA]. The [c]ourt also finds that should the paragraph be determined to be nonexhaustive, th en [p]laintiff has made a prima facie showing of chang e in circumstance under Lepis. 3

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

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

. clearly constitute[d] a change of circumstances war ranting 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, 202 0, plaintiff reiterated the MSA incorporated New Jers ey 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 a nti -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 divo rce, and he used a "mathematical formula" to pay 20% of his gross inco me as alimony, which was9 A- 2775

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the equivalent percentage of his income used in the MSA. Defendant asserted she limited her ability to seek increases in alimon y 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 o rder 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

en gage in limited discovery relating to their dispute d interpretations of the MSA as it pertain ed to alimony and alimony related obligations, such a s 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 rem ains 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 o f the Family Part in Mercer County. Defendant's counsel sought to depose the judge

.10 A- 2775

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Counsel for both parties agreed to serve written de position questions in lieu of oral examinations under oath on both parties' forme r attorneys. In response to certain written questions, plaintiff's former attor ney 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. Plai ntiff's prior attorney also indicated in another written response that Article II, paragraph 5 of the MSA barred defendant from modifying the alimony provisi on, 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 suppor t she received if plaintiff could return to court "for any reason to reduce ali mony." Her response was, "I do not recall any specific discussions with [defend ant] about accepting a lower amount of alimony in exchange for limiting [plainti ff's] ability to come back to court to reduce his alimony in the future." Regard ing a question involving former defense counsel's drafting of settlement agr eements in other matrimonial cases, she responded, "there does not necessarily ne ed 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 o f the MSA precluded him11 A- 2775

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from filing a motion to terminate or modify his ali mony obligation based on substantially changed circumstances. Plaintiff served a vocational expert report prepare d by Dr. Lynn Levine. In Dr. Levine's opinion, plaintiff attempted employ ment 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 repor t. 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' d aughter and defendant's sister, who certified defendant gave her cash after grocery shopping to

surre pti ti ously deposit into the sister's account. Defendant opposed the motion and filed a notice of cross-motion for summary judg ment seeking to deny plaintiff's motion in its entirety. Since discovery had been completed, the second jud ge expressed that a plenary hearing might be unnecessary if both counse l agreed that the pending

6 The record also shows the amount was as high as $38 ,509.83.12 A- 2775

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motions could be decided on the papers. The partie s dispute what occurred on this issue. On appeal, plaintiff's counsel contend s 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 m otions on the papers without conducting a plenary hearing. In any event, written submissions were provided to the second judge in June 2021 addressing all pen ding motions, and no plenary hearing was conducted. In his written statement of reasons, the second ju dge 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 fort h 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 plaintif f's alimony obligation "shall

continue and will not be terminated absent the occu rrence 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 ci rcumstances. But, the judge recognized plaintiff's motion to mo dify alimony was "somewhat less straightforward." During the discov ery phase of the case, the13 A- 2775

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judge considered the "probative evidence of the par ties' intentions" on the alimony modification issue stemmed from "revisions to the MSA exchanged between [former] counsel." The judge reviewed the d rafts to the MSA provided in discovery and concluded the evolution of the MSA drafts reflect ed the parties contemplated language that would have enabled plain tiff to seek a modification of his alimony obligation based upon changed circum stances, but "the parties agreed to omit that provision" from the MSA. The judge concluded modification of the agreed upon spousal support was solely limit ed to "retirement or disability." The judge acknowledged the MSA did not contain an express anti-Lepis clause and found Article II, paragraph 5 "was inten ded to be exhaustive" as to plaintiff's ability to "renegotiate" his alimony ob ligation. The judge acknowledged the "ambiguity" in the wording of the MSA, but nevertheless determined that Article II, paragraph 5 precludes p laintiff from seeking to modify his alimony obligation on the basis of unemp loyment and reduced

income. Citing Rule 4:46 -2(c), the judge granted defendant's cross-motion f or summary judgment, finding Article II, paragraph 5 w as "on its face ambiguous," but found "the evidence in the motion record provid ed a basis for him to14 A- 2775

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de termine the substantive issues," ordered plaintiff to resume paying $85,000 per year in alimony, and determined arrears were $1 75,382. 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 "ov er sixteen years later" based on defendant's sister's statement without any corro borating evidence to support her allegations. Given the "composition of the mar ital estate," the judge was unpersuaded that plaintiff's alimony obligation wou ld 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 pla intiff's request without prejudice and granted defendant's request in part. Th e 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. T his 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 inte nt of the parties is the main issue; (3) plaintiff's request to modify or terminate alim ony was grounded in equity and fairness; and (4) defendant has unclean hands.

II. The decision of the Family Part judge to modify ali mony is reviewed under an abuse of discretion standard. Larbig v. L arbig, 384 N.J. Super. 17, 21 (App. Div. 2006). "Whether an alimony obligation s hould be modified based upon a claim of changed circumstances rests within a Family P art judge's sound

discretion." Ibid. Each individual motion for modification is particul arized to the facts of that case, and "the appellate court mu st give due recognition to the wide discretion which our law rightly affords to th e trial judges who deal with these matters." Ibid. (quoting Martindell v. Marti ndell, 21 N.J. 341, 355 (1956)). As such, the appellate court may not disturb the Fa mily Part's decision on alimony unless it concludes that the Family Part "c learly abused its discretion, failed to consider all of the controlling legal pri nciples, or must otherwise be well satisfied that the findings were mistaken or t hat the determination could not reasonably have been reached on sufficient credible evidence present in the16 A- 2775

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record after considering the proofs as a whole." H einl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996). The same standard of review applies to a Family Par t'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. C o. of Am., 309 N.J. Super. 415, 420 (App. Div. 1998)). "Alimony is an 'economic right that arises out of t he marital relationship and provides the dependent spouse with "a level of support and standard of living generally commensurate with the quality of e conomic life that existed during the marriage."'" Quinn v. Qu inn , 225 N.J. 34, 48 (2016) (quoting Mani v. Mani, 183 N.J. 70, 80 (2005)). Alimony is gener ally set based on the mar ital standard of living and contemplates the "continued maintenance at the standard of living [the dependent spouse] had become accusto med to prior to the separation." Lepis, 83 N.J. at 150 (quoting Khalaf v. Khalaf, 58 N.J. 63, 6917 A- 2775

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(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 Arti cle II, paragraph 5 of the MSA was ambiguous and that he made a prima facie sh owing 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.'" Sta te 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 a nd the pursuit of justice. Ibid.

Prior decisions should be followed unless "there is substantially different evidence at a subsequent trial, new controlling aut hority, 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

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To modify an alimony obligation, a movant has the b urden of demonstrating a prima facie case of changed circums tances before the court orders discovery, full financial disclosure, or a p lenary 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 spo uses, and those obligations "are always subject to review and modification on a showing of changed

circumstances." The Court then listed multiple examples of sufficie nt changed circumstances that warrant modification: (1) an inc rease 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; a nd (7) changes in federal

tax law. Id. at 151. The party seeking modification must make a prima fa cie showing of changed circumstances that warrant modification. I d. 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 co urt may need to hold a hearing before19 A- 2775

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modifying support if it determines there are any ma terial facts in dispute. Id. at 159. Here, the parties' MSA did not contain an ant i-Lepis clause. "When [a] movant is seeking modification of an alim ony award, that party must demonstrate that changed circumstances have su bstantially 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 su pporting or supported spouse." Quinn , 225 N.J. at 49 (quoting J.B. v. W.B., 215 N.J. 30 5, 327 (2013)). A moving party "may make a prima facie showing of c hanged circumstances . . . by citing a combination of chan ges . . . 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 determina tion must be made by comparing the parties' financial circumstances at t he time the motion for relief

is made with the circumstances which formed the bas is 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 c hanged circumstances.20 A- 2775

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However, courts acknowledge that income earned thro ugh 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 'd iligent attention to . . . business.'" Id. at 420-21 (third alteration in ori ginal) (quoting Innes v. Innes , 117 N.J. 496, 503 (1990)). Plaintiff claims the second judge should have follo wed the first judge's order for a plenary hearing to be conducted to dete rmine the parties' intent on the issue of alimony when the MSA was negotiated an d executed to resolve ambiguities inherent in the MSA. The discovery exchanged and written deposition questions and answers provided by the pa rties' former attorneys illuminate there is a genuine issue of material fac t as to whether plaintiff waived his right to seek a modification or termination of his alimony obligation. Moreover, plaintiff's prior counsel represented tha t 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 conse nt order may reasonably limit the circumstances that may qualify as "change d" 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 and21 A- 2775

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MSA contains language barring defendant from seekin g 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 affi davits show that there is a genuine issue of material fact." Murphy v. Mu rphy, 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 tha t "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[,] ... irres pective of circumstances that in the usual case would give rise to Lepis modificatio ns of their agreement. " Morris v. Morris, 263 N.J. Super. 237, 241 (App. Di v. 1993)

. The Family Part will not unnecessarily or lightly disturb such arra ngements if the arrangements are "fair and definitive." Quinn , 225 N.J. at 44 (quoting Konzelman v. Konz elman, 158 N.J. 185, 193-94 (1999)).22 A- 2775

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1 established that plaintiff's obligation to mainta in life insurance is "subject to modification when alimony is received," which he co ntends 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 Agreemen t." Thus, the parties arguably intended for the "substantial change of ci rcumstances" test to apply to both of them in the context of their alimony agreem ent, warranting a plenary hearing. In addition, Article II, paragraph 5 provides that payments may be "renegotiated" based on plaintiff's retirement or d isability but does not address

when or if he could seek a "modification" or "termi nation" of his alimony and related obligations. One implication of this omiss ion is it was intentional. The drafters chose to mention one circumstance specific ally, 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) (appl ying the principle of inclusion unius est exclusion alterius, which means the inclu sion of one excludes the other). This provision of the MSA does not explicitly ident ify that plaintiff's23 A- 2775

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alimony obligation is non-modifiable in the event o f his changed financial circumstances or mention an express waiver of the m odification rights granted by Lepis, 263 N.J. Super. at 240. Acceptance of th e second judge's interpretation requires an overall application of A rticle 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 i s necessary even in the

absence of the law- of

- the -case doctrine to discern whether the parties exerc ised an informed waiver of the right to modify the amoun t 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 a ttorneys who negotiated the MSA. The actual testimony of the parties, their former at torneys, and any other witnesses subject to cross-examination would ferret out the parties' understanding and intention. See 5 Wigmore, Eviden ce , § 1367 at 32 (Chadbourne ed. 1974) ("cross-examination is beyond any doubt the greatest legal engine ever invented for the discovery of tru th."). We remain mindful that plaintiff bears the burden o f proving the parties' intent. Pacifico, 190 N.J. at 269. Further, if fo llowing the plenary hearing, the24 A- 2775

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judge concludes modification of the amount of alimony wa s not barred by the MSA, there remains a need to evaluate the parties' r espective 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 pr eclude 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 addre ss plaintiff's additional arguments. Accordingly, we rev erse the April 21, 2022 order, vacate the counsel fee award, and remand for a plenary hearing consist ent with the reasons expressed in our opinion. Reversed, vacated, and remanded. We do not retain jurisdiction.