ANNA BERMEO VS. MARIO BERMEO (FM-13-1076-14, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1312-17T1

ANNA BERMEO,

Plaintiff-Appellant, APPROVED FOR PUBLICATION

v. November 21, 2018

APPELLATE DIVISION
MARIO BERMEO,

Defendant-Respondent.
__________________________

Submitted October 23, 2018 – Decided November 21, 2018

Before Judges Fisher, Geiger and Firko.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FM-13-1076-14.

Ansell, Grimm & Aaron, PC, attorneys for appellant
(Donna L. Maul, of counsel and on the briefs).

Jeffrey R. Brown, attorney for respondent.

The opinion of the court was delivered by

FIRKO, J.S.C. (temporarily assigned)
 Plaintiff appeals from an order denying her post-judgment motion to

modify the parties' Property Settlement Agreement (PSA) 1 to increase her

alimony payments, establish the marital lifestyle, and for counsel fees. 2 We

affirm.

I.

Plaintiff and defendant were married in 1986. They had two children,

who were both emancipated at the time of divorce. Prior to trial, the parties

reached a settlement, and a prior judge entered a final judgment of divorce

incorporating their PSA on June 24, 2015, that provided:

Effective June 1, 2015, [defendant] shall pay to
[plaintiff] the sum of $4,000[] per month in taxable
alimony based on his annual gross imputed enhanced
base income of $160,000[] per year agreed upon for
alimony purposes. As additional alimony to
[plaintiff], [defendant] shall allocate to [plaintiff] and
pay her, effective June 1, 2015, the following
percentages of all supplemental compensation income
referred to as gross enhanced income, including but
not limited to gross commissions, bonuses, deferred
compensation, stock options and incentives, on the
following graduated scale, above $160,000[].

1
Judge Angela White Dalton refers to the PSA as an MSA. The parties'
agreement was referred to as both in the record. To obviate any confusion, we
refer to the agreement as "PSA."
2
These are the pertinent issues on appeal. Other issues are either moot or
abandoned.

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 Supplemental compensation of [defendant] payable as
additional alimony to [plaintiff]:

a. 35% of gross enhanced income earned by or
awarded to [defendant] between $160,000[] and
$300,000[];

b. 30% of gross enhanced income between $300,000[]
and $480,000[]; and

c. 25% of gross enhanced income from $480,000[]-
$550,000[]. Any gross enhanced income in the form
of commissions, bonuses, deferred compensation,
stock options and incentives earned above $550,000[]
will belong to [defendant] free of any claim of
[plaintiff].

Pertinently, the parties' PSA also provided:

Neither party shall be able to maintain a similar
lifestyle to that which was enjoyed during the
marriage; which lifestyle involved significant regular
savings, yet they each desire to nonetheless enter into
this support arrangement. The parties have been
explained the cases of Crews v. Crews,[3] and Lepis v.
Lepis,[4] and understand that support is reviewable to
the court upon application of either party and a
showing of substantially changed financial
circumstances . . . The parties freely and voluntarily
waive determination of the joint marital lifestyle at
this time.

[(emphasis added).]

3
164 N.J. 11 (2000).
4
83 N.J. 139 (1980).

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 Plaintiff's income was imputed at $25,000 per year even though she

earns $6,000 per year working as a receptionist at a gym. She sought an

alimony increase to $6,000 per month based upon a requested new "imputed

annual income" of $220,000 to defendant, which she argues is far less than his

prior average annual income of $467,100 for years 2010-2013. The PSA

recognized defendant recently changed his employment, and calculated income

for alimony purposes on his prior five year earnings history. When the divorce

judgment was entered, defendant started a new job at Cantor Fitzgerald as a

foreign trader. His base salary was $120,000 annually. As a result of

declining compensation and anticipated layoffs, defendant resigned from his

former employment at New Edge, U.S., reasoning that a reduced income was

preferable to no income, as he felt termination from his former employer was

imminent.

Plaintiff argued that she is entitled to an increase to $6,000 per month in

alimony because defendant is "voluntarily underemployed," and she "had the

reasonable expectation of receiving supplemental alimony, based on the

breadth and depth of [defendant's] express[ions] in the PSA." She further

asserts that she cannot maintain the upper middle class lifestyle she enjoyed

during the marriage; her income is modest because she was a stay-at-home

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mother; and an analysis pursuant to Crews was not conducted by the judge

who granted the divorce.

Defendant argues that when the divorce was granted, plaintiff agreed to

the alimony provisions and his imputed income despite his disclosure of new

employment and lower earnings. He argues that the PSA acknowledges this,

and based alimony on his prior five year earnings history. Defendant

emphasizes that the PSA provides: "Neither party shall be able to maintain a

similar lifestyle to that which was enjoyed during the marriage." Voluntarily,

he agreed to pay more alimony than what he thought was necessary since he

was only earning $120,000 and not the imputed amount of $160,000 annually.

After hearing oral argument, the motion judge issued an October 3, 2017

order and eight-page statement of reasons denying the aspects of plaintiff's

motion which are the subject of this appeal.

II.

Plaintiff raises the following arguments on appeal:

POINT I

THE TRIAL COURT ERRED IN DENIAL OF
ALIMONY MODIFICATION, AND A FINDING OF
SUBSTANTIALLY CHANGED CIRCUMSTANCES
BY THE FAULTY DETERMINATION THAT
[PLAINTIFF] WAS NOT ENTITLED TO RETURN
TO COURT FOR MODIFICATION OF HER BASE
ALIMONY, IF THE SUPPLEMENTAL ALIMONY
PAYMENTS WERE NOT RECEIVED.

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 POINT II

THE TRIAL COURT WAS OBLIGATED UPON
FILING OF A MODIFICATION MOTION TO
ESTABLISH THE MARITAL LIFESTYLE AND
THE FINDINGS OF THE COURT NEVER
ADDRESSED THAT ISSUE IN THE ORDER
UNDER APPEAL, EVEN WHERE ALIMONY IS
ESTABLISHED BY CONSENSUAL AGREEMENT.

POINT III

THE DENIAL OF APPELLANT'S APPLICATION
TO REQUIRE AN INCREASE IN BASE ALIMONY
AS A RESULT OF [DEFENDANT'S] FAILURE TO
RETURN TO ANY SEMBLANCE OF HIS
HISTORICAL EARNINGS DURING THE
MARRIAGE WAS CLEAR ERROR AND
REWARDS [DEFENDANT] FOR HIS
MALFEASANCE IN WANTONLY ABANDONING
STABLE LUCRATIVE EMPLOYMENT DURING
THE DIVORCE PROCEEDING.

We have considered plaintiff's arguments in light of the record and

applicable law, and are not persuaded by them. We affirm substantially for the

reasons expressed by Judge Angela White Dalton in her comprehensive

statement of reasons and we add the following comments.

"[W]hile settlement is an encouraged mode of resolving cases generally,

'the use of consensual agreements to resolve marital controversies' is

particularly favored in divorce matters." Weishaus v. Weishaus, 180 N.J. 131,

143 (2004) (quoting Konzelman v. Konzelman, 158 N.J. 185, 193 (1999)).

Spousal agreements "are essentially consensual and voluntary in character and

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therefore entitled to considerable weight with respect to their validity and

enforceability notwithstanding the fact that such an agreement has been

incorporated in a judgment of divorce." Petersen v. Petersen, 85 N.J. 638, 642

(1981). "For these reasons, 'fair and definitive arrangements arrived at by

mutual consent should not be unnecessarily or lightly disturbed.'" Konzelman,

158 N.J. at 193-94 (quoting Smith v. Smith, 72 N.J. 350, 358 (1977)).

Courts have continuing power to oversee divorce agreements, and the

discretion to modify them on a showing of changed circumstances that render

their continued enforcement unfair, unjust and inequitable. Konzelman, 158

N.J. at 194 (citing Lepis, 83 N.J. at 154-55). Furthermore, a movant is entitled

to a plenary hearing only when demonstrating the existence of a genuine issue

of material fact entitling the party to relief through competent supporting

documents and affidavits. Lepis, 83 N.J. at 159; Eaton v. Grau, 368 N.J.

Super. 215, 222 (App. Div. 2004).

We find no abuse of discretion by the motion judge in ruling on

plaintiff's motion without ordering discovery or a plenary hearing. "Every

application for alimony or increased alimony rests upon its own particular

footing and the appellate court must give due recognition to the wide

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

matters." Martindell v. Martindell, 21 N.J. 341, 355 (1956); Spangenberg v.

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Kolakowski, 442 N.J. Super. 529, 536 (App. Div. 2015). For the court to

reverse a trial court's decision on whether to modify alimony:

[we] must conclude that the trial court clearly abused
its discretion, failed to consider "all of the controlling
legal principles," or [we] must otherwise be "well
satisfied that the finding[s] [were] mistaken," or that
the determination could not "reasonably have been
reached on sufficient credible evidence present in the
record after consideration of the proofs as a whole."

[Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App.
Div. 1993) (internal citations omitted).]

We find no such abuse of discretion by the trial court.

III.

In addressing Point I on this appeal, no evidence was proffered by

plaintiff that defendant is voluntarily underemployed, or that he has concealed

his true income from her, warranting an increase in alimony so that the

"supplemental compensation" contemplated in the PSA is realized; or that

discovery, including an employment evaluation, is necessary. Plaintiff

voluntarily entered into a well-negotiated PSA. There is no allegation that she

was ill, or under the influence of intoxicants during negotiation of the PSA.

Defendant did not subject her to duress, coercion, or threats. He did not

conceal or fail to disclose his income. At the time of divorce, defendant was

already earning $120,000 annually, and plaintiff was made aware of his

reasons for leaving New Edge, U.S., which she had the opportunity to

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challenge by going to trial. Instead, she agreed to the PSA terms. The motion

judge aptly noted that the court "cannot simply impute income based on

history when that history was considered in the drafting of the [P]SA." Given

these circumstances, we see no legal or equitable basis to modify alimony.

IV.

Turning to plaintiff's argument in Point II, the motion judge did not err

by declining to address marital lifestyle because the PSA unequivocally states

at paragraph ten: "The parties freely and voluntarily waive determination of

the joint marital lifestyle at this time." There was no obligation for the motion

judge to conduct a Crews analysis post-judgment, especially given the recent

settlement. Such a determination was not reserved in the PSA. We find no

abuse of discretion. We note that plaintiff was represented by counsel in the

negotiation of the PSA. She testified that she understood the terms of the

agreement. Her assertion that defendant should be earning more because he

had a "far greater income" during the marriage is without merit because she

has not demonstrated substantially changed circumstances. As duly found by

the motion judge: "The parties entered in[to] their agreement with a set base

alimony figure and this court [cannot] find reason to disturb it." We agree.

Consequently, a Crews analysis was not warranted here.

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 V.

Turning to the last point of plaintiff's appeal, the record aptly supports

the motion judge's conclusion that it would be improvident to now impute

income to defendant of $220,000 per year, which is less than the $300,000 to

$500,000 he earned during the marriage. The motion judge correctly found

that imputing income is a "discretionary matter not capable of precise or exact

determination but rather requiring a trial judge to realistically appraise

capacity to earn and job availability." Gnall v. Gnall, 432 N.J. Super. 129, 158

(App. Div. 2013), rev'd on other grounds, 222 N.J. 414 (2015) (quoting Storey

v. Storey, 373 N.J. Super 464, 474 (App. Div. 2004)). Defendant provided a

pay stub confirming his annual income at approximately $120,000. Plaintiff's

proofs validate this amount because defendant's employer reported to her that

all 401(k) contributions are reported on the W-2 statement. As noted by the

motion judge: "While it would appear from the [PSA] that both parties hoped

[defendant] would get back to those higher earnings, the court cannot change

the fact that it has not." Moreover, we are mindful that defendant has

complied with the alimony provisions set forth in the PSA even though he has

not earned the imputed $160,000 floor. As a court of equity, the motion judge

aptly pointed out that, "[i]t would be unthinkable for defendant to ask the court

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to reduce his alimony based on changed circumstances because he has not

earned $160,000 per year since the divorce." We agree.

Plaintiff did not make a prima facie showing of changed circumstances

following the entry of the final judgment of divorce. The motion judge's

findings are supported by the record. Discovery and a plenary hearing were

not required.

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

find them without sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(1)(E).

Affirmed.

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