NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1160-15T3
MARY SIGNORE, n/k/a MARY
MARTINI,
Plaintiff-Respondent,
v.
RONALD SIGNORE,
Defendant-Appellant.
___________________________
Argued December 13, 2016 – Decided February 3, 2017
Before Judges Fasciale and Gilson.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen
County, Docket No. FM-02-149-04.
Robert T. Corcoran argued the cause for
appellant (Robert T. Corcoran, P.C.,
attorneys; Mr. Corcoran and Kevin W. Ku, on
the brief).
Dale C. Krouse argued the cause for
respondent.
PER CURIAM
In this post-divorce judgment matter, defendant Ronald
Signore appeals from an October 26, 2015 order denying without
prejudice his motion to terminate or reduce his alimony
obligation. We reverse and remand because the Family Part did
not afford oral argument and did not consider and make findings
concerning the factors enumerated in N.J.S.A. 2A:34-23(k).
I.
The parties were married in 1986 and divorced in 2004.
They have two children, both of whom are emancipated. The
parties resolved the issues concerning their divorce through
agreement. Thus, the terms of their divorce were incorporated
into a final judgment of divorce (JOD), with attached custody
and parenting time agreement and delineation of the equitable
distribution of their assets. The JOD was entered on June 28,
2014.
With regard to alimony, the JOD provided that defendant
would pay plaintiff, Mary Signore, $769 per week in "permanent
alimony." The JOD also provided: "Payment of alimony/spousal
support shall be made by the defendant to the plaintiff until
the death of either party, the remarriage of the plaintiff, or
for any other reasons or circumstances as allowed by the Laws of
the State of New Jersey for the termination of alimony/spousal
support." At the time of the divorce, defendant was a partner
in an accounting firm. The JOD stated that the alimony "is
based upon the defendant earning approximately $160,000 per
annum, and $37,500 per annum imputed income to the plaintiff."
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In December 2012, defendant left his accounting practice to
become the chief financial officer (CFO) at an organization in
Brooklyn, New York. In 2015, defendant's annual salary at that
organization was $300,560. In April 2015, defendant was
terminated from his position as the CFO of that organization.
Thereafter, he collected $420 per week in unemployment benefits
for ten weeks. In July 2015, defendant began working as a
controller of a limited liability company. His annual salary at
that company is $50,000.
Defendant also operates Ronald C. Signore, LLC, an
accounting business, jointly with his current wife. In 2014,
the accounting business earned a profit of just over $39,000,
and defendant claimed just over $19,000 is income attributable
to him.
On August 24, 2015, defendant filed a motion seeking to
modify or terminate his alimony obligation. He supported his
motion with a certification and a current case information
statement (CIS). In his certification, defendant contended that
plaintiff's income had increased. He claimed that she is
currently employed as a controller and earns a gross annual
income of $52,000. Defendant also alleged that plaintiff's
expenses have decreased since their children are now
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emancipated. In his notice of motion, defendant requested a
plenary hearing and oral argument.
Plaintiff opposed the motion, and cross-moved to compel
defendant to pay his alimony arrears. In her certification in
opposition to defendant's motion, plaintiff contended that her
lifestyle has not improved. To the contrary, she asserted that
she was "forced" to sell the former marital home. She also
points out that although her annual salary is $52,000, she has
to pay for health insurance, which leaves her with an adjusted
gross income of just over $43,000 per year. Plaintiff also
certified that she has "multiple medical issues."
The Family Part did not hear oral argument on the motion or
cross-motion, nor did the court conduct a plenary hearing.
Instead, the Family Part decided the motion and cross-motion on
the papers, issuing an order dated October 26, 2015, with an
accompanying "Motion Disposition Sheet." In the order, the
Family Part denied without prejudice defendant's motion to
modify his alimony obligation. The court also granted
plaintiff's cross-motion to compel defendant to pay all of his
alimony arrears, which at that time was $9335. The court also
denied without prejudice defendant's request for a plenary
hearing, plaintiff's request for a warrant for defendant's
arrest, and both parties' request for counsel fees and costs.
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In the accompanying disposition sheet, the Family Part
reasoned that defendant had failed to demonstrate a "prima facie
showing of changed circumstances" under Lepis v. Lepis, 83 N.J.
139 (1980). In that regard, the court explained that at the
time the JOD was entered, defendant was earning $160,000 per
year, and his earnings in 2015 were over $165,000. The Family
Part did not mention or discuss the 2014 amendments to the
alimony statute set forth in N.J.S.A. 2A:34-23.
II.
On appeal, defendant argues that the Family Part erred (1)
in failing to grant oral argument on his motion; and (2) in
failing to consider the factors set forth in N.J.S.A. 2A:34-
23(k). We are constrained to remand because the Family Part did
not consider the applicable amendments to the alimony statute.
Our review of orders entered by the Family Part is
generally deferential. Landers v. Landers, 444 N.J. Super. 315,
319 (App. Div. 2016) (citing Gnall v. Gnall, 222 N.J. 414, 428
(2015)). Nevertheless, "when reviewing legal conclusions, our
obligation is different; '[t]o the extent that the trial court's
decision constitutes a legal determination, we review it de
novo.'" Id. at 319 (alteration in original) (quoting D'Agostino
v. Maldonado, 216 N.J. 168, 182 (2013)). Moreover, the Family
Part, like all trial courts, is required to explain the reasons
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for its decision to ensure meaningful appellate review. See R.
1:7-4; Elrom v. Elrom, 439 N.J. Super. 424, 443 (App. Div.
2015).
Alimony may be revised and altered by the court from time-
to-time as circumstances may require. N.J.S.A. 2A:34-23. In
September 2014, the Legislature amended the alimony and
maintenance statute, N.J.S.A. 2A:34-23, "to more clearly
quantify considerations examined when faced with a request to
establish or modify alimony." Spangenberg v. Kolakowski, 442
N.J. Super. 529, 536-37 (App. Div. 2015). The amendment became
effective September 10, 2014. L. 2014, c. 42, § 1. The
Legislature, however,
clarified that [the amendments] "shall not
be construed either to modify the duration
of alimony ordered or agreed upon or other
specifically bargained for contractual
provisions that have been incorporated into:
a. a final judgment of divorce or
dissolution; b. a final order that has
concluded post-judgment litigation; or c.
any enforceable written agreement between
the parties."
[Quinn v. Quinn, 225 N.J. 34, 51 n.3 (2016)
(quoting L. 2014, c. 42, § 2).]
"This additional statement signals the legislative recognition
of the need to uphold prior agreements executed or final orders
filed before adoption of the statutory amendments."
Spangenberg, supra, 442 N.J. Super. at 538.
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The JOD here was entered before the September 10, 2014
amendments to N.J.S.A. 2A:34-23 became effective. Nevertheless,
the JOD does not include any provision prohibiting the
modification of alimony. Instead, the JOD here stated: "Payment
of alimony/spousal support shall be made by the defendant to the
plaintiff until the death of either party, the remarriage of the
plaintiff, or for any other reason or circumstances as allowed
by the Laws of the State of New Jersey for the termination of
alimony/spousal support."
Defendant filed his motion for modification in August 2015,
following the effective date of the amendments to the alimony
statute. The parties' JOD provided that alimony could be
terminated, and by logical extension modified, "as allowed by
the Laws of the State of New Jersey." Consequently, the
relevant portions of the amendments to N.J.S.A. 2A:34-23 should
have been applied to defendant's motion to modify or terminate
his alimony obligation.
Under the amendments to N.J.S.A. 2A:34-23, subsection (k)
provides that
[w]hen a non-self-employed party seeks
modification of alimony, the court shall
consider the following factors:
(1) The reasons for any loss of income;
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(2) Under circumstances where there has
been a loss of employment, the obligor's
documented efforts to obtain replacement
employment or to pursue an alternative
occupation;
(3) Under circumstances where there has
been a loss of employment, whether the
obligor is making a good faith effort to
find remunerative employment at any level
and in any field;
(4) The income of the obligee; the
obligee's circumstances; and the obligee's
reasonable efforts to obtain employment in
view of those circumstances and existing
opportunities;
. . . .
(7) Any changes in the respective financial
circumstances of the parties that have
occurred since the date of the order from
which modification is sought;
(8) The reasons for any change in either
party's financial circumstances since the
date of the order from which modification is
sought, including, but not limited to,
assessment of the extent to which either
party's financial circumstances at the time
of the application are attributable to
enhanced earnings or financial benefits
received from any source since the date of
the order;
(9) Whether a temporary remedy should be
fashioned to provide adjustment of the
support award from which modification is
sought . . ."; and
(10) Any other factor the court deems
relevant to fairly and equitably decide the
application.
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[N.J.S.A. 2A:34-23(k).]
Where, as here, a non-self-employed party moves for a reduction
of alimony based upon an "involuntary loss of employment," the
court "shall not" only consider "the length of time [the] party
has been involuntarily unemployed or has had an involuntary
reduction in income" but instead is required to "determine the
application based upon all of the enumerated factors." N.J.S.A.
2A:34-23(k).
Here, the Family Part did not cite to or consider any of
the factors enumerated in N.J.S.A. 2A:34-23(k). We are,
therefore, constrained to remand the matter so that the court
can consider all of the factors identified in N.J.S.A. 2A:34-
23(k) in determining whether defendant demonstrated a
significant change in circumstances to warrant a plenary hearing
on his motion to modify or terminate his alimony obligation.
On remand, the court should also consider and make findings
in accordance with Rule 1:7-4 concerning defendant's contentions
that he was entitled to a modification or termination of his
alimony obligation. Given that the parties have disputed
certain facts in the certifications they have filed, a plenary
hearing may well be necessary.
Because we are remanding the matter for the court to make
the requisite findings under Rule 1:7-4 as to the enumerated
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factors under N.J.S.A. 2A:34-23(k), it is not necessary for us
to address defendant's contention that the court erred in
denying him oral argument. We note, however, that the better
practice is to afford parties oral argument when such a request
was made. See R. 5:5-4(a) (providing that a court should
ordinarily grant requests for oral argument on "substantive"
motions); Palombi v. Palombi, 414 N.J. Super. 274, 285 (App.
Div. 2010) ("The denial of oral argument when a motion has
properly presented a substantive issue to the court for decision
'deprives litigants of an opportunity to present their case
fully to a court.'" (quoting Mackowski v. Mackowski, 317 N.J.
Super. 8, 14 (App. Div. 1998))).
Reversed and remanded for further proceedings in accordance
with this opinion. We do not retain jurisdiction.
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