                                NOT FOR PUBLICATION WITHOUT THE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-6046-17T1

SHELLEY FREYDONT,

          Plaintiff-Respondent,

v.

RICHARD M. LENCHNER,

     Defendant-Appellant.
___________________________

                    Argued September 23, 2019 – Decided October 2, 2019

                    Before Judges Fasciale and Moynihan.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Bergen County,
                    Docket No. FM-02-1384-04.

                    William John Heimbuch argued the cause for appellant
                    (Heimbuch & Solimano, PC, attorneys; William John
                    Heimbuch, on the brief).

                    Jacqueline M. Dugan argued the cause for respondent
                    (November & Nunnink, LLC, attorneys; Jacqueline M.
                    Dugan, on the brief).

PER CURIAM
      In this post-divorce matrimonial case, defendant Richard M. Lenchner

appeals from a July 19, 2018 order denying his motion to suspend or modify his

alimony obligation to plaintiff Shelley Freydont. Judge Avis Bishop-Thompson

conducted oral argument, at which she swore in the parties. After argument, the

judge denied the motion, entered the order, and rendered an oral opinion. We

affirm.

      The parties were married for approximately nineteen years and have two

children together. The children are now adults and emancipated. In October

2004, and as part of the final divorce judgment, the parties entered into a

property settlement agreement (PSA), which required defendant to pay plaintiff

$35,000 in alimony annually.         The parties negotiated that amount in

consideration of defendant's $140,000 salary. The PSA stated defendant "shall

only be permitted to seek a reduction in his alimony obligation based upon an

involuntary change in his job status."

      In 2013, the parties entered into a consent order (CO), which increased

defendant's annual alimony obligation by $4,000. The CO's practical effect

eliminated yearly reviews of defendant's income, which plaintiff certified had

been a struggle. Importantly, the CO did not obviate defendant's obligation

under the PSA to demonstrate, as a precondition to a downward modification of


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his alimony obligation, an "involuntary change in his job status." Since entering

into the CO, defendant filed three motions seeking to suspend his alimony

obligation.

      Defendant filed his first motion in February 2017, certifying that his then

employer terminated his position in August 2016.         Plaintiff certified that

defendant obtained a new job earning $150,000 while his motion was pending.

Plaintiff asserted defendant neglected to disclose his new employment. The

judge found that defendant failed to demonstrate changed circumstances and

denied the motion. Defendant did not seek reconsideration or interlocutory

review of the order denying the first motion.

      In October 2017, defendant filed his second motion. Defendant certified

that although he accepted a new position – earning $150,000 – his new employer

terminated him in June 2017.       The judge who heard the second motion

questioned whether the termination was involuntary. And, before denying the

motion, that judge gave defendant the opportunity to "confirm the nature of the

termination[.]" According to that judge, "[d]efendant opted not to address the

[c]ourt's concern."   He then found that defendant failed to show that the

termination was involuntary and denied defendant's motion.        Like the first




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motion, defendant did not seek reconsideration or interlocutory review of the

order.

         In May 2018, defendant filed his third motion, which led to the order under

review. Defendant provided no further explanation about whether his previous

employment termination was involuntary. Plaintiff – who at the time was sixty-

eight-years old – opposed the motion by emphasizing the PSA's language. She

maintained that the PSA required defendant to show his job status was

involuntary. Plaintiff also pointed out that defendant's income in 2015 was

$251,165, which was substantially more than the $160,000 threshold income

that the parties used when entering into the CO. Assuming defendant could

show that the termination was involuntary, plaintiff contended that he did not

look for replacement work in good faith.

         At oral argument, Judge Bishop-Thompson questioned defendant's

counsel about his employment termination. Counsel responded that defendant

"had a contentious relationship with the owner." Notwithstanding whether the

termination was involuntary, the judge emphasized that defendant had an

obligation to find work. The judge also questioned defendant's good faith efforts

to find work. After examining defendant's log of his efforts, the judge found

that defendant sought employment only when he made a motion to reduce his


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                                          4
alimony obligation. She concluded that defendant had not established changed

circumstances and denied the motion.

      On appeal, defendant argues that the judge misapplied the law. He also

asserts that the judge abused her discretion by not finding changed

circumstances warranting relief or a full plenary hearing.          As to the

misapplication of the law, defendant contends the judge failed to apply N.J.S.A.

2A:34-23(k), specifically (k)(9) – addressing the possibility of a temporary

remedy pending continuing employment investigations.

      Alimony "may be revised and altered by the court from time to time as

circumstances may require."     N.J.S.A. 2A:34-23.    A showing of "changed

circumstances" is required to modify an alimony obligation. Lepis v. Lepis, 83

N.J. 139, 146 (1980). "Whether an alimony obligation should be modified based

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

discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). Each

individual motion for modification is fact-sensitive, 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)). We will not disturb the trial court's

decision on alimony unless we


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                                       5
            conclude that the trial court 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 record after considering the
            proofs as a whole.

            [Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div.
            1996).]

      Although N.J.S.A. 2A:34-23(k) became effective on September 10, 2014,

its application to provisions of pre-existing orders and agreements – like the

PSA – is guided by the bill adopting the alimony amendments. The bill adds a

provision that declares the new law non-retroactive with respect to certain prior

judicial orders and alimony agreements. See Spangenberg v. Kolakowski, 442

N.J. Super. 529, 538 (App. Div. 2015). The bill states:

            This act shall take effect immediately and 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.

            [L. 2014, c. 42, § 2.]

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                                        6
"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, 442 N.J. Super. at 538. That is exactly

what the judge did here.

      The parties incorporated the PSA language – which contains bargained for

contractual provisions – into the final judgment of divorce. The parties agreed

that defendant could only seek alimony modification if he could make a prima

facie showing of an "involuntary change in his job status."

      Two judges concluded that defendant failed to make a prima facie

showing. The first judge explicitly gave defendant time to "confirm the nature

of the termination[,]" but "[d]efendant opted not to address the [c]ourt's

concern." Judge Bishop-Thompson specifically remarked that the voluntariness

issue remained unresolved, even though the earlier judge found that

"[d]efendant's [r]eply [c]ertification was unclear whether [d]efendant's

[employment] termination . . . was voluntary or involuntary."

      Our Supreme Court recognized that "[p]arties to a divorce action may

enter into voluntary agreements governing the . . . terms . . . of alimony[.]"

Quinn v. Quinn, 225 N.J. 34, 48 (2016).       "Agreements between separated

spouses executed voluntarily and understandingly for the purpose of settling the

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                                       7
issue of [alimony and child support] are specifically enforceable, but only to the

extent that they are just and equitable." Ibid. (citation omitted) (alteration in

original). Here, defendant has not argued that the PSA is unjust or inequitable.

Rather, he contends that his termination was involuntary, and that he has shown

changed circumstances.

      We have no reason to disturb the findings that defendant failed to address

whether his termination was involuntary. Thus, he was unable to meet the

condition imposed by the PSA. Nevertheless, the judge found that defendant

did not demonstrate changed circumstances. And the judge questioned whether

defendant acted in good faith to find replacement work. We decline to disturb

this finding, and conclude that the judge did not abuse her discretion by not

conducting a full plenary hearing. If warranted, defendant is always free to

make another motion to modify his alimony obligation.

      Affirmed.




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