SHELLEY FREYDONT VS. RICHARD M. LENCHNER (FM-02-1384-04, BERGEN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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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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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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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"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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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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