GREGORY VISCONTI VS. LISA VISCONTI (FM-14-0005-12, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-1743-16T2
GREGORY VISCONTI,
Plaintiff-Appellant,
v.
LISA VISCONTI,
Defendant-Respondent.
____________________________
Argued January 15, 2019 – Decided April 4, 2019
Before Judges Rothstadt and Natali.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FM-14-0005-12.
Vincent P. Celli argued the cause for appellant (Celli,
Schlossberg, De Meo & Giusti, PC, attorneys; Vincent
P. Celli, on the brief).
Respondent has not filed a brief.
PER CURIAM
Plaintiff Gregory Visconti appeals from two November 18, 2016 Family
Part orders that denied modification of his alimony and child support obligations
prior to August 2015 pursuant to the parties' Property Settlement Agreement
(PSA), but modified his alimony obligation effective August 1, 2015, and
referred "[a]ll other items of relief" to a post-judgment early settlement panel.
On appeal, plaintiff argues that the court did not satisfy its obligation under Rule
1:7-4 because it failed to set forth adequate findings of fact or conclusions of
law. We affirm in part, vacate in part, and remand.
I.
On July 9, 2007, the court entered a Final Judgment of Divorce (JOD),
which dissolved plaintiff and defendant Lisa Visconti's marriage of twenty-two
years and incorporated their PSA. Under Article Two of the PSA, entitled
"Alimony/Maintenance," the parties agreed that "they enjoyed a middle class
lifestyle predicated upon the income of [plaintiff] during the marriage." Article
Two further provided that in light of the parties' respective needs and expenses,
abilities to earn income, ages and health, and assets "including the distribution
of equity as set forth" in the PSA, "the support payable to [defendant] shall
provide both parties with the ability to substantially maintain the current
lifestyle."
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Plaintiff agreed to pay defendant $4000 per month in permanent alimony,
based on plaintiff's "gross annual income," which "varie[d] from year to year"
between "$110,000 . . . and $160,000," and defendant's "capacity to earn income
of approximately $15,000 . . . per year." The parties further agreed plaintiff's
alimony payments would terminate upon the death of either party, defendant's
remarriage, or defendant's cohabitation with an unrelated person for a period of
thirty days or more.
In addition, plaintiff reserved the right to move for modification or
termination of alimony in anticipation of, or upon, his retirement. Article Two
also provided that plaintiff's alimony obligation was subject to modification or
termination "upon a change in financial circumstances of either party," but that
"[a]limony shall not be amended by offset or modification until after August 1,
2015 . . . ."
In Article Three, entitled "Equitable Distribution," the parties agreed that
"[i]n exchange for the other equities" in the PSA, defendant would be "the sole
and exclusive owner" of the marital home, which had an estimated market value
of $860,000, and that she would "be free to transfer or sell this property at any
time she deems appropriate." The parties further agreed that plaintiff would
remain "the sole and exclusive" owner of certain investment property, which
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also had a market value of $860,000. At the time, mortgages encumbered both
properties.
Article Six required plaintiff to pay defendant $850 per month, per child ,
in child support for the parties' two youngest children. 1 Although child support
would terminate upon emancipation, plaintiff agreed to extend child support for
the two youngest children until August 15, 2015, and further agreed that he
would "not seek a modification of child support provided for herein." Article
Six required plaintiff to pay all college expenses, "including tuition, books,
[and] fees" for all three children.
Four years after the divorce, defendant sold the marital property and
moved from New Jersey to Florida. Six months later, on January 5, 2012,
plaintiff filed a motion seeking fifteen prayers for relief, including modification
of his child support and alimony obligations, claiming defendant's move to
Florida and a "drastic decline in his annual income" were substantial changes in
circumstances that warranted modification of the PSA.
1
The parties' third, eldest child was twenty-years old at the time of the divorce,
and the parties agreed plaintiff would not pay child support for that child as
plaintiff was "exclusively funding th[at] child's college costs, her automobile,
[and] her living expenses."
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On April 25, 2012, the court heard plaintiff's motion and defendant's
cross-motions to enforce litigant's rights, and to appoint a forensic accountant
to review plaintiff's financial records. The judge found both defendant's
relocation to Florida and "plaintiff's loss of business or financial position" were
"a substantial change of circumstance." However, the court denied plaintiff's
applications to modify his alimony and child support obligations at that time,
but did so "without prejudice" and "subject to discovery and economic mediation
and potentially a plenary hearing if it's not resolved." The court also stated it
would grant "a period of discovery pending a plenary hearing to determine if
there has been a substantial permanent change in circumstances."
To memorialize its oral decisions, the court entered two orders on April
25, 2012, which: deemed defendant's move to Florida and plaintiff's loss of
business to be substantial changes of circumstances; ordered plaintiff to advance
"an initial $10,000.00 retainer" to defendant's counsel "for [d]efendant's counse l
fees and costs of representation for the discovery process and plenary hearing";
"adjudicated [plaintiff] to be in violation of litigant's rights for his failure to pay"
several items required by the PSA; and denied defendant's remaining prayer's
for relief without prejudice.
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There was no further motion practice until November 7, 2013, when
defendant filed another motion to enforce plaintiff's support obligations,
asserting he was in arrears of $38,000 in alimony and $29,000 in child support.
Plaintiff opposed the motion and claimed his "primary source of income ha[d]
been destroyed by insurance companies and Obamacare" and his "office was
destroyed in Hurricane Sandy."
Four months later, after hearing oral arguments on the November 7, 2013
motions, the same motion judge who issued the earlier orders entered an order
on March 21, 2014, which appointed a forensic expert to evaluate plaintiff's
financial status and compelled plaintiff to provide defendant with outstanding
discovery. The court also granted defendant's numerous requests seeking
enforcement of plaintiff's support obligations, but ordered them "held in
abeyance pending the [forensic] evaluation as anticipated." 2
2
In a statement of reasons accompanying the March 21, 2014 order, the court
attributed the delay in proceedings following the April 25, 2012 orders to
plaintiff being "lackadaisical . . . and/or careless[ ] in attending to his legal
matters" based on the amount of time that elapsed between the entry of the April
25, 2012 orders and when plaintiff alleged his office was destroyed by "the
Sandy Storm (October 31, 2012)!" (emphasis in original).
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The court-appointed forensic expert submitted his report on November 20,
2015, which was based on plaintiff's tax returns from 2007 to 2014 and other
financial documents. The expert found plaintiff's annual "adjusted income/cash
flow" averaged approximately $113,872.63 between 2007 and 2014. 3
Five months later, on April 15, 2016, plaintiff filed a motion to compel
defendant's father and the executor of defendant's grandmother's will, to testify
regarding defendant's interests under the will. Defendant opposed the motion
and filed a cross-motion on April 26, 2016, seeking to increase plaintiff's
alimony obligation and enforce litigant's rights by requiring plaintiff to make
numerous reimbursements, including arrears for alimony, child support, and
defendant's health insurance payments. Defendant also argued that plaintiff did
not reveal all of his sources of income to the forensic expert. Plaintiff opposed
defendant's application on May 6, 2016, and certified that his income was
accurately represented by the forensic expert and that he provided the forensic
expert with all relevant information.
3
Specifically, the forensic expert's report provides that plaintiff's "[t]otal
adjusted [i]ncome before taxes from all sources" was $99,829 in 2007; $140,095
in 2008; $108,114 in 2009; $114,119 in 2010; $86,313 in 2011; 117,827 in 2012;
$118,057 in 2013; and $126,627 in 2014.
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After hearing the parties' pro se oral arguments on August 8, 2016, a
second motion judge found under "the terms of the PSA," the "deal was[,]
through August of 2015, the alimony would be $4,000 a month," and "[t]here is
no ambiguity in that provision." With respect to child support, the judge
informed the parties that additional documents were necessary for the court to
decide whether child support needed to be "balance[d] off at all with" the college
expenses that plaintiff paid for each child. The court entered an order on the
same date, which required the parties to submit the additional materials by
August 15, 2016, and stated that upon receipt of those documents, the court
would issue a supplemental order addressing the parties' requests for relief.
After receiving the additional materials, the court issued two orders and a
statement of reasons on November 18, 2016, which: denied plaintiff's
application to modify child support prior to August 15, 2015; modified plaintiff's
alimony obligations effective August 1, 2015; denied plaintiff's request to
compel defendant's father to testify regarding defendant's interest in her
grandmother's will and trust; and referred all other items of relief to a post -
judgment matrimonial early settlement panel.
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With respect to plaintiff's child support obligation, the court found the
PSA's "clear and unambiguous" language in Article Six 4 "equates to an anti-
Lepis[5] clause in this particular area." Accordingly, the court denied plaintiff's
request for a modification of child support prior to August 15, 2015.
Similarly, as to plaintiff's alimony obligation, the court found "the
agreement between the parties is clear" and "[t]he parties agreed to a permanent
alimony award . . . of $4,000.00/month based on the [p]laintiff having gross
income that varied from $110,000.00 to $160,000.00 [per] year." After quoting
the provision in the PSA that states "alimony shall not be amended by offset or
modification until after August 1, 2015," the court concluded "a clear and simple
reading of this provision is that alimony would not be amended by offset or
modification until August 1, 2015." Therefore, the court "focused" its analysis
"on the period of time leading up to and subsequent to that date."
In its pre-August 2015 analysis, the court noted the forensic expert
"averaged the [p]laintiff's adjusted gross income at $113,872.00," which the
court found "actually placed the [p]laintiff within the very range of income as
4
In its November 18, 2016 statement of reasons, the court mistakenly referred
to Article Six of the PSA as Article Seven.
5
Lepis v. Lepis, 83 N.J. 139 (1980).
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contemplated in the [PSA]." The court again referenced "the clear language of
the [PSA]," and stated that, "as noted, the [c]ourt's analysis is focused on
whether or not post August 1, 2015, it would be appropriate and equitable to
modify the [p]laintiff's alimony obligation."
In its post-August 1, 2015 analysis, the court determined that "[w]hile the
[p]laintiff's income is still within the range . . . contemplated in the [PSA], the
average income over a several year period is right at the low [end] of that income
range." Accordingly, the court "fe[lt]" it was "necessary from an equitable
standpoint to adjust the alimony obligation" as "[f]airness dictates recognizing
a relative decrease in [plaintiff's] yearly adjusted gross income," specifically "a
twenty-nine percent (29%) decrease in income from $160,000.00 to
$113,872.00."
The court then assessed defendant's financial circumstances and found
defendant was "somewhat less than forthcoming in terms of all current income
that she may be or could receive." Specifically, the court noted that it "ha[d]
some questions regarding . . . various costs and expenses that are listed in the
[d]efendant's mish mosh of papers submitted, which includes spending
$1,520.00 for a couch for one of the children, spending $1,400.00 at Target, and
getting Brooks Brothers suits." The court found "[t]hese numbers suggest an
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individual who is making somewhat more than the $15,000.00 that was imputed
to her." Therefore, the court concluded it was "appropriate at this time to impute
the [d]efendant [income] at the number suggested by the [p]laintiff, which is
$25,000.00/year." By applying "the formula utilized by the parties when they
reached their initial [a]greement" to "[p]laintiff's wages at the $113,872.00/year
number" and defendant's newly imputed annual income of $25,000, the court
modified plaintiff's alimony obligations to $2468.67 per month "effective as of
August 1, 2015." 6 This appeal followed.
While this appeal was pending, defendant filed an additional application
with the trial court that set forth 138 prayers for relief. Plaintiff filed opposition
papers and a cross-motion. In a March 2, 2018 order and accompanying
statement of reasons, the court denied all of the parties' requests for relief and
amplified its November 18, 2016 statement of reasons.
In its March 2, 2018 statement of reasons, the court explained that it had
found the PSA contained "enforceable anti-Lepis provisions" with respect to
child support and alimony. Specifically, the court found the provision
6
Although not explained in the November 18, 2016 statement of reasons, or in
the March 2, 2018 statement of reasons discussed infra at pp. 11-12, it appears
the court arrived at this figure by subtracting $25,000 from $113,872, resulting
in an amount of $88,872, dividing that sum by three to equal $29,624, and
further dividing that amount by twelve to reach $2468.67.
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prohibiting modification of alimony "until after August 1, 2015," and the
provisions in which plaintiff "agreed to extend child support for [the parties' two
youngest children] until August 1, 2015," and to "not seek a modification of
child support," were enforceable under the circumstances. The court stated:
Again, [al]though [the November 18, 2016] Statement
of Reasons could have provided more detail, the [c]ourt
relied on the forensic accounting expert's report and the
prolonged delay in the case to determine that
enforcement would be fair and equitable under the
circumstances. The [c]ourt believes that [p]laintiff had
the ability and the obligation to maintain the alimony
and child support obligations, as he agreed to, through
August 1, 2015. The forensic accounting expert's
report indicated that [p]laintiff's average annual wages
were $113,872, and the PSA states, "[t]he parties agree
at the time of this Agreement, [plaintiff's] income
varies from year to year with a gross annual income
between $110,000 dollars and $160,000 dollars."
Further, the [c]ourt believes that [d]efendant had a
continued need for the alimony and child support. The
parties agreed in the PSA that [d]efendant was capable
of earning only $15,000 per year, and no concrete
evidence was ever presented to the [c]ourt that
[d]efendant earned significantly above that salary.
The second motion judge filed its March 2, 2018 order and statement of
reasons with this court on May 23, 2018, "pursuant to Rule 2:5-1(b) to be
considered as the [c]ourt's discretion may allow."
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II.
On appeal, plaintiff maintains the court failed to comply with Rule 1:7-4
by "not adequately set[ting] forth its findings of fact or conclusions of law" in
deciding not to modify his alimony obligations prior to August 1, 2015.
Specifically, plaintiff contends the court "did not appreciate the tension between
conflicting Lepis vs. anti-Lepis language caused by handwritten changes to the
text" of Article Two of the PSA. Further, plaintiff asserts that under Morris v.
Morris, 263 N.J. Super. 237 (App. Div. 1993), "the important issue" to consider
when assessing whether a PSA contains an enforceable anti-Lepis provision is
what "trade-offs" the parties made between alimony and equitable distribution
as consideration for that provision. According to plaintiff, because there was
"no such discussion or consideration" of the trade-offs, "or, more importantly,
[of] the intent of the parties respecting that key provision," the court failed to
comply with Rule 1:7-4.
In addition, plaintiff argues that, "even assuming there had been a
determination of the standard of living during the marriage to which the parties'
current standard of livings could be compared," the "findings of fact as were
made do not adequately inform the parties or this Court about the incomes of
the parties to" support themselves. Plaintiff also contends the court "failed to
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discuss" the September 2014 statutory amendments to N.J.S.A. 2A:34–23(b).
Finally, plaintiff claims the second judge committed an abused of discretion by
failing to hold a plenary hearing in accordance with the first judge's finding of
a substantial change in circumstances, and requests a remand for the court to
conduct a plenary hearing. 7
III.
In reviewing a Family Part judge's motion order, we defer to "factual
findings 'supported by adequate, substantial, credible evidence' in the record."
Landers v. Landers, 444 N.J. Super. 315, 319 (App. Div. 2016) (quoting Gnall
v. Gnall, 222 N.J. 414, 428 (2015)). "Reversal is warranted when we conclude
a mistake must have been made because the trial court's factual findings are
‘manifestly unsupported by or inconsistent with the competent, relevant and
reasonably credible evidence as to offend the interests of justice . . . .'" Ibid.7
As noted previously, the November 18, 2016 orders also denied plaintiff's
application to modify his child support obligation prior to August 15, 2015, and
ordered him to pay arrears. Other than summarily stating that this appeal is
"from the [o]rders of November 18, 2016," and that the court's supplemental
November 18, 2016 order "denied the application to modify [plaintiff's] child
support obligation prior to August 15, 2015," plaintiff fails to address in his brief
specifically why the court's order related to child support was in error.
Accordingly, we consider those issues waived. Sklodowsky v. Lushis, 417 N.J.
Super. 648, 657 (App. Div. 2011) ("An issue not briefed on appeal is deemed
waived.").
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(alteration in original) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of
Am., 65 N.J. 474, 484 (1974)).
We accord special deference to the Family Part's "special expertise in the
field of domestic relations." Cesare v. Cesare, 154 N.J. 394, 412 (1998); see
Pacifico v. Pacifico, 190 N.J. 258, 266 (2007) ("'the law grants particular
leniency to agreements made in the domestic arena,' thus allowing 'judges
greater discretion when interpreting such agreements'") (quoting Guglielmo v.
Guglielmo, 253 N.J. Super. 531, 542 (App. Div. 1992)). "However, 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.'"
Landers, 444 N.J. Super. at 319 (alteration in original) (quoting D'Agostino v.
Maldonado, 216 N.J. 168, 182 (2013)).
Every application to modify an alimony award "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." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (quoting
Martindell v. Martindell, 21 N.J. 341, 355 (1956)). The trial court may modify
alimony awards "from time to time as circumstances may require." N.J.S.A.
2A:34–23. "A party seeking modification of his or her child support obligation
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has the burden of demonstrating a change of circumstances warranting an
adjustment." Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012)
(citing Lepis v. Lepis, 83 N.J. 139, 157 (1980)).
An assessment of changed circumstances requires a judge to examine the
parties' current situation and the situation when the order was entered. Beck v.
Beck, 239 N.J. Super. 183, 190 (App. Div. 1990) ("[I]t is clear that the changed-
circumstances determination must be made by comparing the parties' financial
circumstance at the time the motion for relief is made with the circumstances
which formed the basis for the last order fixing support obligations."). Further,
an alimony award generally should not be modified unless the change in
circumstances is permanent. Lepis, 83 N.J. at 151; Donnelly v. Donnelly, 405
N.J. Super. 117, 128 (App. Div. 2009).
"In an application brought by a supporting spouse for a downward
modification in alimony, such as the present case, the central issue is the
supporting spouse's ability to pay." Miller v. Miller, 160 N.J. 408, 420 (1999).
In addition, whether the parties agreed to a fixed amount of alimony "regardless
of changes in circumstances," or to reject the Lepis standards for modification,
is itself a circumstance that factors into the analysis. Morris, 263 N.J. Super.
at 242. Such provisions, known as "anti-Lepis" provisions, see id. at 240-41,
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245, are valid when their enforcement is "not unwarranted under the
circumstances . . . ." Id. at 245-46. Whether a particular clause is an anti-Lepis
provision depends on the common intent of the parties. See Quinn v. Quinn,
225 N.J. 34, 45 (2016) ("A settlement agreement is governed by basic contract
principles.").
Here, in its March 2, 2018 statement of reasons, the court found that
"[p]laintiff had the ability and the obligation to maintain the alimony and child
support obligations, as he agreed to, through August 1, 2015." In support of this
finding, the court relied upon the forensic expert report which indicated that
plaintiff's average gross income from his businesses, with certain adjustments,
was $113,872 between 2007 and 2014. As the court noted, $113,872 falls within
the $110,000 to $160,000 "gross annual income" range provided in the PSA.
The court also found based on the parties' representations in the PSA and
the evidence presented, defendant had a continued need for alimony. As to
defendant's income, the court found "[t]he parties agreed in the PSA that
[d]efendant was capable of earning only $15,000 per year, and no concrete
evidence was ever presented to the [c]ourt that [d]efendant earned significantly
above such a salary."
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There is no competent evidence in the appellate record to dispute the
court's finding that defendant was capable of earning only $15,000 per year.
Similarly, the record is devoid of evidence disputing the clear provision in
Article Two that plaintiff's alimony obligation was modifiable upon the death or
changed financial circumstances of either party, plaintiff's retirement or
anticipation of retirement, defendant's remarriage, or defendant's cohabitation
with an unrelated person for thirty or more days, but not until after August 1,
2015. Based on these findings, which are entitled to our deference, the court
found the PSA "contained enforceable anti-Lepis provisions," one of which
provided that "alimony shall not be amended by an offset or modification until
after August 1, 2015."
Further, because plaintiff failed to identify where in the record the trial
court was presented with competent evidence to contradict the clear provision
in Article Two, or dispute the court's findings regarding the parties' incomes
prior to August 1, 2015, we also conclude the trial court did not abuse its
discretion in resolving those issues without a plenary hearing. See Avelino-
Catabran v. Catabran, 445 N.J. Super. 574, 592-93 (App. Div. 2016) (explaining
the court has the discretion to decide a motion for modification exclusively on
the papers); Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976) ("An
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inflexible rule requiring a plenary hearing" on every matrimonial application
"would impede the sound administration of justice, impose an intolerable burden
upon our trial judges, and place an undue financial burden upon litigants.").
Turning to the court's decision to modify plaintiff's alimony after August
1, 2015, we agree with plaintiff that the court's findings "do not adequately
inform the parties or this [c]ourt about the incomes of the parties which were
used to determine the ability of the parties to sustain themselves." Again, in its
March 2, 2018 statement of reasons, the court stated it "believe[d] that [p]laintiff
had the ability and the obligation to maintain the alimony and child support
obligations, as he agreed to, through August 1, 2015." The finding that plaintiff
"had the ability . . . to maintain the alimony . . . obligations" with an average
annual income of $113,872 conflicts with the court's finding in its November
18, 2016 statement of reasons that an income of $113,872 rendered modification
fair and equitable after August 1, 2015. See Miller, 160 N.J. at 420 ("In an
application brought by a supporting spouse for a downward modification in
alimony, such as the present case, the central issue is the supporting spouse's
ability to pay.").
Further, the expert's report only concerned plaintiff's financial
circumstances from 2007 to 2014. While we acknowledge the court stated
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plaintiff was consistently earning at the low end of the income range in the PSA,
the court already found that plaintiff "had the ability . . . to maintain the alimony
and child support obligations" when he was earning approximately $113,872.
Thus, on remand, the court should clarify why modification of alimony was fair
and equitable when plaintiff was able to pay his alimony obligations while
earning approximately $113,872. In addition, the court should also make
findings of fact as to whether any reduction in plaintiff's income from the time
of the PSA was temporary or permanent. This is significant because a temporary
change in income does not support a modification of alimony. See Lepis, 83
N.J. at 151 ("Courts have consistently rejected requests for modification based
on circumstances which are only temporary."). Such a finding would be
particularly relevant here because the expert's report reveals plaintiff's income
from 2012 to 2014: 1) exceeded the eight-year average of $113,872 every year;
and 2) increased each of those three years.
Similarly, with respect to defendant's financial circumstances, in its
November 18, 2016 statement of reasons, the court "fe[lt] that it is appropriate
at this time to impute the [d]efendant at the number suggested by the [p]laintiff,
which is $25,000.00/year." The court based this decision in part on evidence
that it found "suggest[ed]" defendant was "making somewhat more than the
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$15,000.00 that was imputed to her." However, as we noted, in its March 2,
2018 amplified statement of reasons, the court found "no concrete evidence was
ever presented to the [c]ourt that [d]efendant earned significantly above"
$15,000 and that the parties agreed defendant could only earn $15,000.
Moreover, as plaintiff notes, the court failed to discuss the parties' marital
standard of living in its changed-circumstances analysis. The marital standard
of living "serves as the touchstone for the initial alimony award and for
adjudicating later motions for modification of the alimony award when 'changed
circumstances' are asserted." Crews v. Crews, 164 N.J. 11, 16 (2000); see Beck,
239 N.J. Super. at 190 ("the changed-circumstances determination must be made
by comparing the parties' financial circumstance at the time the motion for relief
is made with the circumstances which formed the basis for the last order fixing
support obligations"). The court did not consider the provisions in the PSA that
established the parties' marital lifestyle as "a middle class lifestyle" and stated
that "the support payable to [defendant] shall provide both parties with the
ability to substantially maintain the current lifestyle."
In light of the time that has elapsed since the court's November 18, 2016
order, on remand the court should require the parties to provide updated
certifications detailing their financial circumstances necessary to resolve
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plaintiff's request for a modification of his alimony. Upon receipt of those
supplemental submissions, the court should determine whether a plenary hearing
is necessary. See Avelino-Catabran, 445 N.J. Super. at 592-93; Shaw, 138 N.J.
Super. at 440. In light of our opinion vacating a portion of the November 18,
2016 order, and reserving for the trial court the decision to conduct a plenary
hearing upon receipt of supplemental submissions, we need not address whether
the trial court was obligated to conduct a plenary hearing based on the first
motion judge's April 25, 2012 order.
Finally, the parties raised several issues before the trial court that were
referred to a post-judgment early settlement panel. Nothing in our opinion
precludes the parties from raising before the trial court on remand any issue not
resolved by the early settlement panel.
To the extent we have not specifically addressed any of plaintiff's
remaining arguments, we conclude they are of insufficient merit to warrant
further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, vacated in part, and remanded for further proceedings
consistent with this opinion. We do not retain jurisdiction.
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