NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0542-19
LENORE N. ZANGRILLI,
Plaintiff-Appellant,
v.
JASON D. ZANGRILLI,
Defendant-Respondent. ________________________
Argued October 13, 2021 – Decided July 29, 2022
Before Judges Currier, DeAlmeida and Smith.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-1553-11.
David L. Disler argued the cause for appellant (Porzio, Bromberg & Newman, PC, attorneys; Pamela M. Kapsimalis, of counsel; David L. Disler, of counsel and on the brief; Matthew J. Donohue, on the brief).
Respondent has not filed a brief.
PER CURIAM Plaintiff Lenore N. Zangrilli appeals from the August 22, 2019 order of
the Family Part granting defendant Jason D. Zangrilli's motion for a reduction
of his alimony and child support obligations. We affirm.
I.
The parties were married in 1994 and have three children. During the
marriage, defendant was employed as a creative director of marketing in New
York City, earning between $157,000 and $285,000 annually. In December
2011, defendant was involuntarily terminated from his position. He continued
to work in his field on a freelance basis and by operating a consulting business.
Plaintiff did not work during the marriage until she obtained employment in
2012 as a client services representative, earning $44,000 annually.
The parties divorced on January 3, 2013. A judgment of divorce
incorporated the terms of the parties' property settlement agreement (PSA).
Pursuant to the PSA, for purposes of calculating alimony and child support,
defendant's imputed income is $150,000 annually and plaintiff's imputed income
is $40,000 annually, although she was unemployed at the time she signed the
agreement. Based on these amounts, defendant agreed to pay plaintiff alimony
for fifteen years at $544.87 per week during 2013 and $705.12 per week for the
A-0542-19 2 remainder of the term. He also agreed to pay child support of $314 a week
during 2013 and $338 per week starting in 2014 and until emancipation.
The PSA contains two provisions with apparently conflicting terms. One
paragraph of the agreement states:
[I]n the event that [defendant] secures employment earning an actual gross income of less than $150,000 per year, [defendant's] alimony obligation shall not decrease and a gross income of $150,000 shall be imputed to [defendant] for the purposes of calculating alimony. However, in the event that [defendant] secures employment earning an annual gross income exceeding $150,000 per year, [defendant's] alimony obligation shall be modified.
However, on the following page, the PSA provides that a substantial change in
circumstances would permit either party to seek modification of alimony. The
agreement states:
The parties acknowledge that the case of Lepis vs. Lepis, 83 N.J. 139 (1980) has been explained to them. The parties acknowledge that they understand that a substantial change of circumstances would permit either party to make an application to a [c]ourt of competent jurisdiction to modify the alimony provisions set forth in this agreement. Neither party has waived his or her right to seek a modification of alimony as provided for under the case of Lepis.
A-0542-19 3 The parties made handwritten, initialed modifications to the paragraph
immediately following this provision, as well as to another paragraph on the
same page preceding this provision.
On October 3, 2013, the trial court found defendant was in violation of
litigant's rights for failing to pay alimony and child support. At the time, his
outstanding obligations amounted to $19,393.89.
Defendant subsequently moved for modification of his support obligations
based on a reduction in his income. In support of his application, defendant
stated that after his 2011 termination he was unable to secure a position in
advertising due to a change in the job market. He claimed the tasks he performed
in his prior position had been outsourced to robotics and that he "aged out" of
the field. He detailed his financial situation and efforts to find employment in
his prior field. Defendant certified that he submitted more than 600 job
applications between December 2011 and June 2017 and attended seminars and
continuing education programs in his field before changing careers.
He certified that he obtained employment as a truck driver in October
2017, in part because the position did not require extensive training and offered
more stability than advertising. His anticipated income as a truck driver is
between $54,600 and $65,520 annually. He requested the court impute annual
A-0542-19 4 income to him of $60,000 for the purpose of recalculating his support
obligations. He also provided his tax returns from 2012 to 2016 and certified
that he had filed for bankruptcy during that period. Defendant certified that he
had liquidated his savings and was living with his aunt, had $556.13 in his
checking account, and $16,500 in credit card debt. He also certified that he
depleted his retirement accounts, life insurance, and stocks.
Defendant retained an expert who prepared a vocational evaluation and
earning capacity assessment. The expert opined that defendant:
has made a successful transition from his prior occupation to an unrelated occupation . . . [which] was necessitated by his lack of work and earnings in his prior occupation . . . due in large measure to technological changes in the advertising industry and the limited number of opportunities presently and projected for the future in this field. Although his current occupation is lower paying than his prior creative work, it is steadier work with ample opportunity for sustained employment and wage growth over time.
The expert recommended defendant continue working as a truck driver.
The trial court issued an order denying defendant's application without a
plenary hearing. The court determined defendant had not made a prima facie
showing of changed circumstances under Lepis. While recognizing that
defendant had applied for positions, the court found that his proofs were fo r a
A-0542-19 5 limited period and that he had not proven a meaningful effort to improve his
chances and ability to find employment in advertising.
We reversed. Zangrilli v. Zangrilli, No. A-3815-17 (App. Div. Nov. 9,
2018). We concluded defendant made a prima facie showing of a change in
circumstances and remanded for a plenary hearing after discovery to determine
whether he made sufficient efforts to obtain employment in advertising, or
another higher-paying field. Id., slip op. at 9.
In addition, we addressed the conflicting provisions of the PSA with
respect to the modification of defendant's support obligations in light of changed
circumstances, an issue not raised by the parties in the trial court. We held that:
As part of the plenary hearing the court may, if it sees fit, also determine the intent of the parties in entering into a PSA that seems to preclude a reduction of support based on a reduction of income in one paragraph, while describing the parties' agreed-upon right to seek modification of alimony based on a "significant change of circumstances." In the unlikely event a Lepis wavier was intended, see Morris v. Morris, 263 N.J. Super. 237, 239-40 (App. Div. 1993), the court need not determine whether a sufficient change in circumstances exists to modify support. See also Ordukaya v. Brown, 357 N.J. Super. 231, 236 (App. Div. 2003) ("plaintiff waived any claim for support and agreed to an 'anti- Lepis' provision precluding any claim for change in circumstances supporting a claim for alimony.").
[Id., slip op at 9-10.]
A-0542-19 6 On remand, the trial court held three days of hearings, at which the parties
were the only witnesses. On August 22, 2019, the court issued a written opinion
granting defendant's motion. The court rejected plaintiff's argument that
inclusion of the provision stating the parties had not waived their Lepis rights in
the PSA was an oversight. In addition, the court noted that plaintiff, who was
represented by counsel when defendant moved for a modification, did not argue
that he had waived his right to do so in the PSA. The court apparently considered
plaintiff's failure to raise the argument as evidence she believed the parties had
not effectuated a waiver of their rights under Lepis.
The trial court made no findings with respect to defendant's intent when
he executed the PSA. However, given defendant's application for a modification
of his support obligations, it appears the trial court proceeded on the assumption
that defendant intended to preserve his rights under Lepis when he executed the
PSA. In the absence of proof that both parties intended to waive their rights
under Lepis, the court concluded the PSA did not effectuate such a waiver.
On the merits of defendant's application, the court found he made
sufficient efforts to find comparable employment in advertising, or another high-
paying field, before changing professions and seeking a downward modification
in his support obligations. The court based its findings on what is described as
A-0542-19 7 "extensive and detailed proof . . . of his efforts to obtain new, higher paying
employment." In addition, the court found defendant did not limit his
employment search to the creative field, having provided proofs of numerous
applications to positions in other occupations.
The court imputed to defendant annual income of $65,000 and determined
that plaintiff's imputed annual income of $40,000 would remain in place. Based
on these figures, the court set defendant's alimony obligation at $160.25 per
week, effective the date he filed his motion for a modification. The court also
directed defendant to pay $50 a week toward arrears. The court set defendant's
child support obligation at $189 per week, with an additional $50 a week toward
arrears. An August 22, 2019 order reflects the court's decision. 1
This appeal follows. Plaintiff argues that the trial court: (1) abused its
discretion by making findings of fact inconsistent with, and not supported by,
competent evidence in the record; (2) improperly shifted the burden of proof to
plaintiff; (3) failed to consider the burden on plaintiff of reducing defendant's
financial obligations; and (4) negated specific provisions of the PSA prohibiting
the reduction of defendant's imputed income below $150,000.
1 On September 25, 2019, the trial court recalculated defendant's child support obligation to $174 per week to account for taxable alimony paid by defendant. The court continued the $50 per week payment towards arrears. A-0542-19 8 II.
Our review of a Family Part's order is limited. Cesare v. Cesare, 154 N.J.
394, 411 (1998). "[W]e do not overturn those determinations unless the court
abused its discretion, failed to consider controlling legal principles or made
findings inconsistent with or unsupported by competent evidence." Storey v.
Storey, 373 N.J. Super. 464, 479 (App. Div. 2004). We must accord substantial
deference to the findings of the Family Part due to that court's "special
jurisdiction and expertise in family matters . . . ." Cesare, 154 N.J. at 413.
We must defer to the judge's factual determinations, so long as they are
supported by substantial credible evidence in the record. Rova Farms Resort,
Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). This court's
"[a]ppellate review does not consist of weighing evidence anew and making
independent factual findings; rather, [this court's] function is to determine
whether there is adequate evidence to support the judgment rendered at trial."
Cannuscio v. Claridge Hotel & Casino, 319 N.J. Super. 342, 347 (App. Div.
1999) (citing State v. Johnson, 42 N.J. 146, 161 (1964)). We review de novo
the court’s legal conclusions. Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995).
A-0542-19 9 In addition, this court "must give deference to those findings of the trial
judge which are substantially influenced by his or her opportunity to hear and
see the witnesses and have the 'feel' of the case, which [this court does] not enjoy
upon appellate review." State ex rel. D.M., 451 N.J. Super. 415, 424 (App. Div.
2017) (quoting State ex rel. S.B., 333 N.J. Super. 236, 241 (App. Div. 2000)).
There must be "deference to the trial court's credibility determinations[,]"
N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 279 (2007), "because
it 'hears the case, sees and observes the witnesses, and hears them testify,'
affording it 'a better perspective than a reviewing court in evaluating the veracity
of a witness.'" City Council of Orange Twp. v. Edwards, 455 N.J. Super. 261,
272 (App. Div. 2018) (quoting Gnall v. Gnall, 222 N.J. 414, 428 (2015)).
A.
We begin with plaintiff's challenge to the trial court's conclusion that the
parties did not effectuate a waiver of their Lepis rights in the PSA. The
settlement of matrimonial disputes is encouraged and highly valued in our court
system. Quinn v. Quinn, 225 N.J. 34, 44 (2016) (citing Konzelman v.
Konzelman, 158 N.J. 185, 193 (1999)). Settlement agreements resolving
matrimonial disputes are governed by basic contract principles and, as such,
courts should discern and implement the parties' intent. J.B. v. W.B., 215 N.J.
A-0542-19 10 305, 326 (2013). When interpreting a PSA, "[t]he court's role is to consider
what is written in the context of the circumstances at the time of drafting and to
apply a rational meaning in keeping with the 'expressed general purpose.'"
Pacifico v. Pacifico, 190 N.J. 258, 266 (2007).
The court must "ascertain the intention of the parties as revealed by th e
language used, the situation of the parties, the attendant circumstances, and the
objects the parties were striving to attain." Celanese Ltd. v. Essex Cnty. Imp.
Auth., 404 N.J. Super. 514, 528 (App. Div. 2009). Moreover, if the "terms of
the contract are clear, we enforce the contract as written and ascertain the
intention of the parties based upon the language." Pollack v. Quick Quality
Rests., Inc., 452 N.J. Super. 174, 187-88 (App. Div. 2017).
Changed circumstances that might give rise to a modification of a party's
support obligations under Lepis include a change in the parties' financial
circumstances. Spangenberg v. Kolakowski, 442 N.J. Super. 529, 536 (App.
Div. 2015). However, the parties may, in exchange for a fixed payment, execute
a settlement agreement with a so-called anti-Lepis provision that reasonably
limits the circumstances that may qualify as a change in circumstances
warranting modification of a party's financial obligations. Quinn, 225 N.J. at
49-50. Anti-Lepis clauses do not offend public policy and are enforceable when
A-0542-19 11 entered "with full knowledge of all present and reasonably foreseeable future
circumstances" that in the unusual case might give rise to a Lepis modification
of their agreement. Morris, 263 N.J. Super. at 241.
The ambiguity in the parties' PSA is readily apparent. One provision fixes
defendant's imputed annual income at $150,000 and expressly disallows him to
seek a reduction in his financial obligations if he secures employment that earns
less than that amount. A provision on the following page of the agreement,
however, provides that neither party waives their right to seek a modification of
alimony based on a substantial change in circumstances under Lepis.
We see no error in the trial court's rejection of plaintiff's argument that the
two provisions should be read together to mean that defendant's annual imputed
income is fixed at $150,000, even if he earns less than that amount, but plaintiff
may seek an upward modification of alimony under Lepis if defendant earns
more than that amount. The flaw in this argument is that the provision
preserving the right to seek relief under Lepis stated that "[n]either party" waives
the right to seek a modification based on a substantial change in circumstances.
The provision is not limited to the preservation of plaintiff's right to seek an
upward modification. It expressly includes defendant's right to seek a
A-0542-19 12 modification, which would include reduction based on a change in his income.
The two provisions cannot be harmonized in the way plaintiff suggests.
We turn, therefore, to the question of what the parties intended when they
agreed to the conflicting provisions. Although the trial court made no findings
of fact with respect to defendant's intent, he testified that he was unemployed
when he signed the agreement. According to defendant, he thought he could
find a job in advertising with an annual salary of $150,000, which is why he
agreed to the imputed annual income in the PSA. He also testified that he would
not have signed the agreement if it did not contain the provision preserving his
right to seek a modification of his support obligations under Lepis in the event
there was a substantial change in circumstance that prevented him from securing
such a position. He did not explain, however, what he intended when he agreed
to the provision of the agreement that provided that his imputed annual income
of $150,000 would remain in place even if he earned less than that amount.
Plaintiff testified that she too was unemployed when she signed the PSA.
According to plaintiff, she intended to agree to an imputed income for defendant
and herself that were not subject to modification under Lepis, except for the
potential upward modification of defendant's support obligations if he earned
more than $150,000 annually. She testified that she agreed to these terms
A-0542-19 13 because the income imputed to defendant was less than he had been earning
before he was terminated from his advertising position. She testified that she
believed the paragraph preserving both parties' rights to seek a modification
under Lepis was included in the PSA as an oversight. She conceded that she did
not raise this argument in opposition to defendant's motion for a modification.
We agree with the trial court's rejection of plaintiff's claim that the
paragraph preserving the parties' Lepis rights was, in effect, a boilerplate
provision mistakenly left in the contract. The provision appears immediately
after the paragraphs of the PSA establishing defendant's imputed annual income
and financial obligations. The parties, who were represented by counsel, made
handwritten modifications, which they initialed, to the paragraph immediately
after the Lepis preservation provision, as well as to another paragraph on that
page of the agreement. The circumstances of the execution of the agreement
strongly suggest that the parties, aided by their counsel, reviewed the agreement
carefully. The record contains no evidence that the unequivocal Lepis
preservation provision was included in the agreement in error and overlooked
by the parties at the time they signed the PSA.
The record does not convincingly establish what the parties intended when
they agreed to the conflicting provisions in the PSA. One plausible
A-0542-19 14 interpretation of the agreement is suggested by defendant's testimony: that he
agreed to an imputed annual income of $150,000, which would not be reduced,
provided he was employed in the advertising industry. However, defendant
intended to preserve the right to seek a modification of his financial obligations
in the event of a change in circumstances that prevented him from obtaining
employment in that field. There is, of course, no evidence in the record that
plaintiff had a meeting of the minds with defendant on that interpretation of the
conflicting provisions.
However, despite the ambiguity in the record with respect to the parties'
intent when executing the PSA, we are confident that the record does not contain
sufficient credible evidence that the parties executed a waiver of their rights
under Lepis. The only provision of the agreement that cites Lepis by name, and
includes an acknowledgment by the parties that the holding of that case had been
explained to them, expressly preserves their rights to seeks a modification based
on changed circumstances. In addition, in the section of the PSA entitled
"Waiver of Claims" there is no mention of Lepis. Absent an unequivocal
provision of the agreement waiving the parties' rights under Lepis, we are
satisfied that the trial court did not err when it considered defendant's motion
for a modification.
A-0542-19 15 B.
The court is "authorized to modify alimony and support orders 'as the
circumstances of the parties and the nature of the case' require." Halliwell v.
Halliwell, 326 N.J. Super. 442, 448 (App. Div. 1999) (quoting N.J.S.A. 2A:34-
23). A party seeking a modification of his alimony and child support obligations
must demonstrate changed circumstances "as would warrant relief." Lepis, 83
N.J. at 157. The obligor's ability to pay is a central consideration when
determining if relief is warranted. Miller v. Miller, 160 N.J. 408, 420 (1999).
We review the trial court's modification decision for an abuse of
discretion. Costa v. Costa, 440 N.J. Super. 1, 4 (App. Div. 2015). We must
"give due recognition to the wide discretion which our law rightly affords to the
trial judges who deal with these matters." Donnelly v. Donnelly, 405 N.J. Super.
117, 127 (App. Div. 2009) (quoting Larbig v. Larbig, 384 N.J. Super. 17, 21
(App. Div. 2006)). Our review of the trial court's discretionary determination
regarding defendant's support obligations "is limited to whether the court made
findings inconsistent with the evidence or unsupported by the record, or erred
as a matter of law." Reese v. Weis, 430 N.J. Super. 552, 572 (App. Div. 2013).
We have carefully reviewed the record and find sufficient credible
evidence supporting the trial court's decision to reduce defendant's financial
A-0542-19 16 obligations to plaintiff. The trial court, which had the opportunity to evaluate
defendant's testimony, determined that he made sufficient efforts to find
employment in the advertising field at or above the compensation level imputed
to him in the PSA, that he was unsuccessful in obtaining such a position, and
was entitled to a reduction in his imputed income based on a change in
circumstances that resulted in his employment in the trucking industry. We see
no basis on which to disturb the trial court's order reducing defendant's financial
obligations to plaintiff to reflect the change in his imputed annual income.
To the extent we have not specifically addressed any of plaintiff's
remaining claims, including her argument with respect to the trial court shifting
the burden of proof, we conclude they lack sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-0542-19 17