NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1099-23
LISA CHEW,
Plaintiff-Appellant,
v.
ROBERT CHEW,
Defendant-Respondent. _________________________
Submitted May 5, 2025 – Decided June 17, 2025
Before Judges Sabatino and Berdote Byrne.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-0094-20.
Cockerill, Craig & Moore, LLC, attorneys for appellant (Christine C. Cockerill, on the briefs).
Smedley Law Group, PC, attorneys for respondent (AllynMarie Smedley, on the brief).
PER CURIAM Plaintiff Lisa Chew appeals the Family Part's order denying her request to
increase the alimony obligation of her former spouse, defendant Robert Chew,
without discovery or a plenary hearing, and denying her request for counsel fees
and costs. On appeal, she posits: (1) the trial court mistakenly held she did not
demonstrate a prima facie claim of a substantial change in circumstances
warranting discovery and a plenary hearing; (2) the current circumstances
require her to use equitable distribution to cover her living expenses; and (3) the
trial court erred in denying her application for counsel fees and costs.
Although the Family Part erred in holding plaintiff failed to establish a
prima facie showing of changed circumstances, we affirm its order in part
because the parties stipulated at the time of the divorce to their marital standard
of living, and stipulated to plaintiff's imputed income, and she has not
demonstrated she cannot earn any income. However, because plaintiff
demonstrated a prima facie change in circumstances and the trial court failed to
consider any Rule 5:3-5(c) factors in its denial of plaintiff's request for counsel
fees, we reverse in part, and remand to the trial court for consideration of
whether plaintiff is entitled to counsel fees.
A-1099-23 2 I.
Plaintiff and defendant were married from September 1997 to February
2022, when the parties divorced. They had one daughter, who at the time of
their divorce was emancipated. During their divorce litigation, the parties
retained a joint expert who performed a lifestyle analysis and an economic
benefit/cash flow analysis for defendant's business, which was subject to
equitable distribution, Excel Industrial Services, LLC and Affiliates ("Excel").
The parties' Marital Settlement Agreement ("MSA") states defendant receives
approximately $330,000 per year in economic benefits from Excel. The
vocational expert, retained by defendant, imputed an annual earning capacity to
plaintiff between $45,600 and $49,100, as she was not employed at the time of
the parties' divorce, and had not been employed since May 2019. Defendant and
plaintiff voluntarily agreed in their MSA that defendant would pay plaintiff
$6,759 monthly in open duration alimony.
The parties' MSA addresses the termination and modification of alimony
specifically. The MSA states:
D. Termination/Modification: [Defendant's] alimony obligation shall terminate upon the earliest happening of the following events:
a. death of [plaintiff];
A-1099-23 3 b. death of [defendant];
c. remarriage of [plaintiff];
d. [a]ny substantial change in circumstances warranting termination.
[Defendant's] alimony obligation shall be reviewable for modification or termination, as appropriate, based upon any substantial change in circumstances as provided for under [s]tatute or case law [sic], including [plaintiff's] cohabitation as defined at the time an application is made. The parties acknowledge that [plaintiff] has applied for Social Security Disability benefits. Her initial application was denied. [Plaintiff's] appeal is pending.
[(Emphasis added.)]
In addition, this is the rare case where the parties stipulated to an amount certain
regarding the marital lifestyle. In the MSA, the parties agreed "[o]nce [the
parties' boat and daughter's college] expenses were removed [because they were
no longer incurring], the [m]arital [s]tandard of [l]iving was adjusted downward
. . . to $19,000[] per month." The MSA specified neither party could maintain
the marital standard of living, with plaintiff unable to do so with the amount of
alimony she would be receiving from defendant, and defendant unable to
maintain it while paying plaintiff alimony.
Article II of the MSA detailed the parties' agreement regarding equitable
distribution. The parties agreed plaintiff would retain the former marital
A-1099-23 4 residence, while defendant would retain the business interests and commercial
properties of Excel. The MSA noted defendant owed plaintiff $780,220 in
equitable distribution for her interest in Excel minus a credit for his share of the
parties' former marital residence totaling $98,055.17. The parties agreed
defendant would pay plaintiff $6,396.50 monthly in equitable distribution. The
parties' MSA was incorporated into their final divorce judgment.
Shortly after entry of the MSA, in March 2022, plaintiff received a benefit
verification letter from the Social Security Administration ("SSA") which stated
it determined she had become disabled as of June 26, 2021, and she would begin
to receive monthly disability benefits starting in December 2021. In February
2023, plaintiff received an SSA letter notifying her that her monthly social
security payment would increase to $2,126 starting in December 2022.
On August 29, 2023, plaintiff filed a notice of motion to increase
defendant's alimony obligation to $3,000 per week, $13,000 per month, based
upon a substantial change in circumstances—the SSA determination that she
was disabled and thus had a lower income than the imputed income stated in the
MSA, and on the basis of defendant's alleged improved financial status. On
October 12, 2023, defendant filed a cross-motion in which he opposed plaintiff's
motion and, in the alternative, requested the trial court grant his request "to
A-1099-23 5 obtain a new vocational evaluation for purposes of demonstrating [p]laintiff's
ability to engage in substantial gainful activity up to the [SSA] limit," as well as
additional requests for relief.
The trial court denied plaintiff's request to increase defendant's alimony
obligation and her request for counsel fees, without discovery, finding plaintiff
failed to demonstrate a prima facie case of changed circumstances. It also found
defendant's request for a new vocational evaluation of plaintiff was moot. It
specifically found the parties' MSA did not state that the result of plaintiff's
disability benefits appeal would constitute changed circumstances, and thus held
it was "not persuaded that the result of the appeal alone, without further analysis,
represent[ed] a substantial change of circumstances." The court noted it would
not add to the parties' MSA and, the "mere award or denial" of disability benefits
itself did not "meet the burden of a substantial change in circumstances."
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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-1099-23
LISA CHEW,
Plaintiff-Appellant,
v.
ROBERT CHEW,
Defendant-Respondent. _________________________
Submitted May 5, 2025 – Decided June 17, 2025
Before Judges Sabatino and Berdote Byrne.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-0094-20.
Cockerill, Craig & Moore, LLC, attorneys for appellant (Christine C. Cockerill, on the briefs).
Smedley Law Group, PC, attorneys for respondent (AllynMarie Smedley, on the brief).
PER CURIAM Plaintiff Lisa Chew appeals the Family Part's order denying her request to
increase the alimony obligation of her former spouse, defendant Robert Chew,
without discovery or a plenary hearing, and denying her request for counsel fees
and costs. On appeal, she posits: (1) the trial court mistakenly held she did not
demonstrate a prima facie claim of a substantial change in circumstances
warranting discovery and a plenary hearing; (2) the current circumstances
require her to use equitable distribution to cover her living expenses; and (3) the
trial court erred in denying her application for counsel fees and costs.
Although the Family Part erred in holding plaintiff failed to establish a
prima facie showing of changed circumstances, we affirm its order in part
because the parties stipulated at the time of the divorce to their marital standard
of living, and stipulated to plaintiff's imputed income, and she has not
demonstrated she cannot earn any income. However, because plaintiff
demonstrated a prima facie change in circumstances and the trial court failed to
consider any Rule 5:3-5(c) factors in its denial of plaintiff's request for counsel
fees, we reverse in part, and remand to the trial court for consideration of
whether plaintiff is entitled to counsel fees.
A-1099-23 2 I.
Plaintiff and defendant were married from September 1997 to February
2022, when the parties divorced. They had one daughter, who at the time of
their divorce was emancipated. During their divorce litigation, the parties
retained a joint expert who performed a lifestyle analysis and an economic
benefit/cash flow analysis for defendant's business, which was subject to
equitable distribution, Excel Industrial Services, LLC and Affiliates ("Excel").
The parties' Marital Settlement Agreement ("MSA") states defendant receives
approximately $330,000 per year in economic benefits from Excel. The
vocational expert, retained by defendant, imputed an annual earning capacity to
plaintiff between $45,600 and $49,100, as she was not employed at the time of
the parties' divorce, and had not been employed since May 2019. Defendant and
plaintiff voluntarily agreed in their MSA that defendant would pay plaintiff
$6,759 monthly in open duration alimony.
The parties' MSA addresses the termination and modification of alimony
specifically. The MSA states:
D. Termination/Modification: [Defendant's] alimony obligation shall terminate upon the earliest happening of the following events:
a. death of [plaintiff];
A-1099-23 3 b. death of [defendant];
c. remarriage of [plaintiff];
d. [a]ny substantial change in circumstances warranting termination.
[Defendant's] alimony obligation shall be reviewable for modification or termination, as appropriate, based upon any substantial change in circumstances as provided for under [s]tatute or case law [sic], including [plaintiff's] cohabitation as defined at the time an application is made. The parties acknowledge that [plaintiff] has applied for Social Security Disability benefits. Her initial application was denied. [Plaintiff's] appeal is pending.
[(Emphasis added.)]
In addition, this is the rare case where the parties stipulated to an amount certain
regarding the marital lifestyle. In the MSA, the parties agreed "[o]nce [the
parties' boat and daughter's college] expenses were removed [because they were
no longer incurring], the [m]arital [s]tandard of [l]iving was adjusted downward
. . . to $19,000[] per month." The MSA specified neither party could maintain
the marital standard of living, with plaintiff unable to do so with the amount of
alimony she would be receiving from defendant, and defendant unable to
maintain it while paying plaintiff alimony.
Article II of the MSA detailed the parties' agreement regarding equitable
distribution. The parties agreed plaintiff would retain the former marital
A-1099-23 4 residence, while defendant would retain the business interests and commercial
properties of Excel. The MSA noted defendant owed plaintiff $780,220 in
equitable distribution for her interest in Excel minus a credit for his share of the
parties' former marital residence totaling $98,055.17. The parties agreed
defendant would pay plaintiff $6,396.50 monthly in equitable distribution. The
parties' MSA was incorporated into their final divorce judgment.
Shortly after entry of the MSA, in March 2022, plaintiff received a benefit
verification letter from the Social Security Administration ("SSA") which stated
it determined she had become disabled as of June 26, 2021, and she would begin
to receive monthly disability benefits starting in December 2021. In February
2023, plaintiff received an SSA letter notifying her that her monthly social
security payment would increase to $2,126 starting in December 2022.
On August 29, 2023, plaintiff filed a notice of motion to increase
defendant's alimony obligation to $3,000 per week, $13,000 per month, based
upon a substantial change in circumstances—the SSA determination that she
was disabled and thus had a lower income than the imputed income stated in the
MSA, and on the basis of defendant's alleged improved financial status. On
October 12, 2023, defendant filed a cross-motion in which he opposed plaintiff's
motion and, in the alternative, requested the trial court grant his request "to
A-1099-23 5 obtain a new vocational evaluation for purposes of demonstrating [p]laintiff's
ability to engage in substantial gainful activity up to the [SSA] limit," as well as
additional requests for relief.
The trial court denied plaintiff's request to increase defendant's alimony
obligation and her request for counsel fees, without discovery, finding plaintiff
failed to demonstrate a prima facie case of changed circumstances. It also found
defendant's request for a new vocational evaluation of plaintiff was moot. It
specifically found the parties' MSA did not state that the result of plaintiff's
disability benefits appeal would constitute changed circumstances, and thus held
it was "not persuaded that the result of the appeal alone, without further analysis,
represent[ed] a substantial change of circumstances." The court noted it would
not add to the parties' MSA and, the "mere award or denial" of disability benefits
itself did not "meet the burden of a substantial change in circumstances."
The trial court also addressed plaintiff's claim there was a change in
circumstances based upon defendant's increase in income. It found that " [t]he
purchase of a property is not sufficient to prove an increase in [d]efendant's
income," because his new "heavily mortgaged property [did] not indicate a
sudden influx of cash," and instead "indicate[d] to the court that the [d]efendant
A-1099-23 6 continue[d] to consume a large portion of his resources as part of his own
lifestyle choices." The court denied both parties' requests for counsel fees.
This appeal followed.
II.
"Our review of Family Part orders is limited." Gormley v. Gormley, 462
N.J. Super. 433, 442 (App. Div. 2019). We "afford substantial deference to the
Family Part's findings of fact because of that court's special expertise in family
matters." Voynick v. Voynick, 481 N.J. Super. 207, 220-21 (App. Div. 2025)
(quoting W.M. v. D.G., 467 N.J. Super. 216, 229 (App. Div. 2021)). A court's
findings "are binding on appeal so long as its determinations are 'supported by
adequate, substantial, credible evidence.'" Gormley, 462 N.J. Super. at 442
(quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)).
Generally, a Family Part's finding regarding the modification of alimony
"should not be vacated unless the court clearly abused its discretion, failed to
consider all of the controlling legal principles, made mistaken findings, or
reached a conclusion that could not reasonably have been reached on sufficient
credible evidence present in the record." J.E.V. v. K.V., 426 N.J. Super. 475,
485 (App. Div. 2012). "Although a family court's factual findings are entitled
to considerable deference, we do not pay special deference to its interpretation
A-1099-23 7 of the law . . . ." Thieme v. Aucoin-Thieme, 227 N.J. 269, 283 (2016) (quoting
D.W. v. R.W., 212 N.J. 232, 245 (2012)).
N.J.S.A. 2A:34-23 grants Family Part judges the authority to modify
alimony. "Our courts have interpreted [N.J.S.A. 2A:34-23] to require a party
who seeks modification to prove 'changed circumstances[.]'" Spangenberg v.
Kolakowski, 442 N.J. Super. 529, 536 (App. Div. 2015) (second alteration in
original) (quoting Lepis v. Lepis, 83 N.J. 139, 157 (1980)); see also Temple v.
Temple, 468 N.J. Super. 364, 367 (App. Div. 2021) (noting "the Court [has]
recognized that an award may be modified or terminated when a moving party
presents a prima facie showing of changed circumstances").
However, "[p]arties to a divorce action may enter into voluntary
agreements governing the amount, terms, and duration of alimony, and such
agreements are subject to judicial supervision and enforcement." Quinn v.
Quinn, 225 N.J. 34, 48 (2016). A parties' agreement that is "executed voluntarily
and understandingly for the purpose of settling the issue of [alimony] [is]
specifically enforceable." Ibid. (quoting Berkowitz v. Berkowitz, 55 N.J. 564,
569 (1970)).
A-1099-23 8 Changed Circumstances
The MSA, under the section entitled "Termination/Modification," clearly
states, "[t]he parties acknowledge that [plaintiff] has applied for Social Security
Disability benefits," "[h]er initial application was denied," and her "appeal is
pending." (Boldface omitted). Although the MSA could have been more clearly
drafted, it is evident the parties were awaiting the outcome of the appeal to
determine whether the SSA determination would change circumstances. There
is no other reason for the inclusion of this language in the portion of the MSA
discussing modification or termination. Plaintiff's disability determination—the
SSA's finding that she was disabled and eligible to receive $2,126 per month
starting in December 2022—was a "substantial change in circumstances"
pursuant to the parties' MSA.
The parties' MSA imputed a yearly income of $45,600 to $49,100 to
plaintiff. According to the SSA's disability determination of plaintiff, she now
receives approximately $25,512 per year in disability benefits, which is a little
more than half of the income imputed to her in the MSA.
Although the trial court erred in holding plaintiff failed to demonstrate a
prima facie case of changed circumstances, she is not entitled to discovery or a
plenary hearing. The parties clearly stipulated to the martial standard of living
A-1099-23 9 as $19,000 per month for them as a couple, or approximately $9,500 each.
Further, the parties acknowledged in their MSA that neither of them could
maintain the marital standard of living. Plaintiff's decreased income does not
warrant discovery or a plenary hearing because she is receiving $2,126 in
disability benefits and $6,759 in alimony, or $8,885 in total, per month. The
result of her SSA appeal did not change the marital standard of living or the fact
that she is receiving half of the marital standard of living. Neither party has a
greater right to the marital standard of living. N.J.S.A. 2A:34-23(b)(4).
Moreover, plaintiff has failed to demonstrate she cannot earn the
additional $1,620 per month the SSA allows her to earn, despite its finding she
is totally disabled. 1 Having been imputed an income between $45,600 and
$49,100, a number she willingly agreed to before she filed her motion, and with
knowledge her SSA appeal was pending, plaintiff would have to demonstrate
she has diligently sought employment up to the SSA cap, or, in the alternative,
establish she is permanently disabled to such an extent she cannot perform any
employment up to the cap. Accordingly, we affirm the trial court's order
1 As of 2025, a disabled individual may earn up to $1,620 per month in additional income while receiving social security disability benefits after a trial work period. See Soc. Sec. Admin., Working While Disabled: How We Can Help (Jan. 2025), https://www.ssa.gov/pubs/EN-05-10095.pdf. A-1099-23 10 denying plaintiff's motion to increase defendant's alimony to $3,000 per week.
Plaintiff is already receiving half of the marital standard of living in alimony
and SSA payments, and she is not entitled to a greater share of the marital
standard of living than defendant.
The Legislature has recognized an "increase or decrease in the supporting
spouse's income," as changed circumstances warranting modification of alimony
and support orders. Lepis, 83 N.J. at 151; see also N.J.S.A. 2A:34-23(k); Quinn,
225 N.J. at 49. Plaintiff argues defendant's alleged increase in income
constitutes changed circumstances. She claims her "certified statements of his
lifestyle and continued ability to entertain and travel," photos of his new house,
and the publicly-recorded mortgage which reflects his $100,000 deposit support
her claim. However, the trial court found "[t]he purchase of a property is not
sufficient to prove an increase in [d]efendant's income," because his "heavily
mortgaged property does not indicate a sudden influx of cash," and instead
shows defendant's continued use of "a large portion of his resources as part of
his own lifestyle choices." We agree. We conclude plaintiff failed to establish
a prima facie showing of changed circumstances regarding an increase in
defendant's income, particularly because the MSA included a stipulation as to
the economic benefit derived from the business. Plaintiff did not offer any
A-1099-23 11 evidence of defendant's increase in income and instead made bare assertions
regarding the purchase of his new home, alleged hosting of guests, and alleged
traveling as representing an increased income.
Counsel Fees
Although we affirm the Family Part's order denying plaintiff's motion to
modify her alimony, we reverse and remand its denial of plaintiff's request for
counsel fees and costs. The decision to award counsel fees "in matrimonial
actions rests in the sound discretion of the trial court," Bisbing v. Bisbing, 468
N.J. Super. 112, 121 (App. Div. 2021), and will not be disturbed "absent a
showing of 'an abuse of discretion involving a clear error in judgment,'" Steele
v. Steele, 467 N.J. Super. 414, 444 (App. Div. 2021) (quoting Tannen v. Tannen,
416 N.J. Super. 248, 285 (App. Div. 2010), aff'd o.b., 208 N.J. 409 (2011)); see
also R. 5:3-5(c). "An abuse of discretion occurs when a trial court makes
'findings inconsistent with or unsupported by competent evidence,' utilizes
'irrelevant or inappropriate factors,' or 'fail[s] to consider controlling legal
principles.'" Steele, 467 N.J. Super. at 444 (alteration in original) (quoting
Elrom v. Elrom, 439 N.J. Super. 424, 434 (App. Div. 2015)). Additionally, "[a]n
abuse of discretion is also demonstrated if the court fails to consider 'all relevant
A-1099-23 12 factors.'" Ibid. (quoting Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div.
2005)).
"Rule 4:42-9 permits an award of fees in a family action. Such fees may
be awarded based on a weighing of the factors set forth in Rule 5:3-5(c) . . . ."
Bisbing, 468 N.J. Super. at 121. "[T]he court shall determine the appropriate
[counsel fee] award . . . [after] consider[ing] the factors set forth in [Rule 5:3-
5(c)], the financial circumstances of the parties, and the good or bad faith of
either party." N.J.S.A. 2A:34-23. In determining the amount of counsel fees to
award, the court should consider the factors set forth in Rule 5:3-5(c), which
include "the financial circumstances of the parties." See also Mani v. Mani, 183
N.J. 70, 93-95 (2005). We note that a party's ultimate success, or lack thereof,
in a matter is only one of the factors a court considers in deciding the amount of
attorneys' fees to award. R. 5:3-5(c). Thus, plaintiff's lack of success in her
motion to increase the amount in alimony payments paid to her does not
necessarily preclude the trial court from awarding her counsel fees.
Here, the trial court addressed both parties' requests for attorneys' fees by
stating only: "[t]he court denies the requests of both parties for counsel fees."
No further explanation or analysis was provided by the court. It failed to
"consider the factors set forth in [Rule 5:3-5(c)], the financial circumstances of
A-1099-23 13 the parties, and the good or bad faith of either party" in its decision to deny the
parties' requests for counsel fees. N.J.S.A. 2A:34-23. Thus, we reverse the trial
court's determination regarding attorneys' fees and remand for consideration of
those factors.
Because plaintiff did demonstrate a prima facie case of changed
circumstances and defendant's "[n]et economic benefit of approximately
$330,000[] per year" is greater than plaintiff's imputed income and her overall
financial circumstances, we remand to the trial court to consider the Rule 5:3-
5(c) factors and determine whether plaintiff is entitled to reasonable attorneys'
fees.
To the extent we have not addressed any of plaintiff's remaining
arguments, we are satisfied they lack sufficient merit to warrant discussion. R.
2:11-3(e)(1)(E).
Affirmed in part, reversed in part, and remanded for the trial court's
determination regarding counsel fees. We do not retain jurisdiction.
A-1099-23 14