NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-5308-18T3
P.J.W.,
Plaintiff-Respondent/ Cross-Appellant,
v.
E.B.W.,
Defendant-Appellant/ Cross-Respondent. ________________________
Argued September 22, 2020 – Decided November 16, 2020
Before Judges Gilson, Moynihan, and Gummer.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-0298-12.
Richard S. Diamond argued the cause for appellant (Diamond & Diamond, P.A., attorneys; Richard S. Diamond, Lynn Matits Gianforte, and Samuel J. Berse, on the briefs).
Andrew M. Shaw argued the cause for respondent.
PER CURIAM This appeal involves disputes concerning alimony, child support, and
attorney's fees that arose after the parties were divorced. Defendant, the former
wife, appeals from a June 28, 2019 order that reduced the former husband's
alimony obligations due to a change of employment and a related reduction in
his compensation. 1 Plaintiff cross-appeals from the same order, contending that
his child-support obligation should have ended when their unemancipated child
came to live with him and that he was entitled to reimbursement for child support
paid while the child was living with him. He also challenges the denial of his
request for attorney's fees.
The order being appealed was entered after a plenary hearing. Having
reviewed the extensive record and applicable law, we discern no error in the
decisions concerning alimony and attorney's fees. We reverse the provision of
the order concerning child support because the family court failed to set forth
its findings of fact and conclusions of law on that issue. Accordingly, we
remand that issue.
1 We use initials in the caption to protect the privacy of the litigants and preserve the confidentiality of certain records because we discuss some of their financial circumstances. See R. 1:38-3(d). A-5308-18T3 2 I.
The parties were married in 1993 and, twenty years later, in 2013 they
divorced. They have two children: a son who is emancipated and a daughter
who was born in January 2001 and is currently attending college.
Plaintiff filed for divorce in 2011. After two years of litigation, the parties
negotiated and entered into a Support and Equitable Distribution Agreement (the
Support Agreement), which was incorporated into their final judgment of
divorce. Under the Support Agreement, plaintiff agreed to pay defendant
permanent alimony "consisting of 25% of husband's total gross compensation
up to a total of [$]1,250,000.00 per annum."
At the time of the divorce, plaintiff was a senior executive at Barclays
Bank (Barclays). His total gross compensation in the last four years of the
marriage averaged over $910,000. Plaintiff received various forms of
compensation, some of which were fixed and some of which were discretionary
or based on his performance. The parties agreed that plaintiff would pay twenty-
five percent of his fixed compensation of $420,000 (that was $105,000) in bi-
monthly payments of $4375. Plaintiff was also obligated to pay defendant
twenty-five percent of his remaining gross compensation within five business
days of his receipt of such additional compensation. The Support Agreement
A-5308-18T3 3 also provided that either party could seek to modify the alimony if there was a
"material change" in his or her financial circumstances.
In addition, the Support Agreement required plaintiff to pay defendant
child support. Like alimony, plaintiff paid child support in fixed and variable
amounts. The Support Agreement provided that when their son started college,
plaintiff would make a monthly payment of $880 based on his fixed income of
$420,000. Plaintiff was also required to make additional child-support payments
of four percent of his gross compensation above $420,000. Additionally,
plaintiff was responsible for paying 72.5% of the children's various expenses,
including extracurricular and college expenses.
Plaintiff has a master's degree in computer science and has held a variety
of positions dealing with computer technology applied to finance. In 2008,
plaintiff became a senior executive at Barclays, where he was responsible for
managing the bank's electronic trading. In 2013, he held the position of
Managing Director of Capital Markets Technology for Barclays.
In the five years following the parties' divorce (2013 to 2017), plaintiff's
annual income from Barclays ranged between just over $714,000 to just over
$973,000. Accordingly, his annual income from Barclays averaged over
A-5308-18T3 4 $850,000 per year. Through 2016, plaintiff paid defendant alimony in the
amount of twenty-five percent of his gross compensation.
In October 2017, plaintiff was notified that he was being fired from
Barclays effective January 5, 2018. Plaintiff began to search for a new job and
in February 2018 accepted a position as Director of Software Engineering for
AlphaPoint, a start-up blockchain company. His base annual salary at
AlphaPoint was $200,000, with the potential for bonuses.
In April 2018, plaintiff moved to reduce his alimony and child support
based on his decreased income. The family court found that plaintiff had made
a prima facie showing of a change of circumstances, authorized the parties to
conduct discovery, and scheduled the matter for a plenary hearing.
Thereafter, both parties engaged in discovery and retained employment
experts. The plenary hearing began in March 2019.
Meanwhile, plaintiff reinitiated his search for employment. In April 2019,
plaintiff left AlphaPoint and accepted the position of Capital Markets
Technology Manager with Wells Fargo Bank. Plaintiff's annual salary at Wells
Fargo is $265,000, and he has the potential for bonuses and stock options.
Plaintiff continued to work for Wells Fargo through June 2019, when the family
court issued the order on appeal.
A-5308-18T3 5 After plaintiff took the position with Wells Fargo, the family court
allowed the parties to engage in supplemental discovery. Each employment
expert submitted an additional report addressing plaintiff's employment at Wells
Fargo.
As already noted, the plenary hearing began in March 2019 and was
conducted on five days between March and June 2019. The family court heard
testimony from both parties and their employment experts. Plaintiff's expert
was Dr. Daniel Wolstein, and defendant's expert was Dr. David Stein.
Plaintiff testified that he conducted his post-Barclays employment
searches in two phases: (1) October 2017 into February 2018; and (2) December
2018 into April 2019. He explained that he used recruiters, his professional
network, and directly applied to positions posted on the internet. Between
October 2017 and February 2018, he applied for over thirty positions and
received three offers with salaries ranging between $120,000 to $200,000.
Plaintiff accepted the position at AlphaPoint in February 2018. He
testified that AlphaPoint offered $40,000 more than other companies with which
he had interviewed, and he believed that the position would allow him to get
back into software development.
A-5308-18T3 6 In December 2018, plaintiff reinitiated his search for employment and
applied for over 100 potential positions. He was offered two: a position at
Wells Fargo and a position at Amazon. He accepted the position at Wells Fargo
because it had a higher base salary of $265,000 and the potential for bonuses
and stock options.
Dr. Wolstein opined that plaintiff's efforts to obtain employment were
reasonable and that plaintiff was being "well compensated for his skill set" in a
growing industry. By contrast, Dr. Stein asserted that plaintiff had not engaged
in good-faith employment searches. Dr. Stein also opined, in a written report,
that the position at AlphaPoint may have negatively impacted plaintiff's chances
of finding employment comparable to his position at Barclays.
In addition to his job searches, plaintiff testified about the parties'
negotiation of the Support Agreement. He stated that the parties had exchanged
nearly thirty drafts of the Support Agreement. He also testified that he
understood the Agreement to require him to pay twenty-five percent of his total
gross compensation in alimony no matter where he worked. He acknowledged,
however, that defendant and her counsel did not discuss with him or his counsel
whether the twenty-five-percent formula would apply to future "fluctuations" in
his income.
A-5308-18T3 7 Defendant testified that the twenty-five-percent formula in the Support
Agreement was related to plaintiff's employment at Barclays. Accordingly, she
maintained that the twenty-five-percent formula was not intended to apply to
other employment.
Defendant also described her background and limited employment
history. She has a GED, and during most of the parties' marriage she managed
the marital home and cared for their children. Her last full year of outside
employment was in 1996, and since then she has only worked periodically.
Plaintiff also testified about the marital lifestyle and her current lifestyle
expenses.
After hearing the testimony and considering the exhibits submitted into
evidence, the family court rendered an oral decision on June 28, 2019. That
same day, the family court issued an order that (1) granted plaintiff's motion to
modify his alimony obligations by requiring plaintiff to pay twenty-five percent
of his salary and bonuses based on his compensation from Wells Fargo, effective
June 28, 2019; (2) denied plaintiff's request to retroactively adjust the alimony
he had already paid and to reimburse him for alleged overpayments of support;
(3) denied defendant's request to dismiss plaintiff's application for failure to
show a change of circumstances; (4) denied both parties' request for counsel
A-5308-18T3 8 fees; and (5) denied plaintiff's request to modify child support. The order did
not expressly address child support, but paragraph eight stated all other relief
requested that was not addressed was denied.
In its oral decision, the family court found that plaintiff had been
involuntarily fired from Barclays in October 2017. Plaintiff thereafter
undertook job searches, which the family court found "to be sincere, to be honest
and to be credible." The family court accepted plaintiff's testimony about why
he initially stopped searching for a job after accepting the position at
AlphaPoint. The family court also accepted plaintiff's testimony as to why he
resumed his search in December 2018. The family court ultimately found that
plaintiff's job searches were conducted in good faith and that he had accepted
the job at Wells Fargo to maximize his income.
The family court also considered the testimony and reports of both
employment experts. The court credited both experts' opinions but did not
accept one opinion over the other. Instead, the family court relied on plaintiff's
testimony that he had engaged in earnest, good-faith job searches and accepted
the position at Wells Fargo as the best he could find.
Turning to how alimony should be calculated, the family court examined
the Support Agreement and considered both parties' testimony about its
A-5308-18T3 9 provisions. The family court found that there had been extensive efforts to
negotiate the twenty-five-percent formula. The family court then reviewed the
language in the Support Agreement and held that the formula was not expressly
limited to plaintiff's employment at Barclays. Consequently, the family court
construed the Support Agreement to mean that plaintiff was to pay alimony
based on twenty-five percent of his total gross compensation no matter the
source of that compensation.
In making that holding, the family court found defendant's testimony
concerning her understanding of the Support Agreement not credible. The
family court also found that neither party could maintain the marital lifestyle
given plaintiff's reduced income. Furthermore, the family court found that while
defendant had overstated many of her current expenses, applying the twenty-
five-percent formula would be equitable because defendant would still be able
to maintain a reasonable lifestyle.
The family court also rejected defendant's arguments that plaintiff had not
established a change of circumstances. In that regard, the family court
considered our decision in Storey v. Storey, 373 N.J. Super. 464 (App. Div.
2004) and determined that principles from that opinion were inapplicable
A-5308-18T3 10 because plaintiff had "made every effort to maximize his earning capacity" and
was not willingly underemployed.
Addressing counsel fees, the family court found that neither party acted
in bad faith. The court identified the factors to be considered in a fee application
under Rule 5:3-5(c) and found that they did not support an award to either party.
Finally, the family court did not make findings of fact or conclusions of
law concerning child support. Instead, after making the rulings concerning
alimony and counsel fees, counsel for plaintiff asked about child support. In
response, the family court stated:
THE COURT: I did not and I specifically did not do that. Given -- given the circumstances and the payments, I'm going to deny any request for the modification of child support.
II.
Both parties appeal from certain provisions of the June 28, 2019 order. In
her moving brief, defendant raises two issues, contending that the family court
erred in (1) finding plaintiff had established a change of circumstances
warranting a downward modification of alimony; and (2) using the twenty-five-
percent formula in the Support Agreement to calculate the new alimony.
Defendant raised two additional issues in her reply brief, arguing that the family
A-5308-18T3 11 court erred in (3) denying her request for attorney's fees; and (4) not compelling
plaintiff to pay her $61,750 in unpaid alimony and $7,275 in unpaid child
support allegedly owed in 2017.
In his cross-appeal, plaintiff challenges two rulings, arguing that the
family court erred in (1) denying his request to terminate child support, denying
his request for reimbursement of child support he paid after their daughter came
to live with him, and requiring him to continue paying child support; and (2)
denying his request for attorney's fees.
A. Our Standard of Review
The scope of our review of an order issued by the family court following
a plenary hearing is limited. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We
will not disturb the factual findings made if they are supported by substantial,
credible evidence in the record. MacKinnon v. MacKinnon, 191 N.J. 240, 253-
54 (2007) (citing N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 279
(2007)). We review legal conclusions on a de novo basis. Manalapan Realty,
L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
B. Alimony
Several well-established principles govern whether a court should modify
or terminate alimony. First, if the parties agreed to the amount and conditions
A-5308-18T3 12 of alimony, that agreement should be enforced like any other settlement
agreement. Quinn v. Quinn, 225 N.J. 34, 44-46 (2016). "A settlement
agreement is governed by basic contract principles." Id. at 45 (citing J.B. v.
W.B., 215 N.J. 305, 326 (2013)). Accordingly, a court's role is to "discern and
implement the intentions of the parties" as expressed in the agreement. Ibid.
(citing Pacifico v. Pacifico, 190 N.J. 258, 266 (2007)).
Second, unless the parties have agreed otherwise, alimony "may be
revised and altered by the family court from time to time as circumstances may
require." N.J.S.A. 2A:34-23. To justify a modification or termination, the
moving party must show "changed circumstances." Lepis v. Lepis, 83 N.J. 139,
146 (1980). In Lepis, the Court recognized a non-exhaustive list of factors that
give rise to changed circumstances warranting modification or termination of
alimony. Id. at 151-52. Similarly, in N.J.S.A. 2A:34-23(j) and (k), the
Legislature identified factors a court needs to consider when a party seeks to
modify alimony. Those factors include, among other things, the financial
circumstances of the parties; whether the change in circumstances is temporary
or permanent; whether the change was voluntary; whether it was motivated by
bad faith or a desire to avoid payment; and whether the change in circumstances
renders the payor unable to meet the alimony obligation. Ibid.; see also Lepis,
A-5308-18T3 13 83 N.J. at 151-52; Larbig v. Larbig, 384 N.J. Super. 17, 22-23 (App. Div. 2006);
Glass v. Glass, 366 N.J. Super. 357, 370-71 (App. Div. 2004).
1. The Change in Plaintiff's Employment
It is undisputed that in October 2017 plaintiff was involuntarily fired from
Barclays. The first question is whether the twenty-five-percent formula in the
Support Agreement applies to plaintiff's new employment. Defendant argues
no, contending that the twenty-five-percent formula was only intended to apply
to plaintiff's employment at Barclays. By contrast, plaintiff argues yes, the
formula does apply and was not restricted to his employment and compensation
from Barclays.
This first question is an issue of law involving the interpretation of the
Support Agreement. Accordingly, we review it de novo. Kieffer v. Best Buy,
Inc., 205 N.J. 213, 222 (2011); see also Quinn, 225 N.J. at 45. We start with the
plain language in the Support Agreement. It required plaintiff to pay defendant
"'permanent alimony' consisting of 25% of husband's total gross compensation
up to a total of [$]1,250,000.00 per annum." The Support Agreement goes on
to discuss plaintiff's employment at Barclays and the various components of his
compensation. In the "Permanent Alimony" section there are numerous sub-
A-5308-18T3 14 provisions addressing how plaintiff's compensation from Barclays would be
calculated and how the twenty-five percent in alimony would be paid.
The Support Agreement also expressly recognized that plaintiff's gross
compensation and the corresponding alimony would fluctuate:
Husband's compensation plan benefits in excess of [$]1,250,000.00 per annum shall not be subject to alimony. Notwithstanding wife's entitlement under this Agreement to support up to [$]1,250,000.00 of husband's total annual compensation, the parties acknowledge that husband did not earn [$]1,250,000.00 in any year of the parties' marriage and that wife's entitlement to share in husband's income reflects wife's willingness to agree to a formula for support instead of a flat figure each year.
In addition, the Support Agreement recognized that alimony was to be
paid for years, and that the circumstances of the parties could change:
Notwithstanding the support provisions set forth above, nothing shall prevent either party from making application to the court in the future as a result of a material change in his/her financial setting. As to same, husband views a material change in circumstance as a good faith early retirement and wife objects to any early retirement by Husband. As such, the issue of retirement shall abide the event.
On its face, the alimony provisions in the Support Agreement are not
limited to plaintiff's employment at Barclays. We agree with the family court
that there is nothing in the Agreement restricting the twenty-five-percent
A-5308-18T3 15 formula to plaintiff's employment at Barclays. Moreover, we agree with the
family court that the twenty-five-percent formula was the result of good faith
negotiations and is enforceable as part of the parties' Support Agreement. See,
e.g., Quinn, 225 N.J. at 44; Konzelman v. Konzelman, 158 N.J. 185, 194 (1999).
Given our interpretation of the Support Agreement, plaintiff did not need
to show a change of circumstances. Nevertheless, even if plaintiff had to show
such a change, the factual findings made by the family court establish that
plaintiff showed a change of circumstances warranting a reduction in his
alimony obligation. There is no dispute that plaintiff was fired from his job at
Barclays. Thus, he lost the position that was compensating him over $900,000
per year.
2. Whether Plaintiff is Underemployed
While the Support Agreement is an enforceable settlement agreement, it
must still be equitably applied. See Petersen v. Petersen, 85 N.J. 638, 646
(1981). In that regard, courts should enforce the contract the parties negotiated,
so long as it is not inequitable or unfair. Id. at 645-46. Accordingly, if a party
with a support obligation is voluntarily underemployed, the family court may
impute income to that party for purposes of calculating support. See, e.g.,
A-5308-18T3 16 Caplan v. Caplan, 182 N.J. 250, 268 (2005); see also Elrom v. Elrom, 439 N.J.
Super. 424, 434 (App. Div. 2015).
Thus, the second issue is whether plaintiff is voluntarily underemployed
in his position at Wells Fargo. That is a factual question, and we therefore defer
to the family court's factual and credibility findings.
The family court found that plaintiff engaged in good-faith employment
searches and took the position at Wells Fargo to maximize his income.
Defendant vigorously disputes those findings, contending that plaintiff's
employment at AlphaPoint and Wells Fargo were not reasonable; plaintiff did
not demonstrate that he engaged in legitimate employment searches; and
plaintiff was underemployed. We reject all those arguments because the family
court's findings are supported by substantial credible evidence. In particular,
the family court relied on plaintiff's testimony, which the family court found
credible. It is not within our scope of review, nor do we discern a basis, to
disagree with the family court's findings.
Defendant relies on our decision in Storey v. Storey, 373 N.J. Super. 464,
468 (App. Div. 2004), to contend that plaintiff is voluntarily underemployed. In
Storey, the husband was obligated to pay alimony based on his employment as
a computer hardware specialist earning approximately $111,000 per year. The
A-5308-18T3 17 husband lost that job and decided to become a massage therapist, earning $300
per week. The family court granted the husband's application to modify his
support, but imputed earnings of $60,000 based on then-prevailing wages for
computer service technicians and reduced his alimony obligation from $480 per
week to $280 per week. Ibid. We reversed, holding an obligor's employment
decision must be reasonable and outlining factors that should be considered in
determining whether an obligor is voluntarily underemployed. Id. at 469-73.
Accordingly, if an obligor selects a less lucrative career, he or she must establish
the benefits derived from that career change substantially outweigh the
disadvantage to the supported party. Ibid. Absent such a showing, earnings
"consistent with the obligor's capacity to earn in light of the obligor's
background and experience" should be imputed. Id. at 469.
The facts in Storey are distinguishable from plaintiff's situation. As
previously noted, the family court expressly found that plaintiff had engaged in
good-faith efforts to obtain new employment maximizing his compensation.
Consequently, plaintiff was not found to be underemployed.
In summary, we affirm the provisions of the June 28, 2019 order applying
the twenty-five-percent formula to plaintiff's compensation from his position at
Wells Fargo. We also note that plaintiff disclosed that he would receive various
A-5308-18T3 18 payouts from Barclays for several years and that he agreed to pay twenty-five
percent of that compensation in alimony to defendant.
C. Child Support
At the time of their divorce, defendant had residential custody of both
children. After their son went to college, the Support Agreement provided
plaintiff would continue to pay defendant child support for their daughter.
In his motion to reduce his support obligations, plaintiff represented that
their daughter had been residing with him since April 2018. He sought to
terminate his child-support obligation and recover the child support that he
continued to pay after he filed the motion. In an order issued on June 15, 2018,
the family court denied plaintiff's application without prejudice and stated that
it would address the issue at the plenary hearing.
At the plenary hearing, defendant acknowledged that their daughter began
living with plaintiff sometime before her senior year of high school. She went
on to testify, however, that their daughter was with her every day and that she
made their daughter dinner and took her to appointments.
The family court did not make findings of fact or conclusions of law
concerning plaintiff's application to terminate his child support obligation. The
family court simply stated: "[G]iven the circumstances and the payments, I'm
A-5308-18T3 19 going to deny any request for the modification of child support." That
conclusory statement does not provide the factual findings and conclusions of
law required by Rule 1:7-4(a). Nor does that statement allow us to engage in
meaningful appellate review. See Shulas v. Estabrook, 385 N.J. Super. 91, 96
(App. Div. 2006) (recognizing appellate review was "hampered" by trial court's
inadequate explanation of the basis for its decision).
Accordingly, we vacate the provision of the June 28, 2019 order denying
plaintiff's application to terminate child support and remand so that the family
court can make a decision supported with findings of fact and conclusions of
law.
D. Attorney's Fees
We review a trial court's order concerning attorney's fees under an abuse
of discretion standard. Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div.
2008) (citing Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). N.J.S.A. 2A:34-
23 authorizes family courts to award counsel fees in a matrimonial action after
a judge considers "the factors set forth in the court rule on counsel fees, the
financial circumstances of the parties, and the good faith or bad faith of either
party." Chestone v. Chestone, 322 N.J. Super. 250, 255-56 (App. Div. 1999)
(quoting N.J.S.A. 2A:34-23).
A-5308-18T3 20 Rule 4:42-9(a)(1) provides that, "[i]n a family action, a fee allowance both
pendente lite and on final determination may be made pursuant to [ Rule] 5:3-
5(c)." Rule 5:3-5(c) states that a court should consider nine factors, including
"the reasonableness and good faith of the positions advanced by the parties[.]"
The family court here identified the factors enumerated in Rule 5:3-5(c)
and found that those factors did not support an award of counsel fees to either
party. The family court also found that neither party had acted in bad faith. We
discern no abuse of discretion in those determinations.
E. Defendant's Request for Alleged Unpaid Support Owed for 2017
Defendant contends that the family court erred in not requiring plaintiff
to pay her $61,750 in alimony and $7,275 in child support allegedly owed for
2017. We decline to consider this issue for two reasons.
First, defendant never raised this issue in the family court. A review of
the record establishes that defendant did not file a cross-motion concerning this
issue, nor did she present testimony clearly identifying the issue. Consequently,
the family court did not consider her claim. Absent certain circumstances, which
are not present here, we generally decline to consider issues that were not raised
in the family court. See N.J. Div. of Youth & Fam. Servs. v. M.C. III, 201 N.J.
328, 339 (2010); see also N.J. Div. of Youth & Fam. Servs. v. B.H., 391 N.J.
A-5308-18T3 21 Super. 322, 343 (App. Div. 2007) (citing Nieder v. Royal Indem. Ins. Co., 62
N.J. 229, 234 (1973)); but cf. Avelino-Catabran v. Catabran, 445 N.J. Super.
574, 581 n.7 (App. Div. 2016) (electing to review factors not raised to, but
considered by, a family court judge on appeal).
Second, defendant did not raise this issue in her initial brief; rather, she
first raised it in her reply. Raising an issue for the first time in a reply brief is
improper, and we generally will not consider such an issue. Borough of Berlin
v. Remington & Vernick Eng’rs, 337 N.J. Super. 590, 596 (App. Div. 2001);
L.J. Zucca, Inc. v. Allen Bros. Wholesale Distribs. Inc., 434 N.J. Super. 60, 87
(App. Div. 2014) (noting “[a]n appellant may not raise new contentions for the
first time in a reply brief”); see also N.J. Citizens Underwriting Reciprocal Exch.
v. Collins, 399 N.J. Super. 40, 50 (App. Div. 2008) (declining to consider
argument raised for the first time in reply brief as “not properly before [th e
appellate court]”). 2
While we decline to consider this issue, we nevertheless note that plaintiff
has an obligation to pay twenty-five percent of his gross compensation in
alimony to defendant. Consequently, if some amount of alimony is due to
2 We considered the attorneys' fees issue because it had also been raised by plaintiff and was expressly addressed by the family court. A-5308-18T3 22 defendant, we expect the parties to resolve that issue in good faith. We further
note, however, that good faith does not include raising arguments that could
have been, but were not, raised at the plenary hearing. In her reply brief,
defendant extrapolates from the alleged underpayment for 2017 and suggests
that there may have been underpayments in 2018 and 2019. That argument
includes applying interest on amounts that were not established in the record.
In short, the parties should resolve any claim for underpayment of alimony in
accordance with the formula in their Support Agreement.
F. Conclusion
In summary, we affirm the provisions of the June 28, 2019 order
addressing alimony and attorneys' fees. We decline to consider defendant's
argument concerning an underpayment of alimony and child support. Finally,
we reverse and remand the provision denying plaintiff's request concerning child
support. We remand that issue with directions that the family court provide a
decision supported by findings of fact and conclusions of law consistent with
Rule 1:7-4(a).
Affirmed in part, reversed and remanded in part. We do not retain
jurisdiction.
A-5308-18T3 23