Original

							                    NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-2615-09T2



WENDY L. CRESCENZO,

     Plaintiff-Appellant,

v.

JOHN CRESCENZO,

     Defendant-Respondent.
___________________________________

          Argued April 13, 2011 - Decided    August 15, 2011

          Before Judges Fuentes, Ashrafi and Nugent.

          On appeal from Superior Court of New Jersey,
          Chancery Division, Family Part, Middlesex
          County, Docket No. FM-12-1973-06E.

          Bonnie C.   Frost argued the cause for
          appellant   (Einhorn, Harris, Ascher,
          Barbarito   & Frost, P.C., attorneys; Ms.
          Frost, on   the brief).

          Dennis M. Fackelman argued the cause for
          respondent (Vastola, Fackelman & Sullivan,
          attorneys; Mr. Fackelman, on the brief).

PER CURIAM

     Plaintiff Wendy Crescenzo appeals from a December 23, 2009

order of the Family Part that modified the amount of permanent

alimony defendant John Crescenzo must pay, declined to compel

him to obtain additional life insurance coverage to protect
future alimony payments, and denied reimbursement of her

attorney's fees.   Although the Family Part's decisions relevant

to modifying alimony indicate the court considered several of

the relevant statutory factors of N.J.S.A. 2A:34-23b, the record

does not show that all factors were adequately addressed.

Furthermore, the amount of alimony ordered has led the parties

to conclude that the court used a simplified mathematical

formula to set alimony based only on earned income of the

parties.   We reverse in part and remand for further proceedings

in conformity with the statutory requirements.

     This case unfortunately illustrates continuing involvement

of the Family Part in the divorced parties' financial affairs

after a final judgment of divorce has been entered.   An award of

permanent alimony that was properly granted after a thirty-six

year marriage, followed by immediate changed circumstances in

the available earned income to pay that alimony, has resulted in

almost continuous litigation in which neither party can find

satisfaction and accumulating attorney's fees deplete the

parties' financial resources.

     Wife and husband in this case were married in 1971 and

divorced after a two-day trial in 2007.1   At the time of divorce,

the parties were in their late fifties, and their two children

1
  For identification and reference, we will use the designations
"wife" and "husband" instead of plaintiff and defendant.



                                 2                          A-2615-09T2
were emancipated.   Relevant to issues of financial support, the

Family Part determined that husband earned about $221,600 per

year from his executive position at Sanofi Aventis Pharma-

ceutical, and the court imputed income of $14,870 per year to

wife.   A judgment of divorce was entered on June 27, 2007,

awarding wife permanent alimony of $95,000 per year, payable in

monthly installments of $7,916.66.

    Even before the entry of the judgment, however, husband was

laid off from his job at Sanofi Aventis in April 2007.

Consequently, the parties filed motions pertaining to alimony

and other matters, which the court denied at that time by orders

dated October 22, 2007.   In accordance with the court's

instructions following trial, the parties negotiated and

submitted an Amended Dual Judgment of Divorce incorporating

their agreement on additional issues.

    The amended judgment, dated December 17, 2007, repeated the

permanent alimony obligation as previously stated, and it

required that husband secure a life insurance policy of $500,000

for the purpose of protecting wife's alimony payments.      The

judgment required that wife be named as the owner and

beneficiary of the policy.   It permitted a policy with a

decreasing face amount, reducing the benefit payable upon

husband's death over a period of years based upon life




                                 3                           A-2615-09T2
expectancy tables.2   The judgment further stated that if husband

could not reasonably procure $500,000 in life insurance

coverage, the court would entertain a motion to modify that

obligation based on costs.   Also, the amount of life insurance

coverage could be modified if in the future the court reduced

husband's alimony obligation.

     On January 18, 2008, the Family Part denied husband's

renewed motion to recalculate his alimony obligation because of

his unemployment and health problems.   On appeal, we ordered a

limited remand concerning the alimony obligation, and the Family

Part scheduled a plenary hearing for May 2008.   Before the

hearing occurred, the parties reached agreement and presented a

consent order that was eventually filed on August 12, 2008.     The

consent order reduced husband's alimony obligation to $36,000

per year because of his unemployment.   The appeal pending before

us at that time was dismissed.

     After the consent order, husband remained unemployed and

did not make timely payments of $3,000 per month.    In 2009, the

parties again filed motions pertaining to alimony.   On March 6,

2009, the Family Part denied without prejudice husband's request


2
  In accordance with the life expectancy table in the Court
Rules, fifty-nine year-old husband at the time of divorce was
required to provide life insurance coverage for approximately
twenty-three years. Pressler & Verniero, Current N.J. Court
Rules, Appendix I at 2399 (2011).



                                 4                         A-2615-09T2
to modify his alimony obligation, stating that husband had not

demonstrated a substantial and permanent change in circumstances

that would warrant a plenary hearing.   In addition, the court

granted wife's request for proof of life insurance but modified

husband's obligation, reducing the amount of required insurance

benefit to $189,000 because of his reduced alimony obligation.

     The parties then filed yet another set of motions.   After

hearing oral argument on July 16, 2009, the Family Part denied

without prejudice husband's request to modify his alimony

obligation and wife's request for proof of life insurance.

Instead, the court scheduled a plenary hearing to be held in

August 2009: 1) to address whether husband's unemployment status

constituted a permanent change in circumstances warranting a

reduction in his alimony obligation; 2) to require husband to

provide proof that he attempted to secure a life insurance

policy pursuant to the March 6, 2009 order; and 3) to address

both parties' request for counsel fees.3

     After conducting the plenary hearing, the Family Part

issued its decision in a letter-opinion of September 9, 2009.

The court concluded that husband's unemployment and ill health


3
  It is procedurally improper to deny a potentially meritorious
post-judgment motion on the ground that a plenary hearing is
needed to resolve the issues. If evidence must be taken to
decide a motion, the court should reserve decision pending the
hearing, enter an order scheduling the hearing, or both.



                                5                           A-2615-09T2
demonstrated a significant change of circumstances under Lepis

v. Lepis, 83 N.J. 139, 151 (1980), warranting a reduction of his

alimony obligation.   The court imputed income to husband of

$65,000 based on his prior work history and job search and made

reference to income of $14,870 imputed to wife at the time of

trial.   The court concluded:

          Using these numbers and the other factors
          under [N.J.S.A.] 2A:34-23(b)1-13, previously
          addressed, a yearly alimony figure of
          $15,000.00, payable in monthly installments
          of $1,250.00 would best address the current
          situation, effective June 11, 2009. Arrears
          shall be paid in the amount of $300.00 per
          month.

    Addressing the issue of life insurance, the court stated

that, considering husband's financial situation and good faith,

a $189,000 ten-year term policy was sufficient because the

expense "to change this policy for a ten year term to a twenty-

year term will be cost prohibitive."   Finally, the court

reviewed the factors listed in Rule 5:3-5(c) pertaining to an

award of attorney's fees and denied both parties' request in

that regard.

    The court entered an order on September 9, 2009, which

mistakenly stated husband's alimony obligation was $1,500 per

month.   The order also stated that if husband's income rose

above $65,000, alimony would be adjusted.   The order required

husband to maintain the term life insurance policy for $189,000,




                                 6                          A-2615-09T2
naming wife as the sole beneficiary.   On September 30, 2009, the

court entered an order correcting the alimony figure to $1,250

per month.4

     Before the September 2009 orders were issued, husband's

attorney wrote to the court and wife's attorney on August 27,

2009, that husband had obtained new employment and would have a

yearly income of $95,000.   Court staff did not provide counsel's

letter to the Family Part judge before the September 2009 orders

and the court's letter-opinion were issued.

     Wife filed a motion for reconsideration of the September

orders based upon husband's re-employment.    After hearing oral

argument, the court entered an order on December 23, 2009, that:

1) raised husband's alimony obligation to $2,000 per month, and

$400 per month toward arrears; 2) denied wife's request to

modify the September 9, 2009 order as to sufficiency of the ten-

year term insurance policy; and 3) denied both parties' request

for attorney's fees.   Wife filed a notice of appeal from the

December 23, 2009 order.

     The judge of the Family Part then issued a letter-statement

pursuant to Rule 2:5-1(b) explaining further his December 23,

4
  The September 9, 2009 order had another error that was repeated
rather than corrected by the September 30, 2009 order. Both
orders stated that wife's imputed income was $14,087 instead of
$14,870 as referenced in the court's letter-opinion of September
9, 2009. The discrepancy is not significant.




                                 7                         A-2615-09T2
2009 order.   In addition to relying on the changed circumstances

standard of Lepis, supra, 83 N.J. 139, the judge suggested that

the findings of September 9, 2009, still applied to the December

23, 2009 order with the single change that husband's income was

now $95,000 rather than the imputed $65,000 while he was

unemployed.

    On appeal, wife argues: 1) the Family Part arbitrarily set

defendant's alimony obligation without adequate explanation; 2)

the ten-year term life insurance policy is not sufficient and

contrary to the parties' agreement, especially since husband has

new employment; and 3) wife is entitled to reimbursement of her

attorney's fees for the motions.

    We review the Family Part's decision on alimony for abuse

of its discretionary authority.        See Innes v. Innes, 117 N.J.

496, 504 (1990); Cox v. Cox, 335 N.J. Super. 465, 473 (App. Div.

2000).   In Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340

(App. Div. 2009), we elaborated on what our standard of review

entails:

           To vacate a trial court's finding concerning
           alimony, we must conclude that the trial
           court clearly abused its discretion or
           failed to consider all of the controlling
           legal principles, or we must otherwise be
           satisfied that the findings were mistaken or
           that the determination could not reasonably
           have been reached on sufficient credible
           evidence present in the record after
           considering all of the proofs as a whole.




                                   8                           A-2615-09T2
             [Id. at 354.]

    Here, the Family Part's letter-opinion of September 9,

2009, and supplemental statement of March 26, 2010, provide

reasons for setting alimony under the changing circumstances of

husband's unemployment and subsequent re-employment.        However,

the court's reasons do not address all factors relevant to

setting the amount of alimony.

    N.J.S.A. 2A:34-23c requires that the court "make specific

findings on the evidence" regarding statutory factors relevant

to an award of alimony.      Those factors are listed in N.J.S.A.

2A:34-23b:

             (1) The actual need and ability of the
             parties to pay;

             (2) The duration of the marriage or civil
             union;

             (3) The age, physical and emotional health
             of the parties;

             (4) The standard of living established in
             the marriage or civil union and the
             likelihood that each party can maintain a
             reasonably comparable standard of living;

             (5) The earning capacities, educational
             levels, vocational skills, and employability
             of the parties;

             (6) The length of absence from the job
             market of the party seeking maintenance;

             (7) The parental responsibilities for the
             children;




                                    9                          A-2615-09T2
         (8) The time and expense necessary to
         acquire sufficient education or training to
         enable the party seeking maintenance to find
         appropriate employment, the availability of
         the training and employment, and the
         opportunity for future acquisitions of
         capital assets and income;

         (9) The history of the financial or non-
         financial contributions to the marriage or
         civil union by each party including
         contributions to the care and education of
         the children and interruption of personal
         careers or educational opportunities;

         (10) The equitable distribution of property
         ordered and any payouts on equitable
         distribution, directly or indirectly, out of
         current income, to the extent this
         consideration is reasonable, just and fair;

         (11) The income available to either party
         through investment of any assets held by
         that party;

         (12) The tax treatment and consequences to
         both parties of any alimony award, including
         the designation of all or a portion of the
         payment as a non-taxable payment; and

         (13) Any other factors which the court may
         deem relevant.

    In Carter v. Carter, 318 N.J. Super. 34, 42 (App. Div.

1999), we held that when ordering alimony, the court "must

adhere to the statutory requirement in every case, whether

contested or uncontested."    That is, the court must make

findings of fact and determine a fair amount of alimony based

upon the statutory factors.    See also Rule 1:7-4 (statement of

judge's findings of fact and conclusions required for judgments




                                 10                          A-2615-09T2
and appealable orders); Heinl v. Heinl, 287 N.J. Super. 337, 347

(App. Div. 1996) (remand necessary because of Family Part's

"[n]aked conclusions" inadequately supported by findings of fact

in accordance with the statutory provisions authorizing an award

of alimony); Schwarz v. Schwarz, 328 N.J. Super. 275, 282 (App.

Div. 2000) ("an articulation of reasons is essential to the fair

resolution of" a child support dispute).

    Here, some of the statutory factors are self-evident and do

not require discussion or detailed findings.    For example, the

length of the marriage and wife's primary role as a homemaker

and caregiver for the children appear not to be matters in

dispute that require detailed fact finding.    Moreover, the

Family Part's decisions were certainly more than bare

conclusions.   But the court did not state findings of fact

pertaining to issues such as wife's need for alimony to support

herself, the effect of equitable distribution on each party's

financial circumstances, the ability of the parties to

approximate the marital standard of living through the financial

resources now available to them, and whether income was

available to either party through investment of assets or other

resources.   Although the court mentioned that husband's assets

were depleted during the period of his unemployment, and wife's

careful management of her assets had preserved some resources

for her, the court's remarks were generalized statements that do



                                11                         A-2615-09T2
not set forth how those factors were assessed in determining a

fair amount of alimony that husband must pay.

    Wife argues, and husband appears to acknowledge, that the

Family Part may have used an impermissible formula to determine

the amount of alimony, rather than applying the factors required

by N.J.S.A. 2A:34-23b to the facts shown by the evidence.     Wife

contends the court subtracted her imputed income from husband's

income and then awarded her thirty percent of the resulting

figure by each of the September 9 and December 23, 2009 orders.

The resulting figures match such a formula.   In September 2009,

subtracting about $15,000 imputed to wife from $65,000 imputed

to husband leaves a remainder of $50,000, and thirty percent of

that amount is the $15,000 per year alimony awarded at that

time.   In December 2009, subtracting $15,000 from the $95,000

actual new income of husband leaves a remainder of $80,000, and

thirty percent of that amount is the $24,000 awarded.

    We decline to conclude that the Family Part used such a

formula.   Nevertheless, we agree with wife that use of a

percentage formula based only on earned or imputed income is not

authorized by law.   Such a formula does not weigh and balance

particular factors as listed in the statute and as might affect

each individual case.

    We also note that neither the court at the time of the 2007

trial nor the parties in their August 12, 2008 consent order



                                12                          A-2615-09T2
resorted to such a formula to determine an appropriate amount of

alimony.   The original $95,000 per year alimony that was awarded

in June 2007 is approximately forty-six percent of the

difference between the parties' incomes using the above formula,

and the $36,000 agreed by the parties in August 2008 is

approximately seventy-two percent of the difference.     We do not

suggest that either of those percentages is appropriate in

determining husband's alimony obligation at this time, but the

figures illustrate that a percentage amount is not consonant

with either the court's prior fact findings after trial or with

the parties' agreement when circumstances of husband's

employment changed.

    Because specific findings and conclusions relevant to

determining modification of alimony were not made in accordance

with all relevant factors under N.J.S.A. 2A:34-23b, we reverse

so much of the order of December 23, 2009 as fixed alimony at

$2,000 per month and remand to the Family Part to make more

detailed findings of fact and reconsider the amount based on

those findings.   We do not preclude the court from determining

that $2,000 is the appropriate amount but require adequate

support in the record for its determination.

    As to the issue of life insurance, we conclude the Family

Part did not abuse its discretion or misinterpret the provisions

of the amended judgment of divorce permitting modification of



                                13                          A-2615-09T2
the amount and term of life insurance that husband must provide.

We see no basis, however, for omitting the requirement that wife

be designated the owner of the life insurance policy as well as

its sole beneficiary.   Presumably, such a designation gives wife

control of any changes that could be made to that policy.

    Furthermore, because we are remanding so that the Family

Part can reconsider the amount of alimony, the court should also

reconsider whether the $189,000 face amount and ten-year term of

the policy husband obtained remain a just resolution of the

dispute now that he is re-employed.   In that respect, the court

can consider its award of alimony on remand, whether alternative

life insurance is available at reasonable cost through husband's

new employment, and any other circumstances that might affect

the parties' original intent at the time of the 2007 amended

judgment of divorce in providing adequate insurance coverage for

the wife's future alimony expectations.

    Finally, we discern no abuse of discretion in the Family

Part's application of the factors listed in Rule 5:3-5(c) and

its determination not to award attorney's fees to either party.

See Gotlib v. Gotlib, 399 N.J. Super. 295, 314-15 (App. Div.

2008); Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004).

    Affirmed in part and reversed in part and remanded.     We do

not retain jurisdiction.




                                14                          A-2615-09T2