Alimony is generally modifiable if a substantial and continuing change of circumstances can be shown. Typically, when we think about changes of circumstances in this regard, we generally look at financial changes of circumstances related to the income of the payor or recipient. While permissible, we don’t often look at custody and parenting time issues to be the change of circumstance to get discovery and a plenary hearing to modify alimony.

However, in the case of Dong v. Li, an unreported (non-precedential) Appellate Division decision released on February 23 , 2024, parenting time issues were the crux of the reason that the trial court was reversed.

The relevant facts are as follows. The parties were divorced in 2018. Their Marital Settlement Agreement (MSA) recognized that they had an autistic son that may never be emancipated and provided for 19 years of limited duration alimony. At the time of the divorce, the parties had 50-50 parenting time. The husband’s income was $238,000 and the wife’s income was going to be imputed at $10,000 for the first two years and then $40,000 (i.e. to allow wife two years to become employed) thereafter with alimony stepping down at that time. The MSA contained the typical clause that neither party could maintain the marital lifestyle. After the divorce, the husband permanently moved to California with his new wife for a new job. By 2021, the husband’s income increased to more than $480,000 but the wife never obtained employment near the imputed income.

Accordingly, in 2022, she filed a motion seeking to increase alimony based on the husband’s increased income and his decreased parenting time. Husband cross moved to enforce the imputation in the MSA. The trial court denied the wife’s motion and enforced the imputed income despite noting that the wife, “… argued that “the change in parenting responsibilities ha[d] impacted
her ability to hold a better job” and that “there [wa]s no way . . . she c[ould] get a job earning $40,000 per year because of her time commitments to [their son].” Wife appealed arguing that the trial judge erred in denying her request for a plenary hearing based upon her showing a change of circumstances. The Appellate Division agreed and reversed the matter.

As to the issue of changed circumstances, the Appellate Division held that the husband’s “… move to California indisputably resulted in defendant’s significantly increased parenting time, which, in addition to her added responsibility to homeschool their son for over eighteen months during
the pandemic, demonstrated a prima facie showing of changed circumstances.” Moreover, they held:

Specifically, defendant’s parenting time with the parties’ special needs son increased by over thirty-five percent, and she certified that her increased parenting responsibilities inhibited her employment capacity. The judge also overlooked that after defendant’s move, plaintiff gained greater parental responsibility as the only parent in the state where the child resided. Notably, the majority of plaintiff’s modified parenting time occurred over four weeks in
August. Our Supreme Court elucidated that a parent’s reasonable belief “that she could take only employment positions that provided her with scheduling flexibility so as to be responsive to her children’s special needs should be fairly considered.” Crews, 164 N.J. at 36. The exchange of discovery and a plenary hearing were warranted.

In short, the Appellate Division found error in the trial court not consider the extent of the effect on the wife’s employability caused by her increased parenting time. In addition, the court noted that the husband’s “… increased income in relation to the parties’ marital standard of living is also materially in dispute” and thus warranted discovery and a plenary hearing.

The Court also noted that “Pursuant to N.J.S.A. 2A:34-23(c), “[a]n award of alimony . . . may be
modified based either upon changed circumstances, or upon the nonoccurrence of circumstances that the court found would occur at the time of the award,” with the court’s required reconsideration of the statutory alimony factors.”

Thus, while it could have been easy to leave the parties to the benefit of their bargain as to imputation, in essence, it was not fair to do so when the facts surrounding parenting responsibilities had changed.

Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Department of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or