SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO . A

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ROXANNE DUNNING,

Plainti ff

- Respondent,

v.

HARRY RITCHIE, JR.,

Defendant

- Appellant.

_______________________

Submitted March 16, 2020

– Decided May 11, 2020

Before Judges Rothstadt and Moynihan.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Camden County,

Docket No

. FM

- 04

- 1373

- 13.

Borger Matez, PA, attorneys for appellant (Peter M.

Halden, on the brief).

R esponde nt has not filed a brief.

PER CURIAM

Defendant Harry Ritchie, Jr. appeals from a Family Part order denying his

motion to terminate or modify his weekly $200 open

- duratio n alimony NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

- 3.2 A

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obligation to plaintiff, established in the parties ' June 25, 2014 divorce

settlement. Defendant claims he was entitled to alimony termination or

reduction because: he reached full

- retirement age of sixty

- six; due to his age

and limited education, he is unable to find employment in the computer field in

which he worked "for the majority of his career" ; his 401(k) retirement fund was

dissipated to carry expenses related to the marital home in which he did not live

and which plaintiff overpriced forestalling its sale while she and several of her

family members occupied it ; and he was forced to relocate to Vietnam in order

to l ive on the balance of his $2081 monthly social security benefit after paying

alimony, and still, he is unable to meet his living expenses.

Following an evidentiary hearing, Judge Yolanda C. Rodriguez analyzed

defendant ' s application under N.J.S.A. 2A:34

- 23(j)(3)

, in that defendant ' s

alimony obligation was established prior to the statute ' s September 10, 2014

effective date. W e accord deference to the judge ' s "special jurisdiction and

expertise" in family law matters

. Cesare v. Cesare

, 154 N.J. 394, 413 (1998)

.

Deference is especially appropriate " when the evidence

is largely testimonial and involves questions of

credibility. " In re Return of Weapons to J.W.D.

, 149

N.J. 108, 117 (1997). Because a trial court " ' hears the

case, sees and observes the witnesses, [and] hears them

testify, ' it has a better perspective than a reviewing

court in evaluating the veracity of witnesses. " Pascale

v. Pascale

, 113 N.J. 20, 33 (1988).3 A

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- 18T2 [ Id. at 412 (alteration in original) .]

U nder that limited standa rd of review, we affirm substantially for the reasons

set forth in Judge Rodriguez ' s cogent oral opinion

.

Having found it was undisputed that defendant reached full retiremen t age

and retired in good faith

, the judge applied her factual findings to each of the

statutory factors, 1 starting with plaintiff ' s ability to have saved adequately for

1 N.J.S.A. 2A:34

- 23(j)(3) requires the judge to

consider the ability of the obligee to have saved

adequately for retirement as well as the following

factors in order to determine whether the obligor, by a

preponderance of the evidence, has demonstrated that

modification or termination of alimony is appropriate:

(a) The age and health of the parties at the time of the

application;

(b) The obligor ' s field of employment an d the generally

accepted age of retirement for those in that field;

(c) The age when the obligor becomes eligible for

retirement at the obligor ' s place of employment,

including mandatory retirement dates or the dates upon

which continued employment would no longer increase

retirement benefits;

(d) The obligor ' s motives in retiring, including any

pressures to retire applied by the obligor ' s employer or

incentive plans offered by the obligor ' s employer;4 A

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retirement. From documentary evidence and plaintiff ' s testimon y that the judge

deemed credible, Judge Rodriguez determined plaintiff received $1183 in net

monthly social security disability benefits

— which began approximately four

years before the divorce

— and did not have any ability to save

.

Defendant argues the judge made " no mention of the evidence presented

at trial that shows that plaintiff received approximately [ ninety percent ] of the

equity from the sale of the " marital hom e: about $115,000. Defendant does not

provide a reference in the record supporting that contention, see R. 2:6

- 2(a)(5),

and w e see nothing in the record that establishes that averment, ostensibly made

for the first time on appeal; as such it is not cognizable

, s ee Nieder v. Royal

Indem. Ins.

, 62 N.J. 229, 234 (1973)

. We also note the court ' s prior orders

(e) The reasonable expectations of the parties regard ing

retirement during the marriage or civil union and at the

time of the divorce or dissolution;

(f) The ability of the obligor to maintain support

payments following retirement, including whether the

obligor will continue to be employed part

- time or work

reduced hours;

(g) The obligee ' s level of financial independence and

the financial impact of the obligor ' s retirement upon the

obligee; and

(h) Any other relevant factors affecting the parties '

respective financial positions.5 A

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requir ed payments from the home

- sale proceeds be made for reimbursement to

plaintiff ' s sister, counsel fees, alimony arrears owed to plaintiff and

reimbursement to plaintiff for home repairs

.

In considering the delineated statutory factors, Judge Rodriguez found as

to subsection (a)

, although plaintiff was "four years younger than defendant,"

she was disabled and receiving social security benefits, as she had when the

parties divorced ; plaintiff took numerous prescription medications and walked

with a cane

. In contrast, the judge found " defendant proudly testified that he

work [ed] out at a gym everyd ay" as supported by evidence of Facebook posts

.

H is CIS revealed he did not take any medications.

As to subsection (b), the judge found no evidence relating to the generally

accepted age of retirement in the computer field, and that subsection s (c) and

(d) were inapplicable because defendant was terminated from his last job prior

to the divorce and had not worked in the compute r field since. As such, he was

not eligible to retire from his last position and was not pressured to retire

.

The judge also discredited defendant ' s testimony that supports his present

contention that his obligation should be terminated or reduced so h e could afford6 A

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to live in the United States and "be with his children and grandchildren [

. ] " 2 Her

careful study of defendant ' s testimony led the judge to reason:

[H]is excuse for not being able to come to the U.S. to

visit his family is also not credible. He testified he

would come to the U.S. more often to see his family if

only he had more money. However, on a trip to the U.S.

in October 2017,

. . . he spen[t] at least a week in

Clearwater, Florida with a friend and not with his

children and grandchildren. He has an excuse for this

too. He testified that the reason that he went to the

Florida beach with his friend is not because he enjoys

that friend ' s company

, but because he wouldn ' t have to

pay for a hotel and car, he could stay there for free.

This is not logical. Is his family charging him rent to

stay with them? If he ' s that financially tight wouldn ' t

his family lend him a car to use so that he could sp end

time with them and not have to go to the beaches of

Clearwater, Florida with a friend? If he regrets the fact

that he didn ' t spend time with his children when they

were young, why would he go to Clearwater, Florida

during his once a year visit to the U.S.? In summary,

defendant was not credible.

Judge Rodriguez addressed " [ t ] he reasonable expectation s of the parties

regarding retirement during the marriage

. . . and at the time of the divorce ,"

N.J.S.A. 2A:34

- 23(j)(3)(e), after reviewing the transcript containing the parties '

settlement agreement reached on the date of their divorce. From that evidence

the judge found "the parties accepted that

. . . defendant was probably not going

2 Each party had children by prior relationships; they had no children in

common.7 A

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to get an other position in the computer field making the type of salary, around

$70,000, that he made in his last job." The judge also foun d "[ p ] laintiff was

disab l ed and defendant

, at most, would obtain a low[

- ]paying job [

. ] " The judge

continued:

[I]t is under those conditions that they agreed to the

permanent alimony amount. This favors

. . . plaintiff.

It is not as if defendant was earning a significant salary

and had agreed to a comparably high alimony. On the

contrary, they agreed to a small alimony award because

they knew that he would either not work or else work

at the level of a minimum wage job [.]

T he judge concluded the parties expected a modest retirement.

Judge Rodriguez ' s analysis of subsection (f) included her perspicacious

assessment of the testimony and evidence presented at the plenary hearing at

which both parties testified, to which we accord due deference. Cesare

, 154 N.J.

at 412. The judge found defendant ' s testi mony that he was not working in

Vietnam, and that he was merely volunteering at a school without compensation,

not credible

. The judge observed defendant "wanted to portray himself as

teaching to underprivileged children because, as he said, it [was] personally

fulfilling" ; but questioned

, "if that [was] the case, why would he appe ar so

defensive on the stand?" The judge considered Facebook

- post evidence to be

"consistent with someone who is emplo yed as an English teacher in Vietnam.8 A

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His partying lifestyle indications are also consistent with someone who is

employed in Vietnam and supplementing his income, but wanting to keep that

information away from his ex

- wife[.]"

Defendant contends that the only evidence that he was working in

Vietnam was a photograph of him, dressed in a collared shirt and tie, in a

classroom. We disagree. Assessing defendant ' s ability to maintain alimony

payments in retirement, including his ability to work part

- time or reduced hours,

N.J.S.A. 2A:34

- 23(j)(3)(f), the judge found

[i] t is clear from the numerous Facebook page posts by

defendant that he has been able to live comfortably and

pay the alimony that had been agreed to on June 25,

2014. This may partially be due to the fact that he has

moved to Vietnam where his social security check goes

further and enables him to travel, go to the gym every

day, go to a pool, eat out frequently, party at nightclubs,

but it ' s also due to the fact that the modest alimony

amount wa s set at a time when he was already

unemployed and had been for two years. Additionally,

his testimony that he was not working as a teacher in

Vietnam was not credible in light of how he testified in

court, his Facebook posts and his lack of producing a

c ertified translation of his visa. Given that he is

working in Vietnam as a teacher it is understandable

how he has been able to live so comfortably in Vietnam

and easily pay his modest alimony.

Judge Rodriguez reiterated her prior finding that plaintiff was disabled in

analyzing plaintiff ' s "level of financial independence and the financial impact"9 A

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of defendant ' s retirement on her. N.J.S.A. 2A:34

- 23(j)(3)(g)

. Notwithstanding

defendant ' s claim that plaintiff received social security disab ility benefits and

lives with her daughter who receives disability and government assistance, the

judge found plaintiff ' s

disability benefits plus her modest alimony still don ' t

completely cover her expenses. She is sharing a one

bedroom with her adult d isabled daughter who also

receives disability benefits and public assistance

following a serious car accident. Additionally, it is

undisputed that plaintiff ' s sister helps her out

financially when she needs it. So the termination, or

reduction, in her al imony by defendant because he has

reached full retirement age would be devastating to her.

Determining there was no evidence pertaining to subsection (h), the judge

concluded defendant failed to prove that his alimony obligation should be

terminated or modified. Contrary to defendant ' s contention that the judge did

not consider a modification, the judge ' s findings related to th at alternative relief.

Her decision made clear that a reduction of the modest alimony obligation was

not warranted. In testimo ny determined to be credible by the judge, plaintiff

stated that even with alimony and social security benefits she receives, she

"struggle[s] to make ends meet," and relies on her sister financially, because she

is unable to work at all to supplement her income. Plaintiff testif ied that she is

in poor health , lives in a one

- bedroom apartment she and her daughter share,10 A

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and although she took trips to the Caribbean and Florid a, her sister was the one

who covered the entire trips ' costs

.

Only when the family court ' s findings are "so manifestly unsupported by

or inconsistent with the competent, relevant and reasonably credible evidence

as to offend the interests of justice" is reversal warranted. Rova Farms Resort,

Inc. v. Inv ' rs Ins. Co. of Am.

, 65 N.J. 474, 484 (1974) (quoting Fagliarone v.

Township of N. Bergen

, 78 N.J. Super. 154, 155 (App. Div. 1963)). Judge

Rodriguez ' s findings are amply "supported by adequate, substant ial, credible

evidence

. " Cesare

, 154 N.J. at 411

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. A s such

, we affirm.