                                NOT FOR PUBLICATION WITHOUT THE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-2515-17T2

BELLA FRANGIPANE,

          Plaintiff-Appellant,

v.

RICHARD FRANGIPANE,

     Defendant-Respondent.
___________________________

                    Submitted December 19, 2018 – Decided January 9, 2019

                    Before Judges Nugent and Mawla.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Bergen County,
                    Docket No. FM-02-1092-96.

                    Bella Frangipane, appellant pro se.

                    Kantrowitz, Goldhamer & Graifman, PC, attorneys for
                    respondent (William T. Schiffman, on the brief).

PER CURIAM

          Plaintiff appeals from May 26, September 8, and December 1, 2017

orders, which granted defendant's motion to terminate alimony due to retirement
and enforced plaintiff's obligation to pay her portion of college tuition for the

parties' daughter. We affirm.

      The following facts are taken from the motion record. The parties were

married in 1973 and divorced in 1997. The judgment of divorce incorporated a

marital settlement agreement (MSA) executed shortly before the divorce.

      The MSA required defendant to pay plaintiff $900 per week in alimony

and stated "[t]his obligation shall cease upon the death of the [h]usband, the

death of the [w]ife or the remarriage of the [w]ife. Either party shall have the

right to make application to the [c]ourt for an increase or decrease in the amount

of alimony based upon a change in circumstances." Regarding their daughter's

college education, the MSA stated

            the [h]usband and [w]ife, to the extent that each shall
            be financially able, shall pay for or contribute to said
            post-secondary education[.] . . . The choice of the
            institution is to be agreed upon between the [h]usband,
            the [w]ife, and the child involved. If there is any
            dispute as to whether either party is financially able or
            to the extent of either party's financial ability to
            contribute or pay for said education, such dispute may
            be submitted to a [c]ourt of competent jurisdiction.


Additionally, the MSA addressed equitable distribution, and ultimately, plaintiff

received $1,714,148.24 as her share of the marital assets.



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                                        2
      At the time of the divorce, plaintiff was forty-nine years of age and

defendant was fifty-five. Plaintiff owned a card shop, which closed in 2002 or

2003. Plaintiff's search for employment was unsuccessful. She then attempted

to start an on-line gift-basket business. However, the business discontinued

after two years of operation. In 2006, plaintiff attempted to start an online

jewelry business, which closed in 2012. Despite plaintiff's investments in the

various business ventures, she operated at a loss between 2004 and 2014. As a

result, she made multiple withdrawals from the retirement and pension funds she

received in equitable distribution.

      The parties' daughter resided with plaintiff at the time of the divorce and

the MSA required defendant to pay child support. In 2013, the parties' daughter

turned eighteen and moved into defendant's residence. In the fall of 2014, she

began attending college. As a result of this change in circumstances, defendant

ceased paying child support.

      In subsequent motion practice, plaintiff was ordered to pay child suppo rt

and contribute to the college obligation. Specifically, on December 3, 2015, the

court entered an order requiring "plaintiff [to] use [her] $18,000 account . . . to

pay 25% of [her daughter's] current and future college tuition," to pay $40

dollars per week to defendant in child support, and decreasing defendant's


                                                                           A-2515-17T2
                                        3
alimony from $900 to $700 per week. Plaintiff sought reconsideration of the

order, which was denied on March 21, 2016. Subsequently, plaintiff appealed

from the March 2016 order and we affirmed. See Frangipane v. Frangipane, No.

A-3590-15 (App. Div. Sept. 1, 2017) (slip op. at 7). Another order was entered

on October 11, 2016, enforcing plaintiff's obligation to pay for college. A fourth

order, entered on May 26, 2017, set the amount due from plaintiff for the college

expenses at $6047 based on the December 3, 2015 order.

      In May 2017, defendant filed a motion to terminate alimony and enforce

plaintiff's obligation to pay the $6047 for the college costs. Defendant certified

he had suffered a significant change of circumstance due to his poor health and

retirement at the age of seventy-five, which warranted termination of alimony.

Plaintiff cross-moved for discovery and enforcement of alimony.

      Following oral argument, the motion judge entered an order on September

8, 2017, scheduling a plenary hearing to address defendant's request to terminate

alimony and all of plaintiff's requests in the cross-motion. The order also denied

plaintiff relief from all of the prior orders requiring her to contribute to college

expenses, and enforced her obligation to pay the $6047 by suspending

defendant's alimony payments until the sum was met in the form of an alimony

credit to defendant.


                                                                            A-2515-17T2
                                         4
      In October 2017, before a hearing could occur, defendant filed a motion,

which in pertinent part, argued a plenary hearing was not required in order to

terminate alimony.    Plaintiff cross-moved, in pertinent part, for an upward

modification of alimony and relief from the previous orders requiring her to

contribute to the college expenses.     On December 1, 2017, following oral

argument, the motion judge entered an order terminating defendant's alimony

obligation and denying plaintiff relief from the previous orders requiring her

contribution to the college expenses. This appeal followed.

                                        I.

      "Appellate courts accord particular deference to the Family Part because

of its 'special jurisdiction and expertise' in family matters." Harte v. Hand, 433

N.J. Super. 457, 461 (App. Div. 2013) (quoting Cesare v. Cesare, 154 N.J. 394,

412 (1998)). "We do 'not disturb the "factual findings and legal conclusions of

the trial judge unless . . . convinced that they are so manifestly unsupported by

or inconsistent with the competent, relevant and reasonably credible evidence

as to offend the interests of justice."'" Gnall v. Gnall, 222 N.J. 414, 428 (2015)

(alterations in original) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of

Am., 65 N.J. 474, 484 (1974)).       Therefore, "'[o]nly when the trial court's

conclusions are so "clearly mistaken" or "wide of the mark" should we


                                                                          A-2515-17T2
                                        5
interfere[.]'" Ibid. (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J.

88, 104 (2008)). However, "all legal issues are reviewed de novo." Ricci v.

Ricci, 448 N.J. Super. 546, 565 (App. Div. 2017) (citing Reese v. Weis, 430 N.J.

Super. 552, 568 (App. Div. 2013)).

      On appeal, plaintiff raises the following points: (1) the motion judge

should have considered her health issues before terminating alimony pursuant

to N.J.S.A. 2A:34-23(j)(3), whereas defendant's health was not an issue because

he is retired and can afford to pay alimony; (2) there is no evidence plaintiff

could have saved for her retirement, or that she squandered her equitable

distribution, because her failed business ventures occurred before the divorce

and her post-judgment expenditure of assets was to fund litigation engendered

by defendant and to care for the parties' daughter while she was living with

plaintiff; (3) the judge did not address the level of plaintiff's financial

independence before terminating alimony; (4) the judge's findings that the

parties did not expect defendant to continue working were erroneous because

the MSA permits a termination of alimony only on either plaintiff or defendant's

death, and a retirement would only result in a modification; (5) alimony should

not have been terminated because defendant has the ability to pay it from his

retirement funds; (6) plaintiff was denied due process because she was ordered


                                                                          A-2515-17T2
                                        6
to contribute to college, but had not been consulted in the college selection

process as required by the MSA; (7) the judge erred by not limiting plaintiff's

college contribution obligation to $18,000 and instead assigning twenty-five

percent of the college expenses, which represents sixty-nine percent of her

income because of the termination of alimony; and (8) plaintiff urges us to

exercise original jurisdiction to decide her claims.

                                        II.

      As a general proposition, because marital settlement agreements are

voluntary and consensual, they are presumed valid and enforceable. See Massar

v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). Therefore, "[d]espite an

agreement to provide spousal support without limitation as to time, '[t]he duties

of former spouses regarding alimony are always subject to review or

modification by our courts based upon a showing of changed circumstances.'"

Glass v. Glass, 366 N.J. Super. 357, 370 (App. Div. 2004) (quoting Miller v.

Miller, 160 N.J. 408, 419 (1999)); see also N.J.S.A. 2A:34-23 (support orders

"may be revised and altered by the court from time to time as circumstances may

require.").

      "The party seeking modification has the burden of showing such 'changed

circumstances' as would warrant relief from the support or maintenance


                                                                         A-2515-17T2
                                        7
provisions involved." Lepis v. Lepis, 83 N.J. 139, 157 (1980) (citation omitted).

A court is required to hold a plenary hearing where the moving party has

demonstrated a prima facie change in circumstances.          Ibid. "[P]rima facie

[evidence] is . . . evidence that, if unrebutted, would sustain a judgement in the

proponent's favor." Baures v. Lewis, 167 N.J. 91, 118 (2001). The proper

inquiry is "whether the change in circumstance is continuing and whether the

agreement or decree has made explicit provision for the change." Lepis, 83 N.J.

at 152.

      N.J.S.A. 2A:34–23(j)(3) states: "When a retirement application is filed in

cases in which there is an existing final alimony order or enforceable written

agreement established prior to the effective date of this act, the obligor's

reaching full retirement age as defined in this section shall be deemed a good

faith retirement age." Pursuant to the statute, "'[f]ull retirement age' shall mean

the age at which a person is eligible to receive full retirement for full retirement

benefits under . . . the federal Social Security Act[,]" which is sixty-two to sixty-

six years of age with respect to an individual who attains early retirement age

after December 31, 2004, and before January 1, 2017. N.J.S.A. 2A:34–23; 42

U.S.C.A. § 416(l).




                                                                             A-2515-17T2
                                         8
      "An income reduction resulting from a 'good faith retirement' after age

sixty-five is a well-recognized change of circumstances event, prompting a

detailed review of the financial situation facing the parties to evaluate the impact

retirement has on a preexisting alimony award." Landers v. Landers, 444 N.J.

Super. 315, 320 (App. Div. 2016) (quoting Silvan v. Sylvan, 267 N.J. Super.

578, 581 (App. Div. 1993)). "[I]n determining whether to modify alimony based

upon retirement as a changed circumstance under Lepis, the 'pivotal' issue is

whether the advantage to the retiring spouse substantially outweighs the

disadvantage to the payee spouse." Boardman v. Boardman, 314 N.J. Super.

340, 346 (App. Div. 1998) (quoting Deegan v. Deegan, 254 N.J. Super. 350, 358

(App. Div. 1992)).

      N.J.S.A. 2A:34-23(j)(3) sets forth factors for the court's consideration to

determine whether an alimony obligor has demonstrated 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 and 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


                                                                            A-2515-17T2
                                         9
     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;

     (e) The reasonable expectations of the parties regarding
     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.

In Landers, we noted

     the rebuttable presumption included in subsection
     (j)(1), which places the burden on the obligee to
     demonstrate continuation of the alimony award once an
     obligor attains full retirement age, N.J.S.A. 2A:34–
     23(j)(1), is not repeated, but replaced by a different
     standard in subsection (j)(3). The latter provision
     follows the prior principles outlined in Lepis and its
     progeny, by mandating "the court shall 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-2515-17T2
                               10
                     Importantly, subsection (j)(3) elevates the ability
              of the obligee to have saved adequately for retirement,
              listed only as a factor under N.J.S.A. 2A:34–23(j)(1)(j),
              setting it apart from other considerations and requiring
              its explicit analysis. N.J.S.A. 2A:34–23(j)(3).

              [444 N.J. Super. at 323-24 (emphasis in original)
              (citation omitted).]

        At the outset, we note the parties waived a plenary hearing. As a result,

the motion judge evaluated the (j)(3) factors based upon their written

submissions, and we are satisfied the decision to terminate alimony was not an

abuse of discretion.

        The motion judge considered that defendant was seventy-five. He also

considered defendant's health, and noted he had cardiac problems, a pacemaker,

was hospitalized for cardiac arrhythmia, and required thirteen different

medications. Plaintiff did not rebut this evidence.

        In her certifications, plaintiff provided the judge a description of her

recurring health conditions. She stated she had a "decreased level of energy

which accompanies the age of [seventy,]" suffered from arthritis for the past

forty-five years, had been hard of hearing since the age of five, and suffered

from depression since her forties. Plaintiff also certified she had other long-

lasting issues, including sleep apnea, diabetes, a thyroid-condition, and memory

loss.

                                                                           A-2515-17T2
                                         11
      The motion judge did not explicitly address plaintiff's health conditions.

However, the record is self-evident her conditions existed long before any

modification of alimony was sought, and some conditions existed before the

parties had divorced. They do not justify denying defendant's motion on account

of his changed circumstances.

      As for plaintiff, the record demonstrates, the more relevant issue was her

expenditure of equitable distribution and failure to save. In this regard, the

motion judge noted "[p]laintiff took I.R.A. distributions for about [eleven] years

beginning in 2001. She withdrew [$]36,000 from her account between 2002 and

2005. . . . [S]he withdrew $29,388 [in 2006], $18,341 in 2008, $39,997 in 2012,

$17,128 in 2013, $60,333 in 2014 and $49,739 in 2015."

      The judge addressed the reasonable expectations of the parties and

concluded

            [the divorce is] now [twenty] years ago, [p]laintiff and
            [] defendant received an equal substantial amount of
            equitable distribution and again, [] plaintiff used most
            of hers.

                   Plaintiff had no reasonable expectation that []
            defendant would work forever nor that things would not
            change when he retired and he certainly had every
            reason to believe that at the time of the equitable
            distribution [] plaintiff would not dissipate and spend
            and use up any amount between [one] million and
            $1,714,148.24.

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                                       12
      Addressing plaintiff's level of financial independence, the judge stated:

            [P]laintiff has made a number of risky investments,
            squandered a substantial amount of money either
            through equitable distribution or subsequently gifted
            including that $300,000 loan on the house that was
            bought for . . . [$]345,000 in which she took a $40,000
            mortgage, [$]300,000 and then that was forgiven so
            basically you have [$]345,000 in equity in the home.
            And that's in [] plaintiff’s deposition of July 20, 2017,
            page 35.

                  So although she claims she is financially
            dependent on [] defendant, her claim, this [c]ourt finds
            is unreasonable because she had the opportunity to
            adequately save for her retirement.

      The motion judge considered plaintiff's contention that defendant had the

ability to continue paying alimony. He noted:

                  [Defendant] has certified and I do not have
            evidence to the contrary, that his income currently
            derives from taxable I.R.A. distributions, an annuity,
            Social Security, interest and dividends from assets. It
            says he is unable to continue to pay [] plaintiff. Again,
            and we stated this earlier and it's not in dispute as I
            understand it, he's not working part time or reduced
            work hours and again, as the Appellate Division noted,
            his current financial status is a result of investments and
            saving as opposed to [] plaintiff's, which was spending.

      The motion judge also made findings under the balance of the (j)(3)

factors as follows:

                 The generally accepted age of retirement is
            between [sixty-two and sixty-five]. [A prior motion

                                                                          A-2515-17T2
                                       13
            judge] noted two years ago and the Appellate Division
            noted that [] defendant could have retired and received
            full retirement benefits eight years ago but continued to
            work.

                  As I've already indicated a couple of times, it is
            not disputed that [] defendant has retired and as [the
            prior judge] noted, going back to the health, []
            defendant’s health has been deteriorating over the
            years. So the difference from two years ago and now
            in addition to everything else as I indicated, []
            defendant is two years older, his health is not better and
            he[] certainly is of the retirement age, which the
            Appellate Division addressed.

                   . . . [Defendant] worked many years passed the
            point that he needed to, I'm assuming he really liked his
            employment, liked the job, liked what he did for a
            living but his motives for retiring were health related,
            that's what he submits to the [c]ourt, he worked full
            time for [fifty-three] years and in his certification . . .
            he says he lacks the energy and stamina to continue the
            work.

      We reject plaintiff's contention that alimony could not be terminated on

the grounds of retirement because the MSA did not indicate as much. The MSA

states "[e]ither party shall have the right to make application to the [c]ourt for

an increase or decrease in the amount of alimony based upon a change in

circumstances." More importantly, even where there is express language barring

modification or termination based on a change in circumstances, the court is not

without the ability to modify an agreement. See Morris v. Morris, 263 N.J.


                                                                          A-2515-17T2
                                       14
Super. 237, 245-46 (App. Div. 1993). "The equitable authority of a court to

modify support obligations in response to changed circumstances . . . cannot be

restricted." Lepis, 83 N.J. at 149 (citing Smith v. Smith, 72 N.J. 350, 360

(1977)); see also N.J.S.A. 2A:34-23.

      The decision to terminate alimony on the basis of defendant's retirement

was supported by sufficient credible evidence in the record. The motion judge's

application of N.J.S.A. 2A:34-23(j)(3) was not an abuse of discretion.

                                        III.

      Finally, we reject plaintiff's claim the enforcement of her obligation to

contribute to college warrants reversal. This claim has already been adjudicated

with finality and is barred by res judicata.

      Res judicata "provides that 'a cause of action between parties that has been

finally determined on the merits by a tribunal having jurisdiction cannot be

relitigated by those parties . . . in a new proceeding.'" Innes v. Carrascosa, 391

N.J. Super. 453, 489 (App. Div. 2007) (alteration in original) (citing Velasquez

v. Franz, 123 N.J. 498, 505 (1991)).

            There are three basic elements to res judicata: (1) the
            judgment in the prior action must be valid, final, and on
            the merits; (2) the parties in the later action must be
            identical to or in privity with those in the prior action;
            and (3) the claim in the later action must grow out of


                                                                          A-2515-17T2
                                       15
            the same transaction or occurrence as the claim in the
            earlier one.

            [Rippon v. Smigel, 449 N.J. Super. 344, 367 (App. Div.
            2017) (citing Velasquez, 123 N.J. at 505-06).]

      Here, the initial order requiring "plaintiff [to] use [her] $18,000 account

. . . to pay [twenty-five percent] of [her daughter's] current and future college

tuition . . . and reasonable college expenses" was entered by the prior motion

judge on December 3, 2015. Plaintiff's attempts to challenge the order, at first

through reconsideration, and then on appeal, have been denied and are final.

      Furthermore, the motion judge did not modify plaintiff's obligation when

he enforced her obligation to pay her share of the college expenses. The prior

motion judge had already determined the sum owed by plaintiff and the judge

here deducted the sum plaintiff had already paid, leaving a $6047 balance, which

was satisfied by deducting the sum from her alimony receipts. For these reasons,

the motion judge was not required to revisit and recalculate the college

obligation anew and did not abuse his discretion.

      To the extent we have not addressed other arguments raised by plaintiff it

is because they lack sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(1)(E).

      Affirmed.


                                                                         A-2515-17T2
                                      16
