                                NOT FOR PUBLICATION WITHOUT THE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-3598-18T2

ROXANNE DUNNING,

          Plaintiff-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).

                   Respondent 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-duration alimony
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 live 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. We 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).

                                                                   A-3598-18T23598-18T2
                                        2
              [Id. at 412 (alteration in original).]

Under that limited standard 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 retirement 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 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
              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;



                                                                    A-3598-18T23598-18T2
                                           3
retirement. From documentary evidence and plaintiff's testimony 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 home: about $115,000. Defendant does not

provide a reference in the record supporting that contention, see R. 2:6-2(a)(5),

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

for the first time on appeal; as such it is not cognizable, see 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 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.
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                                       4
required 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 everyday" as supported by evidence of Facebook posts.

His 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 subsections (c) and

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

to the divorce and had not worked in the computer 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 he could afford




                                                                     A-3598-18T23598-18T2
                                         5
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 spend
            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 expectations 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.
                                                                   A-3598-18T23598-18T2
                                        6
to get another position in the computer field making the type of salary, around

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

disabled 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[.]

The 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 testimony 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 appear so

defensive on the stand?" The judge considered Facebook-post evidence to be

"consistent with someone who is employed as an English teacher in Vietnam.


                                                                     A-3598-18T23598-18T2
                                         7
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 was 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
            certified 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"


                                                                     A-3598-18T23598-18T2
                                        8
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 disability 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 disabled 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 alimony 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 that alternative relief.

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

not warranted. In testimony 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 testified that she is

in poor health, lives in a one-bedroom apartment she and her daughter share,


                                                                      A-3598-18T23598-18T2
                                         9
and although she took trips to the Caribbean and Florida, 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, substantial, credible

evidence." Cesare, 154 N.J. at 411-12. As such, we affirm.




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