                        NOT FOR PUBLICATION WITHOUT THE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-1566-16T2

LYDIA FEINSTEIN, n/k/a
LYDIA MAXWELL,

        Plaintiff-Appellant,

v.

MILES FEINSTEIN,

     Defendant-Respondent.
_____________________________

              Submitted March 13, 2018 – Decided June 21, 2018

              Before Judges Fasciale and Moynihan.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Bergen County,
              Docket No. FM-02-1292-95.

              Kopelman & Kopelman, LLP, attorneys for
              appellant (Michael S. Kopelman, of counsel and
              on the briefs).

              Grayson & Associates, LLC, attorneys for
              respondent (Bette R. Grayson and Elena K.
              Weitz, on the brief).

PER CURIAM

        Plaintiff Lydia Feinstein appeals from an October 6, 2016

order terminating both defendant Miles Feinstein's obligation to
pay alimony as of February 19, 2016 and a concomitant obligation

to maintain life insurance for plaintiff's benefit;1 a December 2,

2016 order denying plaintiff's motion for reconsideration of the

October 6 order; and a December 15, 2016 order denying the parties'

motion for counsel fees.2

     In her appellate brief, plaintiff contends,

          POINT I:   [THE TRIAL JUDGE] IMPROPERLY USED
          "STATISTICS" TO AMBUSH THE WIFE

          POINT II: THE HUSBAND DID NOT PROVE A CHANGE
          IN CIRCUMSTANCES.

          POINT III: THE ALIMONY FACTORS CITED BY [THE
          TRIAL JUDGE] ARE INADEQUATE TO SUPPORT HIS
          CONCLUSIONS.

          POINT IV: THIS COURT SHOULD AVOID REMAND BY
          MAKING ANY NECESSARY FINDINGS OF FACT PURSUANT
          TO THE CONSTITUTIONAL GRANT OF ORIGINAL
          JURISDICTION AND [RULE] 2:10-5.

     In her reply brief, plaintiff contends,3

          POINT I: CHILD SUPPORT GUIDELINES, PRESSLER,
          CURRENT N.J. COURT RULES APPENDIX IX-A TO R.
          5:6A, PARAGRAPH 12 (2017) IS INAPPLICABLE ON
          ITS FACE TO THIS ALIMONY CASE.


1
  On May 31, 2017, we ordered defendant to maintain the life
insurance policy and not alter the beneficiary designation pending
appeal.
2
  Plaintiff did not brief, and thus waived, her challenge to the
order denying counsel fees. See Sklodowsky v. Lushis, 417 N.J.
Super. 648, 657 (App. Div. 2011).
3
  The majority of plaintiff's reply points are the same or similar
to the arguments raised in her initial brief.


                                2                           A-1566-16T2
          POINT II: THE LAW-OF-THE-CASE DOCTRINE AND
          JUDICIAL          ESTOPPEL          PREVENT[]
          DEFENDANT/RESPONDENT'S ARGUMENT THAT HUSBAND
          DID   NOT  HAVE   TO   PROVE  A   CHANGE   IN
          CIRCUMSTANCES WHATSOEVER.

          POINT III: THE ISSUE OF CREDIBILITY IS A RED
          HERRING.

          POINT IV: THE EVIDENCE OF BIAS OF [THE TRIAL
          JUDGE] IS UNMISTAKABLE ON THIS RECORD.

          POINT V: THE PLENARY HEARING THAT TOOK PLACE
          IN THIS MATTER WAS TRULY WORTHLESS.

          POINT VI: IT WOULD BE UNJUST TO ORDER A REMAND
          IN THIS CASE.

We disagree and affirm.

     "In our review of a Family Part judge's motion order, we

defer to factual findings 'supported by adequate, substantial,

credible evidence' in the record."    Landers v. Landers, 444 N.J.

Super. 315, 319 (App. Div. 2016) (quoting Gnall v. Gnall, 222 N.J.

414, 428 (2015)).    "Reversal is warranted when we conclude a

mistake must have been made because the trial court's factual

findings are 'manifestly unsupported by or inconsistent with the

competent, relevant and reasonably credible evidence as to offend

the interests of justice . . . .'"   Ibid. (alteration in original)

(quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65

N.J. 474, 484 (1974)). "However, when reviewing legal conclusions,

our obligation is different; '[t]o the extent that the trial

court's decision constitutes a legal determination, we review it


                                3                           A-1566-16T2
de novo.'"      Ibid. (alteration in original) (quoting D'Agostino v.

Maldonado, 216 N.J. 168, 182 (2013)).

      Plaintiff first contends defendant's motion to terminate

alimony should have been denied without a plenary hearing because

defendant did not make a prima facie case of changed circumstances

to warrant termination.           The motion judge ordered the hearing

finding,   "a    determination     will    be   made   regarding     defendant's

request for an adjustment or termination of the amount of Spousal

Support pursuant of the terms of the parties' Property Settlement

Agreement."      The agreement provided that alimony "shall continue

until [defendant] reaches the age of [sixty-five] at which time

the   alimony    issue    shall   be   revisited       and   there   will     be    a

determination whether alimony should continue."

      Changed circumstances is one ground upon which an application

to terminate alimony may be based, Lepis v. Lepis, 83 N.J. 139,

146 (1980); but parties may also agree, in a divorce settlement,

on    circumstances      that   will   trigger     termination       of   alimony

obligations, see Konzelman v. Konzelman, 158 N.J. 185, 197 (1999).

"Parties to a divorce action may enter into voluntary agreements

governing the amount, terms, and duration of alimony, and such

agreements are subject to judicial supervision and enforcement."

Quinn v. Quinn, 225 N.J. 34, 48 (2016).



                                       4                                    A-1566-16T2
     Inasmuch as the parties' agreement clearly indicates their

mutual intent to revisit the alimony obligation when defendant

reached the age of sixty-five, the judge need not have found

changed   circumstances   in   order   to   consider   defendant's

application.   The fact that defendant waited approximately ten

years to invoke the review provision – during which plaintiff

received the full benefit of the agreement — does not abrogate

defendant's right of review.   See Petrillo v. Bachenberg, 263 N.J.

Super. 472, 480 (App. Div. 1993) ("Waiver [of a contract provision]

must be evidenced by a clear, unequivocal and decisive act from

which an intention to relinquish [a known right] can be based."

(emphasis added)), aff'd, 139 N.J. 472 (1995).   This case did not

involve a change in defendant's circumstances;4 the motion was not


4
  We recognize defendant asserted, as the judge noted in his
decision,

          that the plaintiff's need for alimony has
          substantially decreased because, among other
          reasons, her needs have diminished in light
          of the fact that their children are grown, the
          plaintiff has sold the marital residence for
          a significant profit, the plaintiff has moved
          into a less expensive residence, she has or
          is about to receive considerable inheritances,
          she is able to be gainfully employed, she
          obtained a real estate sales license which has
          enabled her to obtain sales commissions, has
          developed skills in several areas and has had
          sizeable gains on her investments.



                                 5                          A-1566-16T2
based on his inability to continue the payments.                    Hence, the judge

correctly     ruled   defendant    need           not     have   submitted     a   case

information    statement      pursuant       to       Rule   5:5-4(a);   his   ruling,

contrary to plaintiff's contention, did not show bias.5

     The    judge,    after   conducting          a     seven-day   plenary    hearing

during which he heard testimony regarding plaintiff's education

and experience, utilized New Jersey Department of Labor (DOL)

statistics to impute plaintiff's earnings — a practice plaintiff

contends, as she did in her reconsideration motion, was erroneous.

     A judge must perpend the statutory factors in determining an

alimony award:

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


This allegation, however, did not involve defendant's changed
circumstances or his ability to pay notwithstanding that the judge,
as he was obliged, considered defendant's circumstances as they
related to the statutory factors applicable to the motion.
N.J.S.A. 2A:34-23(b).
5
  Plaintiff's allegation of judicial bias — although tangentially
mentioned in her merits brief — was first raised in her reply
brief. Although we mention same here, that argument as well as
those made in Points II, IV and V, were improperly raised and will
not be further considered. See Borough of Berlin v. Remington &
Vernick Eng'rs, 337 N.J. Super. 590, 596 (App. Div. 2001) (stating,
"[r]aising an issue for the first time in a reply brief is
improper"). Our review of the record reveals the motion judge was
immensely patient and even-handed, especially considering some of
the boorish and seemingly sanctionable behavior he endured. Bias
cannot be inferred from adverse rulings against a party. Matthews
v. Deane, 196 N.J. Super. 441, 444-47 (Ch. Div. 1984). We perceive
none here.

                                         6                                     A-1566-16T2
(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, with neither
party having a greater entitlement to that
standard of living than the other;

(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;

(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;

                      7                           A-1566-16T2
            (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;

            (13) The nature, amount, and length                  of
            pendente lite support paid, if any; and

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

            [N.J.S.A. 2A:34-23(b).]

       In assessing the parties' "earning capacities, educational

levels, vocational skills, and employability" under the fifth

factor, N.J.S.A. 2A:34-23(b)(5), a trial court "may impute income

when   a   spouse   is   voluntarily    unemployed     [or]   underemployed,"

Tannen v. Tannen, 416 N.J. Super. 248, 261 (App. Div. 2010), aff'd

o.b., 208 N.J. 409 (2011). "[A] 'court has every right to appraise

realistically [a] defendant's potential earning power' and examine

'potential    earning    capacity'     rather   than   actual   income,   when

imputing the ability to pay support."            Elrom v. Elrom, 439 N.J.

Super. 424, 435 (App. Div. 2015) (second alteration in original)

(first quoting Lynn v. Lynn, 165 N.J. Super. 328, 341 (App. Div.

1979); and then quoting Halliwell v. Halliwell, 326 N.J. Super.

442, 448 (App. Div. 1999)).

       The Elrom court authorized reliance on the child support

guidelines in determining alimony obligations:




                                       8                              A-1566-16T2
                 This authority is incorporated in the New
            Jersey Child Support Guidelines . . . . The
            Guidelines state:

                 [i]f the court finds that either
                 parent is, without just cause,
                 voluntarily    underemployed    or
                 unemployed, it shall impute income
                 to that parent according to the
                 following priorities:

                        a. impute income based on
                        potential    employment     and
                        earning capacity using the
                        parent's     work      history,
                        occupational    qualifications,
                        educational background, and
                        prevailing job opportunities
                        in the region. The court may
                        impute income based on the
                        parent's former income at that
                        person's   usual    or   former
                        occupation   or   the   average
                        earnings for that occupation
                        as reported by the New Jersey
                        Department of Labor (NJDOL);

                 These legal precepts equally apply when
            establishing a party's obligation to pay
            alimony.

            [Ibid.    (alterations in original) (emphasis
            added)    (citations omitted) (quoting Child
            Support    Guidelines, Pressler & Verniero,
            Current   N.J. Court Rules, cmt. 12 on Appendix
            IX-A to   R. 5:6A at 2635 (2015)).]

The judge's use of DOL data to determine plaintiff's earning

capacity,    combined    with   his   assessment   of   her   background,

experience, and education was authorized by the court rules and

case law interpreting them.



                                      9                           A-1566-16T2
      We determine plaintiff's argument that the motion judge's

findings       regarding    the     alimony         factors     were     inadequate       is

meritless.       The judge made extensive findings of fact in his

twenty-six-page written opinion, including his negative assessment

of   plaintiff's      credibility        —    based      in   large    part   on    cross-

examination which the judge found to be "particularly effective"

— and applied them to each of the statutory factors.                          Our close

review    of    the   record      reveals         each   of   his     conclusions       were

"supported by adequate, substantial, credible evidence" in the

record.    Cesare v. Cesare, 154 N.J. 394, 412 (1998).                        We accord

even greater deference to a Family Part judge's fact-finding

"[b]ecause       of   the   family       courts'         special      jurisdiction       and

expertise in family matters," id. at 413, and defer to the trial

judge's    assessment       of    witnesses'        credibility        because     of    the

perspective the judge gains from seeing and hearing testimony, id.

at 412.    Viewed through that lens, the judge's findings of fact

and conclusions of law support the entry of his orders.

      We determine the balance of plaintiff's arguments to be

without    sufficient       merit   to       warrant      discussion     in   a    written

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

      Affirmed.




                                             10                                    A-1566-16T2
