BELLA FRANGIPANE VS. RICHARD FRANGIPANE (FM-02-1092-96, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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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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
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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.
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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
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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
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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
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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).
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"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
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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[.]" . . .
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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.
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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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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
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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.
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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
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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.
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