LYDIA FEINSTEIN VS. MILES FEINSTEIN (FM-02-1292-95, BERGEN COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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.
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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
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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).
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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.
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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.
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(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;
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(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:
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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.
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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.
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