ROXANNE DUNNING VS. HARRY RITCHIE, JR. (FM-04-1373-13, CAMDEN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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).
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[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;
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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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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
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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.
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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.
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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"
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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,
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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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