NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3590-15T2 A-5213-15T2 A-1177-16T2
BELLA FRANGIPANE,
Plaintiff-Appellant,
v.
RICHARD FRANGIPANE,
Defendant-Respondent. ____________________________________
Submitted August 22, 2017 – Decided September 1, 2017
Before Judges Manahan and Gilson.
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
In these back-to-back appeals consolidated for the purpose
of this opinion, plaintiff Bella Frangipane appeals from post- judgment Family Part orders. In light of our standard of review
and the deference afforded to Family Part judges, we affirm.
The parties were married in January 1973, and divorced in
July 1997. The parties have one child. The parties' entered into
a marital settlement agreement (MSA) on July 9, 1997, which
encompassed, among other issues, the equitable distribution of
assets, alimony, and child-related issues such as custody,
visitation and child support.1
On April 3, 2004, the parties agreed to a modification of the
MSA wherein payment of all sums owed to plaintiff of a marital
asset, the FC Capital Accumulation Account (FCCAA), was paid in
full except for 1258 shares in Merrill Lynch.
I.
We commence by reciting the procedural history of post-
judgment motion practice engaged in by the parties.
In July 2015, defendant filed a motion seeking various relief,
including the termination or reduction in his alimony obligation
to plaintiff. Plaintiff opposed the motion and filed a cross-
motion, which was opposed by defendant. After oral argument, two
orders were entered on August 11, 2015, referring the parties to
1 The child resided with plaintiff until the child's eighteenth birthday in June 2013. She then resided with defendant.
2 A-3590-15T4 attend economic mediation, establishing pendente lite child
support from plaintiff to defendant in the amount of forty dollars
per week, and scheduling the matter for a case management
conference (CMC) and intensive settlement conference. Although
the parties participated in mediation, the matters in difference
were not resolved.
In September 2015, plaintiff filed a motion seeking specified
financial documents from defendant. Defendant opposed the motion.
Three months later, subsequent to oral argument on the pending
motions, an order was entered which, among other matters, decreased
defendant's alimony obligation. Plaintiff filed a motion for
reconsideration. Oral argument was held and an order denying
plaintiff's motion was entered on March 21, 2016.
Plaintiff filed a notice of appeal. Upon receiving notice
of the appeal, the judge supplemented the record by letter pursuant
to Rule 2:5-1(b).
Additional motion practice continued. Plaintiff filed a
motion seeking an interest in the retirement fund known as the
Metropolitan Annuity (Annuity), which was part of the equitable
distribution under the MSA. Defendant opposed the motion and
submitted a cross-motion for attorney's fees. Plaintiff filed a
reply. The judge entered an order on April 25, 2016, that, in
part, granted plaintiff authority to hire a forensic accountant
3 A-3590-15T4 to assess whether the Annuity had any value at the time the divorce
complaint was filed.
Thereafter, defendant filed a motion for reconsideration. In
response, plaintiff filed a cross-motion to compel defendant to
pay fifty-percent of the alleged value of the Annuity. On June
29, 2016, the judge granted defendant's motion for reconsideration
and vacated the April 25, 2016 order. Plaintiff filed a notice
of appeal.
In August 2016, plaintiff filed a motion seeking
recalculation of the FCCAA distribution. Defendant filed a cross-
motion. After oral argument, an order was entered on October 11,
2016, which, in part, denied plaintiff's motion requesting the
judge's recusal, and denied plaintiff's motion for recalculation
of the FCCAA distribution. Plaintiff filed a notice of appeal.
II.
We initially recite our standard of review that governs our
analysis on these appeals.
The scope of our review of the Family Part's orders is
limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). We owe
substantial deference to the Family Part's findings of fact because
of that court's special expertise in family matters. Id. at 413.
Thus, "[a] reviewing court should uphold the factual findings
undergirding the trial court's decision if they are supported by
4 A-3590-15T4 adequate, substantial and credible evidence on the record."
MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (alteration
in original) (quoting N.J. Div. of Youth & Family Servs. v. M.M.,
189 N.J. 261, 279 (2007)). "That deference is especially
appropriate 'when the evidence is largely testimonial and involves
questions of credibility.'" Id. at 254 (quoting Cesare, supra,
154 N.J. at 412).
While we owe no special deference to the judge's legal
conclusions, Manalapan Realty, L.P. v. Township Committee of
Manalapan, 140 N.J. 366, 378 (1995), "we 'should 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' or when we
determine the court has palpably abused its discretion." Parish
v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (alteration in
original) (quoting Cesare, supra, 154 N.J. at 412).
We will only reverse the judge's decision when it is necessary
to "'ensure that there is not a denial of justice' because the
family court's 'conclusions are [] "clearly mistaken" or "wide of
the mark."'" Id. at 48 (alteration in original) (quoting N.J.
Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).
5 A-3590-15T4 The scope of review for a denial of a motion for
reconsideration is abuse of discretion. Cummings v. Bahr, 295
N.J. Super. 374, 389 (App. Div. 1996). Reconsideration is "a
matter within the sound discretion of the [c]ourt, to be exercised
in the interest of justice[.]" Palombi v. Palombi, 414 N.J. Super.
274, 288 (App. Div. 2010) (quoting D'Atria v. D'Atria, 242 N.J.
Super. 392, 401 (Ch. Div. 1990)). Governed by Rule 4:49-2,
reconsideration is appropriate for a "narrow corridor" of cases
in which either the court's decision was made upon a "palpably
incorrect or irrational basis," or where "it is obvious that the
[c]ourt either did not consider, or failed to appreciate the
significance of probative, competent evidence." Ibid. (quoting
D'Atria, supra, 242 N.J. Super. at 401). We also maintained:
Alternatively, if a litigant wishes to bring new or additional information to the Court's attention which it could not have provided on the first application, the Court should, in the interest of justice (and in the exercise of sound discretion), consider the evidence. Nevertheless, motion practice must come to an end at some point, and if repetitive bites at the apple are allowed, the core will swiftly sour. Thus, the Court must be sensitive and scrupulous in its analysis of the issues in a motion for reconsideration.
[Cummings, supra, 295 N.J. Super. at 384 (quoting D'Atria, supra, 242 N.J. Super. at 401-02).]
6 A-3590-15T4 The denial of a motion seeking recusal is reviewed under an
abuse of discretion standard. State v. McCabe, 201 N.J. 34, 45
(2010) (citing Panitch v. Panitch, 339 N.J. Super. 63, 71 (App.
Div. 2001)). The disposition of a recusal motion is entrusted to
the "sound discretion" of the judge whose recusal is sought.
Pressler & Verniero, Current N.J. Court Rules, comment on R. 1:12-
2 (2017) (citing Chandok v. Chandok, 406 N.J. Super. 595, 603
(App. Div.), certif. denied, 200 N.J. 207 (2009)).
III.
In A-3590-15, plaintiff appeals the March 21, 2016 order
denying her motion for reconsideration. The motion related to a
December 3, 2015 order that required plaintiff to pay $40 per week
to defendant in child support, pay 25% of the child's current and
future college expenses totaling $18,000, lowered defendant's
alimony obligation from $900 to $700 per week, and other relief.
The reconsideration order denied plaintiff's request to
vacate the December 3, 2015 order regarding defendant's alimony
obligation. It also denied plaintiff's request to compel defendant
to amend his case information statement (CIS) and to produce
additional financial statements. The order further maintained
plaintiff's obligation to contribute to the child's college
expense, vacated defendant's child support obligation, and denied
a plenary hearing and an award of counsel fees.
7 A-3590-15T4 In reaching our determination, we initially address the
issues subject to our review. In plaintiff's notice of appeal and
CIS, she specifically designates the March 21, 2016 order as that
being appealed. Thereafter, in plaintiff's merit brief, she raised
as points on appeal: (1) harmful error in that she was not informed
that the issue of alimony would be the subject of the November 10,
2015 hearing, believing it would be a CMC; (2) the judge erred
regarding the alimony reduction and evidentiary decisions; and (3)
the judge was biased. In response, defendant argued that only
those matters addressed denying the motion for reconsideration in
the order under appeal are reviewable by this court. We agree and
limit our review to the "four corners" of the order and the letter
supplementing the order per Rule 2:5-1(b).
Under Rule 2:5-1(f)(3)(A), "[i]t is only the orders
designated in the notice of appeal that are subject to the appeal
process and review." Petersen v. Meggitt, 407 N.J. Super. 63, 68
n.2 (App. Div. 2009) (alteration in original) (citations omitted).
Therefore, where a notice of appeal designates only the order
denying reconsideration, and not the order of which
reconsideration was sought, that original order "is not before us
for review," and we address only the order denying reconsideration.
Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 461-62 (App.
8 A-3590-15T4 Div.) (citation omitted), certif. denied, 174 N.J. 544 (2002); see
also R. 2:4-3(e).
Although this court, in the exercise of its discretion, may
consider issues not addressed in the notice of appeal, we discern
no basis to exercise that discretion here. Unlike in other cases
where we have exercised discretion, here, the issues related to
matters other than the reconsideration order were not fully briefed
on appeal. See Calcaterra v. Calcaterra, 206 N.J. Super. 398,
402-03 (App. Div. 1986). As such, we hew to our proscribed scope
of review and address only those matters implicated by the order
denying reconsideration. Fusco, supra, 349 N.J. Super. at 462.
As noted, subsequent to the appeal, pursuant to Rule 2:5-
1(b), the judge provided a letter supplementing the record. The
judge augmented the bases for his holding decreasing defendant's
alimony obligation premised upon the statutory factors set forth
in N.J.S.A. 2A:34-23.2 The judge held:
The first factor, found in N.J.S.A. 2A:34-23(k)(1) is the reason for any loss of income. Defendant obligor turned [seventy- four] years old on January 27, 2016. Due to his increased age, the defendant alleged that
2 Effective September 10, 2014, the Legislature amended N.J.S.A. 2A:34-23 to add a new subsection (j). Subsection (j) lists objective considerations a court must examine and weigh when reviewing an obligor's request to modify or terminate alimony when an obligor retires. L. 2014, c. 42, § 1. Here, defendant had not retired. Thus, the judge applied the factors set forth in subsection (k). N.J.S.A. 2A:34-23 (k).
9 A-3590-15T4 he was unable to work [forty-hour] weeks and provided a copy of his recent paystubs which indicated that he was working part-time hours. Defendant could have retired and received full retirement benefits eight years ago, yet defendant continues to work.
The judge then noted the issues relating to defendant's
health:
The defendant also states that his health has been deteriorating over the years. Defendant provided a lengthy list of diagnoses and medications prescribed by Dr. Salvatore Focella, M.D. Although the documentation provided was from 2011, the [c]ourt, taking into consideration defendant's age, found defendant's proofs on this issue to be credible.
Although the defendant is over the age of full retirement and suffers from medical issues, he continues to work and earns an above-average salary.
The judge next addressed the issue of equitable distribution:
The [c]ourt is aware that defendant's assets have allegedly continued to grow since the date of the 1997 divorce. Plaintiff received an equal, substantial amount of equitable distribution and, as plaintiff freely admits, she used most, if not all of it. However, defendant should not be penalized for making smart investment decisions with his respective share of equitable distribution while plaintiff spent all of hers arguably on her self-owned failing business.
The judge then addressed the source of income for plaintiff:
Under N.J.S.A. 2A:34-23(k)(4), the [c]ourt has to look at the income of the
10 A-3590-15T4 obligee, the obligee's circumstances, and the obligee's reasonable efforts to obtain employment. Plaintiff owns and operates her own business, which, as plaintiff admits, is a failing investment as plaintiff continues to lose money. In 2014, plaintiff listed the sum of $19,297 as her business income loss on her tax returns. The [c]ourt is aware that plaintiff is [sixty-nine] years old and also suffers from some medical problems, although no corroborating documentation has been provided to this [c]ourt. Although it may be difficult for the plaintiff to seek gainful employment, if plaintiff simply terminates her business, her income would increase by approximately $20,000 per year. This [c]ourt further imputed the sum of $20,000 per year to the plaintiff as the [c]ourt felt that plaintiff has the ability to maintain a minimum wage job.
The judge concluded by noting both parties are over the age of
retirement.3
Alimony "may be revised and altered by the court from time
to time as circumstances may require." N.J.S.A. 2A:34-23. To
make such a modification, the movant must show "changed
circumstances." Lepis v. Lepis, 83 N.J. 139, 146 (1980) (citation
omitted). Temporary or anticipated circumstances do not warrant
modification. Id. at 151. Rather, "[t]he party seeking
modification has the burden of showing such 'changed
circumstances' as would warrant relief from the support or
3 As the judge aptly noted during oral argument, the MSA was silent as to whether alimony was "permanent" or for a "fixed term."
11 A-3590-15T4 maintenance provisions involved." Id. at 157 (citing Martindell
v. Martindell, 21 N.J. 341, 353 (1956)).
"There is . . . no brightline rule by which to measure when
a changed circumstance has endured long enough to warrant a
modification of a support obligation. Instead, such matters turn
on the discretionary determinations of Family Part judges, based
upon their experience . . . [and all] relevant circumstances
presented[.]" Donnelly v. Donnelly, 405 N.J. Super. 117, 128
(App. Div. 2009) (quoting Larbig v. Larbig, 384 N.J. Super. 17,
23 (App. Div. 2006)). "Each and every motion to modify an alimony
obligation 'rests upon its own particular footing and the appellate
court must give due recognition to the wide discretion which our
law rightly affords to the trial judges who deal with these
matters.'" Larbig, supra, 384 N.J. Super. at 21 (quoting
Martindell, supra, 21 N.J. at 355). Furthermore, since the Family
Part has special expertise in family matters and has had the
opportunity to hear and see the witnesses testify firsthand, its
findings of fact should be accorded deference on appeal. Cesare,
supra, 154 N.J. at 412-13. Thus, an alimony modification will not
be overturned on appeal absent an abuse of discretion:
To vacate a trial court's findings in a proceeding modifying alimony, an appellate court must conclude that the trial court clearly abused its discretion, failed to consider "all of the controlling legal
12 A-3590-15T4 principles," or it must otherwise be "well satisfied that the finding[s] [were] mistaken," or that the determination could not "reasonably have been reached on sufficient credible evidence present in the record after consideration of the proofs as a whole."
[Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993) (internal citations omitted).]
Retirement may constitute a change in circumstances
warranting a modification or elimination of alimony. See, e.g.,
Silvan v. Sylvan, 267 N.J. Super. 578, 581 (App. Div. 1993); Deegan
v. Deegan, 254 N.J. Super. 350, 358-59 (App. Div. 1992). The
court's analysis differs depending on whether the retirement was
voluntary or involuntary. See Deegan, supra, 254 N.J. Super. at
355-56. "Where the change is involuntary, all that is required
is an analysis of the . . . parties' financial circumstances."
Id. at 355. When the change is voluntary, courts consider a number
of factors, including the age and health of the retiring party,
whether the retirement was made in good faith, the retiring
spouse's ability to pay alimony following the retirement, the
expectation of the parties at the time the MSA was executed, and
the ability of the dependent spouse to provide for him or herself.
Id. at 357-58. After reviewing these factors, the court must
determine "whether the advantage to the retiring spouse
13 A-3590-15T4 substantially outweighs the disadvantage to the payee spouse."
Id. at 358.
Applying these principles, we are satisfied the trial court
did not abuse its discretion in finding there was a change in
circumstances sufficient to modify defendant's alimony obligation.
Regarding plaintiff's argument that a plenary hearing was
required, in footnotes within the order, the judge noted
plaintiff's argument that on the hearing date of the motion there
was going to be a CMC, and that the issues would be decided after
a plenary hearing. The judge rejected both arguments. We discern
no basis for error in those determinations.
First, the judge held, and we agree, that plaintiff was duly
notified as to the nature of the hearing prior to the return date.
While plaintiff may have misunderstood what was to occur, that
misunderstanding was not the product of either the defendant's or
the judge's conduct. Further, the hearing record evidences that
plaintiff suffered no prejudice by her "misunderstanding" as she
was able to provide arguments in opposition to the relief sought
by defendant.
Second, in deciding whether to conduct a plenary hearing, a
critical factor is "whether the movant has made a prima facie
showing that a plenary hearing is necessary." Hand v. Hand, 391
N.J. Super. 102, 106 (App. Div. 2007). This analytic factor was
14 A-3590-15T4 crafted with an eye to judicial economy, given that "practically
every dispute in the matrimonial motion practice involves a factual
dispute of some nature[.]" Klipstein v. Zalewski, 230 N.J. Super.
567, 576 (Ch. Div. 1988). "An inflexible rule requiring a plenary
hearing" on every matrimonial application "would impede the sound
administration of justice, impose an intolerable burden upon our
trial judges, and place an undue financial burden upon litigants."
Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976). Since
we conclude that there were no facts in dispute relative to the
request to modify alimony, a plenary hearing was not required.
IV.
In A-5213-15, plaintiff appeals an order dated June 29, 2016,
granting defendant's motion for reconsideration and vacating a
prior order dated April 25, 2016. The orders concerned the MSA
executed during the divorce proceedings in 1997. Specifically,
the appeal is related to the Annuity that plaintiff claims was
improperly distributed. After considering the record, we are
satisfied that the arguments raised in this appeal are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E). We affirm substantially for the reasons stated
by the judge in the June 29, 2016 order. We add only the following.
The order under review included an explanatory footnote. The
footnote stated that the Family Part did not comprehend the nature
15 A-3590-15T4 of plaintiff's original motion, however, upon reconsideration, it
was apparent that plaintiff was aware of the existence of the
Annuity as of 1996. The footnote also stated that the judge found
no fraud or deceit on behalf of defendant.
Given both the deference afforded to Family Part judges
regarding issues of credibility, as well as our consideration of
the record, we concur that there was ample support for the holding
that plaintiff had knowledge of the Annuity at the time of the
divorce and that defendant did not engage in acts of fraud or
deception. See Cesare, supra, 154 N.J. at 411-12.
In A-1177-16, plaintiff appeals the denial of a motion for
recusal and paragraph two of the October 11, 2016 order. Paragraph
two referenced the distribution of the FCCAA that plaintiff
challenged as the product of defendant’s fraudulent
misrepresentation which she argues required a re-accounting of the
distribution.
Having considered plaintiff’s arguments in light of the
record, we conclude they lack sufficient merit to require
discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm
substantially for the reasons stated by the judge on the record
and add only the following.
16 A-3590-15T4 Plaintiff contends that the judge erred by denying her motion
for his recusal. She argues that the judge was required to recuse
himself because of his preconceptions of the parties' intentions,
which influenced his decisions.4
Rule 1:12-1 provides that a judge shall be disqualified and
precluded from sitting on certain matters, including those in
which there is "any . . . reason which might preclude a fair and
unbiased hearing and judgment, or which might reasonably lead
counsel or the parties to believe so." R. 1:12-1(g). Under the
rule, a judge is disqualified from a matter if an individual, who
observes the judge's conduct, would have "a reasonable basis to
doubt the judge's integrity and impartiality[.]" In re Reddin,
221 N.J. 221, 223 (2015).
Pursuant to the circumstances presented here, we conclude
that an individual, aware of the relevant facts, would have no
reasonable basis to doubt the judge's integrity or his ability to
handle the matter impartially. "[A] judge need not 'withdraw from
a case upon a mere suggestion that he is disqualified unless the
alleged cause of recusal is known by him to exist or is shown to
be true in fact.'" Chandok, supra, 406 N.J. Super. at 603 (quoting
Panitch, supra, 339 N.J. Super. at 66); see also Strahan v.
4 Plaintiff included more than one request for the judge to recuse himself.
17 A-3590-15T4 Strahan, 402 N.J. Super. 298, 318 (App. Div. 2008) ("Bias cannot
be inferred from adverse rulings against a party.").
We regard plaintiff's argument that she was owed 500 shares
from the FCCAA as without basis. Stated succinctly, there is
substantial credible evidence within the record that supports the
judge's finding that all shares of the FCCAA due plaintiff per the
MSA were appropriately distributed to her. See Parish, supra, 412
N.J. at 47. On the other hand, there is no proof that defendant
engaged in fraud or deceit relative to that distribution. Ibid.
VI.
Plaintiff’s remaining arguments raised on these three
appeals, not specifically addressed herein, lack sufficient merit
to require discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
18 A-3590-15T4