Cynthia Van Houtte v. David Van Houtte

• Court: New Jersey Superior Court Appellate Division
• Decided: July 23, 2025
• Docket: A-3415-23
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3415-23

CYNTHIA VAN HOUTTE,

Plaintiff-Respondent,

v.

DAVID VAN HOUTTE,

Defendant-Appellant. _______________________

Argued May 13, 2025 – Decided July 23, 2025

Before Judges Susswein and Perez Friscia.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1156-17.

Andrew M. Shaw argued the cause for appellant (Shaw Divorce & Family Law, LLC, attorneys; Andrew M. Shaw, on the briefs).

Stephanie Frangos Hagan argued the cause for respondent (Hagan, Weisberg & Nunn, LLC, attorneys; Stephanie Frangos Hagan and Kaitlyn A. Lapi, on the brief).

PER CURIAM In this post-judgment matrimonial case, defendant David Van Houtte

appeals the May 24, 2024 Family Part order denying his motion to terminate his

alimony payments to plaintiff Cynthia Van Houtte. Defendant contends there

has been a change of circumstances based on plaintiff's alleged cohabitation with

her neighbor-boyfriend. After considering the record in light of the parties'

arguments and governing legal principles, we affirm.

I.

We discern the following pertinent facts and procedural history from the

record. Plaintiff and defendant married in April 1996 and have two children

together. On December 12, 2018, the parties entered into a property settlement

agreement (PSA) and the trial court entered a dual judgment of divorce

incorporating the PSA. The PSA provides that defendant will pay plaintiff

spousal support for a fixed term of 12.9 years—$6,625 per month for 4.3 years,

$5,500 per month for the next 4 years, and $4,500 per month for the remaining

4.6 years.

On March 19, 2024, defendant filed a motion to terminate alimony based

on a changed circumstance that plaintiff is cohabiting with her neighbor -

boyfriend. Defendant contends plaintiff and her neighbor-boyfriend (the

couple) have been cohabitating "since as early as 2015." Defendant submitted

A-3415-23 2 evidence from a private investigator's report (PI report) that shows plaintiff and

her neighbor-boyfriend live across the street from each other and spent time

together on fifteen of the nineteen days that they were surveilled. The PI report

also includes photographs depicting them wearing rings on the ring-finger of

their left hands.

The PI report also shows plaintiff walking on "her driveway carrying a

Tupperware . . . presumably to [the neighbor-boyfriend's] residence" twice in

the span of the nineteen-day investigation. The PI report further shows the

neighbor-boyfriend collecting plaintiff's garbage bin three times, clearing

plaintiff's driveway with a snow blower once, removing plaintiff's holiday

decorations once, and carrying multiple items from his car into her home once.

The PI report also includes photos from the couple's social media

accounts, including plaintiff's profile picture of the couple; the neighbor -

boyfriend's profile picture, which shows plaintiff, photos from three or four

vacations with their respective family members; and photos from six or seven

events with their friends.

On May 24, 2024, the trial court heard oral argument on defendant's

motion, after which the court concluded that defendant had not established a

prima facie case of cohabitation. The court found:

A-3415-23 3 I don't think there's been a prima facie showing by [defendant] as to anything more than maybe one of these factors. Certainly there's been nothing as to finances. There's been nothing as to share [the couple's] joint responsibility for living expenses. There's been nothing with regard to sharing household chores.

. . . At most we have a recognition of the relationship in the couple's social and family circle.

The trial court rejected defendant's argument that the first three years of the

couple's relationship was a dating relationship and has since changed into a

"more lasting relationship." The court stated,

Honestly, I couldn't find that persuasive. I think I find more persuasive is the fact that it was in place since 2015. It was there for three years before the judgment of divorce and it's just sustained the same character. If there was something that changed with regard to the relationship as measured against what was taking place, the activities that were taking place between 2015 and 2018.

The most obvious example is moving in together. That would've been an obvious change. But on its face, there's nothing that's been presented that shows that there's been a change. The only argument that's been presented is that it sustained.

The court concluded that defendant failed to establish "[a] prima facie showing

of cohabitation and therefore there's no need for discovery."

A-3415-23 4 This appeal followed. Defendant contends he made a prima facie showing

of cohabitation and the trial court therefore erred in denying his request for

discovery and a plenary hearing.

II.

We begin our analysis by acknowledging the foundational legal principles

governing this appeal. We review the trial court's decision denying defendant's

motion under a deferential standard, giving "due recognition to the wide

discretion . . . our law rightly affords to the trial judges who deal with these

matters." Cardali v. Cardali, 255 N.J. 85, 107 (2023) (quoting Spangenberg v.

Kolakowski, 442 N.J. Super. 529, 536 (App. Div. 2015)) (internal quotation

marks omitted). Appellate courts limit their review to the question of "whether

the court made findings inconsistent with the evidence or unsupported by the

record, or erred as a matter of law." Ibid. (quoting Reese v. Weis, 430 N.J.

Super. 552, 572 (App. Div. 2013)). "However, to the extent that the trial court

premised its decision on an interpretation of N.J.S.A. 2A:34-23(n), we review

de novo that legal determination." Ibid. (citing W.S. v. Hildreth, 252 N.J. 506,

518 (2023)).

Turning to substantive legal principles, "[a]limony is an 'economic right

that arises out of the marital relationship and provides the dependent spouse with

A-3415-23 5 "a level of support and standard of living generally commensurate with the

quality of economic life that existed during the marriage."'" Quinn v. Quinn,

225 N.J. 34, 48 (2016) (quoting Mani v. Mani, 183 N.J. 70, 80 (2005)). Alimony

"may clearly be the subject of a voluntary and consensual agreement undertaken

as part of the termination of marriage and divorce." Konzelman v. Konzelman,

158 N.J. 185, 194-95 (1999).

Alimony "may be revised and altered by the court from time to time as

circumstances may require." N.J.S.A. 2A:34-23. In Lepis v. Lepis, 83 N.J. 139,

150-59 (1980), the Supreme Court explained that alimony modification is

governed by the changed circumstances doctrine. "The equitable authority of a

court to modify support obligations in response to changed circumstances,

regardless of their source, cannot be restricted." Id. at 149.

"[T]he dependent spouse's cohabitation with another" is a changed

circumstance. Id. at 151. In 2014, the Legislature enacted N.J.S.A. 2A:34-23(n)

to provide a standard for trial courts to determine whether the record supports a

finding of cohabitation. Cardali, 255 N.J. at 103-04. N.J.S.A. 2A:34-23(n)

provides:

Alimony may be suspended or terminated if the payee cohabits with another person. Cohabitation involves a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges

A-3415-23 6 that are commonly associated with marriage or civil union but does not necessarily maintain a single common household.

When assessing whether cohabitation is occurring, the court shall consider the following:

(1) Intertwined finances such as joint bank accounts and other joint holdings or liabilities;

(2) Sharing or joint responsibility for living expenses;

(3) Recognition of the relationship in the couple's social and family circle;

(4) Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship;

(5) Sharing household chores;

(6) Whether the recipient of alimony has received an enforceable promise of support from another person within the meaning of subsection h. of R.S.25:1-5; and

(7) All other relevant evidence.

In evaluating whether cohabitation is occurring and whether alimony should be suspended or terminated, the court shall also consider the length of the relationship. A court may not find an absence of cohabitation solely on grounds that the couple does not live together on a full-time basis.

Under this statutory framework, the movant has the burden to show

changed circumstances. As the Supreme Court explained in Cardali,

A-3415-23 7 if the movant presents a certification supported by competent evidence as to at least some of the relevant factors, and if that evidence, if unrebutted, would sustain the movant's burden of proof as to cohabitation, the trial court should find that the movant has made a prima facie showing even if the spouse or civil union partner receiving alimony presents a certification contesting facts asserted by the movant.

[255 N.J. at 111.]

That said, we have emphasized that "a prima facie showing of cohabitation

can be difficult to establish[.]" Landau v. Landau, 461 N.J. Super. 107, 118

(App. Div. 2019) (citing Konzelman, 158 N.J. at 191-92). We noted that this

"is hardly a new problem" and "requiring the party seeking modification to

establish '[a] prima facie showing of changed circumstances . . . before a court

will order discovery of an ex-spouse's financial status,' . . . continues to strike a

fair and workable balance between the parties' competing interests." Id. at 118-

19 (alteration in original) (citation omitted) (quoting Lepis, 83 N.J. at 157). Our

Supreme Court in Cardali made clear in this regard that "[a] prima facie showing

of changed circumstances must be made before a court will order discovery of

an ex-spouse's financial status." 255 N.J. at 101 (alteration in original) (quoting

Lepis, 83 N.J. at 157).

A-3415-23 8 III.

We next apply these legal principles to the present matter. The trial court

determined that, while defendant established statutory factor three, he failed to

provide evidence to support the remaining factors and thus failed to present a

prima facie case. Because our review of the N.J.S.A. 2A:34-23(n) factors is de

novo, Cardali, 255 N.J. at 107, we consider each factor in turn. In doing so, we

note that a movant need not establish all six factors 1 to make a prima facie case.

Nor do we merely count the number of factors established against the number

for which no evidence is submitted. Id. at 110-11.

With respect to N.J.S.A. 2A:34-25(n)(1) ("[i]ntertwined finances such as

joint bank accounts and other joint holdings or liabilities"), defendant

acknowledges that he "could not present evidence with respect to the first

factor." The trial court determined, "[c]ertainly there's been nothing as to

finances." As a result, factor one does not advance defendant's burden to present

a prima facie showing of cohabitation.

With respect to factor two ("[s]haring or joint responsibility for living

expenses[,]" N.J.S.A. 2A:34-25(n)(2)), defendant asserts he presented "some

1 The seventh factor is essentially a catchall for relevant evidence that does not otherwise fall into any of the six enumerated factors. A-3415-23 9 evidence . . . (i.e., that plaintiff and [her neighbor-boyfriend] share

responsibility for living expenses in the form of food)." Plaintiff counters that

the Legislature did not envision that sharing food costs would establish factor

two because "[i]f eating dinner together was sufficient to meet factor [two], then

the floodgates of cohabitation applications would open."

The PI report shows plaintiff walking on "her driveway carrying a

Tupperware . . . presumably to [the boyfriend-neighbor's] residence" twice in

during the nineteen-day investigation. Defendant's complaint also asserts that

the couple "share meals [five to six] days a week."

On these asserted facts, we are not persuaded that sharing some meals

each week established sharing living expenses, which might include rent or

mortgage payments, utilities, and similar recurring household expenses. Thus,

on these facts, this factor does little to support a prima facie showing of

cohabitation.

With respect to factor three ("[r]ecognition of the relationship in the

couple's social and family circle[,]" N.J.S.A. 2A:34-25(n)(3)), defendant

contends that he presented "substantial evidence[,]" including photographs of

plaintiff and her neighbor-boyfriend travelling with their families, regularly

attending family events, forming bonds with their respective children,

A-3415-23 10 displaying each other in social media profile pictures, and "on at least one

occasion, the couple had been referred to by friends as [spouses]" Plaintiff

acknowledges that defendant established factor three but argues that "the

existence of a long-term dating relationship is not the only factor considered

when adjudicating motions for cohabitation." The trial court concluded that

factor three was met, stating "[a]t most we have a recognition of the relationship

in the couple's social media and family circle."

We agree that the record shows the couple's social and family circle

recognize their relationship—a circumstance that militates in favor of

defendant's underlying contention. We note, however, that does not necessarily

mean that the nature of their relationship has changed since the divorce was

entered, since some form of relationship predates the divorce.

As to factor four ("[l]iving together, the frequency of contact, the duration

of the relationship, and other indicia of a mutually supportive intimate personal

relationship[,]" N.J.S.A. 2A:34-25(n)(4)), defendant asserts that the PI report

showed that plaintiff and the neighbor-boyfriend "live across the street from one

another and spent time together on every single day of surveillance." Plaintiff

responds that they do not live together, maintain separate residences, and do not

spend extended periods of time together. Furthermore, plaintiff contends that

A-3415-23 11 defendant's PI report acknowledged that during the investigation, "there was not

one single overnight between [them]."

We note that the trial court did not expressly address factor four, but

instead explained that, since defendant claims the parties were dating in 2015,

this factor could not have been part of a change in circumstances. We agree

with the trial court that the evidence presented in the PI report does not

necessarily establish a change in circumstances as to justify modification of the

alimony order that was part of the PSA.

With respect to factor five ("[s]haring household chores[,]" N.J.S.A.

2A:34-25(n)(5)), defendant relies on the PI report which showed the neighbor -

boyfriend doing chores around plaintiff's house including "snow blowing,

tending to her garbage, taking down holiday decorations, taking plaintiff

shopping, and unloading plaintiff's groceries." Plaintiff argues in response that

"[u]nfortunately, the private investigator's short timeframe of surveillance (i.e.

[nineteen] days) provides a skewed narrative as [plaintiff] was sick with the flu

and pneumonia for most of the approximate two week timeframe." Moreover,

plaintiff maintains they do not share "laundry, grocery shopping, landscaping,

cleaning, cooking, etc."

A-3415-23 12 The trial court found, "[t]here's been nothing with regard to sharing

household chores." Our review of the PI report shows the neighbor-boyfriend

collecting plaintiff's garbage bin three times, clearing plaintiff's driveway with

a snow blower once, removing plaintiff's holiday decorations once, and carrying

multiple items from his car into her home once. We conclude that factor five

supports defendant's contention.

For factor six ("[w]hether the recipient of alimony has received an

enforceable promise of support from another person within the meaning of

subsection h. of R.S.25:1-5[,]" N.J.S.A. 2A:34-23(n)(6)), defendant stresses that

he "again had no capacity to investigate this issue in the absence of discovery."

Plaintiff argues that is a concession by defendant. The trial court found,

"[n]umber [six] doesn't even seem to apply, whether the receipt of alimony has

received an enforceable promise of support for the other person within the

meaning of the subsection. You don't have anything to indicate that."

We acknowledge that this factor would be difficult to establish without

discovery. We are reluctant, however, to put the cart before the proverbial horse

by essentially using the absence of proof as a basis for establishing a prima facie

showing as to entitle discovery. We reiterate our Supreme Court made clear that

establishing a prima facie showing is needed before a trial court may order

A-3415-23 13 discovery of an ex-spouse's financial status. See Cardali, 255 N.J. at 101. The

"fair and workable balance between the parties' competing interests," Landau,

461 N.J. Super. at 118-19, could be upset if discovery of a former spouse's

private financial affairs were ordered prematurely or based on speculation.

Considering the totality of the relevant factors, we are not persuaded that

defendant has presented evidence that, if unrebutted, sustains his burden as to

cohabitation. See Cardali, 255 N.J. at 111. We reiterate that the statute

provides, "[a] court may not find an absence of cohabitation solely on grounds

that the couple does not live together on a full-time basis." N.J.S.A. 2A:34-

25(n). Here, it bears emphasis–—and defendant's PI report acknowledges—

plaintiff and her neighbor-boyfriend not only do not live together but do not

have overnight stays. We are not persuaded, moreover, by defendant's

contention that this lifestyle arrangement was designed to avoid the termination

of alimony. We decline to speculate on the motivations undergirding their

relationship, focusing instead on the objective proofs defendant has presented.

In sum, we do not believe defendant has established a basis to overturn the trial

court's decision. See Cardali, 255 N.J. at 107-08.

A-3415-23 14 To the extent we have not specifically addressed them, any remaining

arguments raised by defendant lack sufficient merit to warrant discussion. R.

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

Affirmed.

A-3415-23 15