ELENA KLYACHMAN VS. MICHAEL J. GARRITY(FM-02-1642-12, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 26, 2017
• Docket: A-0441-15T2
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0441-15T2

ELENA KLYACHMAN,

Plaintiff-Respondent,

v.

MICHAEL J. GARRITY,

Defendant-Appellant.

___________________________________

Argued November 2, 2016 – Decided June 26, 2017

Before Judges Fuentes, Carroll and Gooden Brown.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1642-12.

Michael E. Spinato argued the cause for appellant (Michael E. Spinato, P.C., attorney; Jacqueline M. Pimpinelli, on the brief).

Deirdre Rafferty Thompson argued the cause for respondent (Trapanese & Trapanese, attorney; Ms. Rafferty Thompson, on the brief).

PER CURIAM

Defendant Michael J. Garrity and plaintiff Elena Klyachman

married in October 1999 and divorced on July 24, 2012. They had

one child, a girl born in 2003 who will be fourteen years old in December 2017. The final judgment of divorce (JOD) incorporated

the terms of a Property Settlement Agreement (PSA), which the

parties voluntarily negotiated and entered into with the

assistance of independent counsel. The PSA addressed all of the

issues associated with the dissolution of the marriage.

This appeal concerns the interpretation and enforcement of

Articles III and IV of the PSA. Article III delineates defendant's

obligation to pay plaintiff limited duration alimony in the sum

of $21,000 per year for a period of six years, commencing August

1, 2012. At issue here is Subsection 3.3(d), which terminates

this alimony obligation if plaintiff "cohabitat[es] with an

unrelated person in accordance with applicable New Jersey Law."

Article IV of the PSA addresses the child's custody and

parenting time. It was supplemented by a Consent Order executed

by the parties on May 18, 2012. Article IV comprehensively and

meticulously describes the custodial and decision-making protocols

for apprising and involving the parents of any matter touching

upon the child's health and emotional well-being. By way of

example, Subsection 4.6 under Article IV "expressly" prohibits the

parties from doing

anything to alienate the child's affection or to color the child's attitude toward the other. On the contrary, both parties shall cooperate in every way to help the child better adjust [herself] to the circumstances

2 A-0441-15T2 as they now exist, and may in the future exist. Both parties shall conduct themselves in a manner that shall be best for the interest, welfare and happiness of the child, and neither party shall do anything, which shall adversely affect the morals, health and welfare of the child.

The Consent Order also requires the parties to "consult and

confer with each other with regard to all major issues relating

to the child's health, safety, welfare and education." Under the

Consent Order, the parties agree "to attempt to work together

[and] to make decisions that are in the best interest[s] of the

child."

On July 21, 2015, defendant filed a post-judgment motion in

the Family Part seeking to terminate his alimony support obligation

under Article III, Subsection 3.3(d) of the PSA, claiming plaintiff

was in a romantic relationship and "cohabiting" with an unrelated

man, as that term is defined in N.J.S.A. 2A:34-23(n). Defendant

also sought to modify the parenting time arrangement from one that

designated plaintiff as "the parent of primary residence" to a

shared-custody arrangement because he recently purchased a house

in the Borough of Fair Lawn that had a separate bedroom for his

teenaged daughter.

Plaintiff filed a cross-motion opposing defendant's

application and seeking to compel defendant to pay his fair share

of the child's extracurricular activities, provide proof he is

3 A-0441-15T2 maintaining life insurance as required under the PSA, and refrain

from disparaging plaintiff in the child's presence. In particular,

plaintiff claims defendant made derogatory remarks about her

cultural background as a Russian immigrant.

The only evidence presented to the Family Part in support of

the relief requested came from the parties' conflicting

certifications. After considering the arguments of counsel, the

judge denied both motions. With respect to defendant's motion,

the judge found his certifications did not allege sufficient facts

to establish cohabitation within the meaning of N.J.S.A. 2A:34-

23(n). The judge also found defendant did not present sufficient

facts to establish a prima facie case of changed circumstances to

warrant a plenary hearing concerning the custody of the child.

In this appeal, defendant argues the Family Part erred when

it found he did not assert sufficient facts to warrant a plenary

hearing on both of these issues. We agree and remand for the

Family Part to enter a case management order (CMO) permitting the

parties to conduct limited discovery on both issues raised by

defendant. At the conclusion of discovery, the judge shall

determine whether a plenary hearing is warranted and make factual

findings and conclusions of law based on the evidence presented

therein.

4 A-0441-15T2 I

Cohabitation

In the certification submitted in support of the motion to

terminate his limited duration alimony obligation, defendant

averred that plaintiff has had an ongoing romantic relationship

with her coworker for the past ten years, which predates the filing

of the divorce complaint. Defendant claims plaintiff has taken

many vacations in which both her daughter and her paramour's own

children shared a common residence. He also claims plaintiff and

this man openly present themselves as husband and wife at social

gatherings.

According to defendant, starting in June 2015, plaintiff's

paramour "rented the top floor of the two-family home where

[p]laintiff resides and occupies the first floor." Although

defendant does not know whether they have "intertwined their

finances," he claims they are cohabitating as husband and wife in

all other respects. Defendant argues he presented sufficient

evidence of cohabitation to justify court-ordered discovery

limited to plaintiff's finances.

In her response certification, plaintiff denied she has had

"a romantic relationship" with a coworker for ten years. But she

conceded she has "a boyfriend and [d]efendant is upset that I am

happy." Plaintiff denied living with anyone other than her

5 A-0441-15T2 daughter. She admitted she lives in a two-family house and "[t]he

man I am now dating . . . is renting the other apartment." However,

she characterized this arrangement as "neighbors" not cohabitants.

Plaintiff also confirmed that she and her daughter have vacationed

with her boyfriend and his children. She denied any suggestion

that she ever intermingled her finances with her boyfriend.

The Legislature requires a Family Part judge to consider the

following statutory factors in determining whether alimony should

be suspended or terminated:

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 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

6 A-0441-15T2 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 [N.J.S.A.]25:1-5;1 and

(7) All other relevant evidence.

[N.J.S.A. 2A:34-23(n) (emphasis added).]

The motion judge acknowledged that a court "may find

cohabitation in instances where the parties are not actually living

together." The judge also observed that "there doesn't appear to

be any intertwining of finances or expenses." With respect to the

duration of the relationship, the judge found "[t]hey have been

going out for a long time." The motion judge finally concluded:

[T]here are factors which weigh in favor of a finding of cohabitation, and there are factors, frankly, that weigh against it. I realize that often courts are compelled to conduct plenary hearings when there are material issues of disputed fact. I don't believe in this case, although I acknowledge that the plaintiff, again, there's no disputed fact here, the plaintiff and her boyfriend live under the quote "same roof" end quote. But . . . the evidence I've heard and the submissions and the certifications leads me to believe that the defendant has not made out a prima facie showing of cohabitation.

1 N.J.S.A. 25:1-5 refers to a legally binding written promise of support which replaced the common law oral agreements commonly known as "palimony."

7 A-0441-15T2 It is well-settled that disputes of material facts should not

be resolved on the basis of certifications. Palmieri v. Palmieri,

388 N.J. Super. 562, 564 (App. Div. 2006). This is because warring

certifications have the "unfortunate effect of yielding more heat

than light, ultimately leaving unresolved the central issues

raised by the parties." D.A. v. R.C., 438 N.J. Super. 431, 439

(App. Div. 2014). It is undisputed that Article III, subsection

3.3(d) of the PSA provides for the termination of alimony if

defendant shows plaintiff cohabitates "with an unrelated person

in accordance with applicable New Jersey law." The parties further

agree that the phrase "applicable New Jersey law" refers to the

standards established by the Legislature in N.J.S.A. 2A:34-23(n).

Here, the motion judge found plaintiff is in a long-term

romantic relationship with an unrelated man who now resides in the

same two-family dwelling that she occupies. Defendant also alleged

plaintiff and her paramour vacation together with both of their

children and present themselves as husband and wife in social

gatherings. Based on this record, we are satisfied the motion

judge erred in not affording defendant the opportunity to conduct

limited discovery to develop competent evidence to prove his case

in a plenary hearing. The Family Part Judge retains the discretion

to limit both the scope and method of discovery.

8 A-0441-15T2 With respect to the issue of alimony, we suggest the motion

judge limit the scope of discovery to the statutory factors in

N.J.S.A. 2A:34-23(n) and the method for gathering evidence to a

limited number of written interrogatories and production of

documents. The judge also has the discretion to permit the

deposition of the parties.

II

CHILD CUSTODY MODIFICATION

Defendant's current parenting time arrangement allows his

daughter to stay with him on Tuesdays and Thursdays, from 6:00

p.m. to 8:00 p.m., and on alternate weekends, from Friday through

Sunday night. Defendant claims that over the past several months,

his teenaged daughter becomes "sad and sullen as the time

approaches for our weekend parenting time to end." In support of

his request to modify the current custodial arrangement, defendant

emphasizes that he purchased a home two miles away from plaintiff's

residence in Paramus; the child has her own bedroom in that house.

In her certification in response to defendant's motion,

plaintiff claimed defendant "had and still has a serious drinking

problem." Plaintiff also noted that defendant "rents his basement

to a single male on weekends who may have similar problems[.]

. . . It is for this reason I am nervous when [the child] has to

spend overnights in [d]efendant's house." Plaintiff also alleged

9 A-0441-15T2 that defendant was violent and unduly possessive during their

marriage. With respect to her child's well-being, plaintiff

alleged that her daughter "returns home telling me that her father

degrades whatever activity [the child] is interested in

participating. He is attempting to mold [her] into the

isolationist he is."

Plaintiff and defendant acknowledged in their respective

certifications that their daughter has participated in

psychotherapy. But they disputed whether the therapy furthers her

best interests and sought the court's intervention on the matter.

The language in the parties' certifications reveals that they

inflexibly maintain conflicting positions about the best interests

of their teenaged daughter.

Addressing this issue, the motion judge made the following

ruling:

So I'm going to order that in lieu of a plenary hearing on the custody issue, I don't believe that we need to have . . . joint residential custody. I don't think [defendant] made a showing that [the child's] life needs to be disrupted. I understand that they live only two miles apart from each other, but I agree with plaintiff's counsel, I don't think that her life needs to be disrupted to that extent, but I do believe that the defendant should be entitled to more time with the child.

And I think given . . . the fact that the parties agreed to have a particular parenting time schedule back in 2012, it should be

10 A-0441-15T2 enforced, including overnights at the defendant's residence.

Defendant argues the motion judge erred in reaching this

decision without addressing any of the factors in N.J.S.A. 9:2-4.

We agree. "In contested cases, the court is required to make a

record of its reasons for its custody decision[.]" Kinsella v.

Kinsella, 150 N.J. 276, 317 (1997) (citing N.J.S.A. 9:2-4f). It

also "must reference the pertinent statutory criteria with some

specificity[.]" Ibid. (quoting Terry v. Terry, 270 N.J. Super.

105, 119 (App. Div. 1994)). Absent the statutory factors, a court

cannot determine if a custodial arrangement serves the best

interests of a child. D.A., supra, 438 N.J. Super. at 450.

Although not raised by the parties, we are compelled to note

that "[i]n family actions in which the court finds that either the

custody of children or parenting time issues, or both, are a

genuine and substantial issue, the court shall refer the case to

mediation in accordance with the provisions of [Rule] 1:40-5." R.

5:8-1 (emphasis added). Finally, given the child's age, we also

recommend that the Family Part consider whether it would be

appropriate to interview the child as provided by Rule 5:8-6. See

also D.A., supra, 438 N.J. Super. at 455 (holding "the decision

whether to interview a child in a contested custody case is left

to the sound discretion of the trial judge").

11 A-0441-15T2 III

Conclusion

We reverse the ruling of the Family Part and remand for the

court to permit defendant to conduct limited discovery to

determine: (1) whether defendant can prove plaintiff is not

entitled to limited duration alimony under Article III, Subsection

3.3(d) of the PSA, because she cohabitates with an unrelated man

under N.J.S.A. 2A:34-23(n); and (2) whether changing the custodial

arrangement of the parties' teenaged daughter serves her best

interests. In making these determinations, the Family Part shall

apply the factors in N.J.S.A. 9:2-4, refer the case to mediation

under Rule 5:8-1, and consider interviewing the child under Rule

5:8-6. We leave the scope and method of discovery to the sound

discretion of the Family Part.

Reversed and remanded. We do not retain jurisdiction.

12 A-0441-15T2