NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5572-17T2
JAMES WATKINS,
Plaintiff-Appellant/ Cross-Respondent,
v.
AMANDA HOWARD, f/k/a AMANDA WATKINS,
Defendant-Respondent/ Cross-Appellant. __________________________
Argued September 25, 2019 – Decided October 21, 2019
Before Judges Koblitz and Mawla.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-14666-92.
Steven Resnick argued the cause for appellant/ cross- respondent (Ziegler, Zemsky & Resnick, attorneys; Steven Resnick and Ruth Kim, on the briefs).
Paul Joseph Concannon argued the cause for respondent/cross-appellant (Dario Albert Metz & Eyerman, LLC, attorneys; John E. Finnerty and Paul Joseph Concannon, on the briefs).
PER CURIAM
Plaintiff James Watkins appeals from June 27 and 29, 2018 post-judgment
orders, which denied his motion to terminate alimony and life insurance based
upon cohabitation, for discovery and a plenary hearing. Defendant Amanda
Howard cross-appeals from the June 27 order, which denied her request for
counsel fees. We affirm on the appeal, but reverse and remand on the cross-
appeal.
We take the following facts from the record. The parties married in 1968,
and divorced in 1993. Two children were born of the marriage, who are
emancipated. The Judgment of Divorce incorporated a property settlement
agreement (PSA). Relevant to this appeal, paragraph nineteen of the PSA stated
plaintiff would pay defendant $3000 per month in permanent alimony. It also
stated the "alimony payments shall continue until the death of [defendant], death
of [plaintiff], re-marriage of [defendant,] or the [defendant]'s entry into a
relationship tantamount to marriage."
Five months after the judgment of divorce, plaintiff remarried and moved
to Cape May County. Defendant remained in Bergen County. The parties'
A-5572-17T2 2 daughter lives with her family in Massachusetts, and their son resides with his
family in Colorado.
Defendant began a dating relationship with K.C.1 in 1998, which
continues to present day. In 2009, plaintiff sought a reduction or termination of
alimony based upon his retirement, a financial change in circumstances
occasioned by his wife's illness and defendant's increased earnings, and
defendant's cohabitation with K.C.
Regarding the cohabitation, plaintiff alleged defendant and K.C. were
spending four-to-five nights per week at each other's residence. He alleged they
vacationed together and were involved in various aspects of each other's social
and family lives. In 2000, K.C. escorted defendant down the aisle at her
daughter's wedding and appeared in family photos from the wedding. He also
accompanied defendant to the birth of her first grandchild in 2003. In 2006, he
attended another grandchild's first birthday. In 2008, he attended Christmas
with defendant at her daughter's house. Plaintiff alleged the grandchildren
referred to K.C. as "grandpa [K]" and K.C. took on a grandfatherly role.
Defendant admitted the dating relationship with K.C., but denied he was
a live-in boyfriend. She certified "[t]he facts are . . . there is a man I date, and
1 We utilize K.C.'s initials to protect his privacy because he is not a party. A-5572-17T2 3 during most weekends we spend one night together either at my apartment or
his apartment." She admitted traveling with K.C. to visit each other's families,
but denied sharing expenses or financial resources with K.C.
The court denied plaintiff's request to terminate alimony, finding plaintiff
did not establish a prima facie case of cohabitation. However, the court reduced
plaintiff's alimony to $2250 per month based upon his retirement.
In 2018, plaintiff filed another motion to terminate his alimony and life
insurance obligations retroactive to 2014, based on defendant's cohabitation.
Defendant cross-moved to deny plaintiff's motion, enforce the life insurance
obligation, and sought counsel fees and costs.
Plaintiff's application alleged the same facts as the 2009 motion, with a
few updates. Plaintiff attached a two-page certification from each of the parties'
children, which repeated plaintiff's narrative that defendant and K.C. were in a
dating relationship. The certification from the parties' daughter claimed K.C.
drove defendant to Massachusetts to visit her family, and repeated that K.C.
participated in her wedding, was present for the birth of her child, and her
children referred to him as "[g]randpa."
The new facts alleged in the daughter's certification asserted K.C.
accompanied defendant on vacation to visit defendant's son in Colorado in 2013.
A-5572-17T2 4 The certification also alleged K.C. attended her aunt's eightieth birthday with
defendant in 2017. The certification further stated: "In the summer of 2017, I
came to New Jersey with my husband and my children to visit my family. My
children stayed at [K.C.'s] home, with my mother and [K.C.]. My husband and
I stayed at my mother's one-bedroom condominium only a few miles away."
The son's certification mostly mirrored the daughter's.
Plaintiff's certification alleged K.C. moved to within approximately three-
quarters of a mile from defendant's home in 2016. He alleged K.C. and
defendant had access to each other's residences, but offered nothing to prove his
claim. Plaintiff's certification attached a photograph posted by a grandchild
taken during a 2014 trip to Colorado to visit the parties' son, referring to K.C.
and defendant as his "grandparents." Plaintiff claimed the parties' fifteen-year-
old granddaughter effectively sees K.C. as defendant's husband.
Moreover, plaintiff alleged, "[d]efendant does not drive. [K.C.] is solely
responsible for transporting [defendant] anywhere she needs to go." He argued
"defendant is dependent upon [K.C.]," and "[b]y being solely responsible for her
transportation, he is effectively responsible for all of her . . . expenses"
associated with transportation. He alleged defendant and K.C. "share in the
costs for travel and meals during [their] trips."
A-5572-17T2 5 Defendant denied these assertions noting neither plaintiff nor their
children lived close enough to witness her driving habits. She certified she
"drive[s] all the time, but do[es] not like to drive on highways, and therefore,
usually use[s] car services." Additionally, she stated when she and K.C. are on
a trip together, involving highway driving, he drove. Defendant certified she
often travels alone and in those instances, travels by air or train.
Defendant certified she is not dependent on K.C. for transportation. She
noted her vehicle is titled, registered, and insured in her name. She drives it
roughly five-to-six days a week, including shopping in town, running errands,
traveling to the gym, and visiting dentists and doctors — all of whom are located
near her residence.
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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-5572-17T2
JAMES WATKINS,
Plaintiff-Appellant/ Cross-Respondent,
v.
AMANDA HOWARD, f/k/a AMANDA WATKINS,
Defendant-Respondent/ Cross-Appellant. __________________________
Argued September 25, 2019 – Decided October 21, 2019
Before Judges Koblitz and Mawla.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-14666-92.
Steven Resnick argued the cause for appellant/ cross- respondent (Ziegler, Zemsky & Resnick, attorneys; Steven Resnick and Ruth Kim, on the briefs).
Paul Joseph Concannon argued the cause for respondent/cross-appellant (Dario Albert Metz & Eyerman, LLC, attorneys; John E. Finnerty and Paul Joseph Concannon, on the briefs).
PER CURIAM
Plaintiff James Watkins appeals from June 27 and 29, 2018 post-judgment
orders, which denied his motion to terminate alimony and life insurance based
upon cohabitation, for discovery and a plenary hearing. Defendant Amanda
Howard cross-appeals from the June 27 order, which denied her request for
counsel fees. We affirm on the appeal, but reverse and remand on the cross-
appeal.
We take the following facts from the record. The parties married in 1968,
and divorced in 1993. Two children were born of the marriage, who are
emancipated. The Judgment of Divorce incorporated a property settlement
agreement (PSA). Relevant to this appeal, paragraph nineteen of the PSA stated
plaintiff would pay defendant $3000 per month in permanent alimony. It also
stated the "alimony payments shall continue until the death of [defendant], death
of [plaintiff], re-marriage of [defendant,] or the [defendant]'s entry into a
relationship tantamount to marriage."
Five months after the judgment of divorce, plaintiff remarried and moved
to Cape May County. Defendant remained in Bergen County. The parties'
A-5572-17T2 2 daughter lives with her family in Massachusetts, and their son resides with his
family in Colorado.
Defendant began a dating relationship with K.C.1 in 1998, which
continues to present day. In 2009, plaintiff sought a reduction or termination of
alimony based upon his retirement, a financial change in circumstances
occasioned by his wife's illness and defendant's increased earnings, and
defendant's cohabitation with K.C.
Regarding the cohabitation, plaintiff alleged defendant and K.C. were
spending four-to-five nights per week at each other's residence. He alleged they
vacationed together and were involved in various aspects of each other's social
and family lives. In 2000, K.C. escorted defendant down the aisle at her
daughter's wedding and appeared in family photos from the wedding. He also
accompanied defendant to the birth of her first grandchild in 2003. In 2006, he
attended another grandchild's first birthday. In 2008, he attended Christmas
with defendant at her daughter's house. Plaintiff alleged the grandchildren
referred to K.C. as "grandpa [K]" and K.C. took on a grandfatherly role.
Defendant admitted the dating relationship with K.C., but denied he was
a live-in boyfriend. She certified "[t]he facts are . . . there is a man I date, and
1 We utilize K.C.'s initials to protect his privacy because he is not a party. A-5572-17T2 3 during most weekends we spend one night together either at my apartment or
his apartment." She admitted traveling with K.C. to visit each other's families,
but denied sharing expenses or financial resources with K.C.
The court denied plaintiff's request to terminate alimony, finding plaintiff
did not establish a prima facie case of cohabitation. However, the court reduced
plaintiff's alimony to $2250 per month based upon his retirement.
In 2018, plaintiff filed another motion to terminate his alimony and life
insurance obligations retroactive to 2014, based on defendant's cohabitation.
Defendant cross-moved to deny plaintiff's motion, enforce the life insurance
obligation, and sought counsel fees and costs.
Plaintiff's application alleged the same facts as the 2009 motion, with a
few updates. Plaintiff attached a two-page certification from each of the parties'
children, which repeated plaintiff's narrative that defendant and K.C. were in a
dating relationship. The certification from the parties' daughter claimed K.C.
drove defendant to Massachusetts to visit her family, and repeated that K.C.
participated in her wedding, was present for the birth of her child, and her
children referred to him as "[g]randpa."
The new facts alleged in the daughter's certification asserted K.C.
accompanied defendant on vacation to visit defendant's son in Colorado in 2013.
A-5572-17T2 4 The certification also alleged K.C. attended her aunt's eightieth birthday with
defendant in 2017. The certification further stated: "In the summer of 2017, I
came to New Jersey with my husband and my children to visit my family. My
children stayed at [K.C.'s] home, with my mother and [K.C.]. My husband and
I stayed at my mother's one-bedroom condominium only a few miles away."
The son's certification mostly mirrored the daughter's.
Plaintiff's certification alleged K.C. moved to within approximately three-
quarters of a mile from defendant's home in 2016. He alleged K.C. and
defendant had access to each other's residences, but offered nothing to prove his
claim. Plaintiff's certification attached a photograph posted by a grandchild
taken during a 2014 trip to Colorado to visit the parties' son, referring to K.C.
and defendant as his "grandparents." Plaintiff claimed the parties' fifteen-year-
old granddaughter effectively sees K.C. as defendant's husband.
Moreover, plaintiff alleged, "[d]efendant does not drive. [K.C.] is solely
responsible for transporting [defendant] anywhere she needs to go." He argued
"defendant is dependent upon [K.C.]," and "[b]y being solely responsible for her
transportation, he is effectively responsible for all of her . . . expenses"
associated with transportation. He alleged defendant and K.C. "share in the
costs for travel and meals during [their] trips."
A-5572-17T2 5 Defendant denied these assertions noting neither plaintiff nor their
children lived close enough to witness her driving habits. She certified she
"drive[s] all the time, but do[es] not like to drive on highways, and therefore,
usually use[s] car services." Additionally, she stated when she and K.C. are on
a trip together, involving highway driving, he drove. Defendant certified she
often travels alone and in those instances, travels by air or train.
Defendant certified she is not dependent on K.C. for transportation. She
noted her vehicle is titled, registered, and insured in her name. She drives it
roughly five-to-six days a week, including shopping in town, running errands,
traveling to the gym, and visiting dentists and doctors — all of whom are located
near her residence. Defendant offered certifications from two close friends who
witnessed her driving routine.
Defendant denied she and K.C. shared any living expenses. She certified
when they do go out for meals together, they "try to share the costs fairly." She
attached her apartment lease, renter's insurance policy, utility and cable bills,
rent payment checks, auto insurance declaration page, auto repair receipts, and
bank statements demonstrating she paid the expenses herself.
The motion judge denied the relief requested by plaintiff and defendant.
He found "[i]t is un-controverted [defendant] and [K.C.] maintain separate
A-5572-17T2 6 abodes. . . . It is un-controverted [they] do not comingle their finances. And
that one does not pay the debts of the other." The judge found no other objective
indicia defendant and K.C. enjoyed a relationship tantamount to a marriage.
Addressing plaintiff's evidence of cohabitation, the judge found the
children's certifications had little probative value other than confirming
defendant and K.C. sometimes visit the children together. The judge concluded
plaintiff "has not made a prima facie showing . . . [K.C.] actually supports
[defendant]. His only allegation in that regard is that [K.C.] drives [her]
everywhere, and argues therefore, . . . [K.C.] covers [her] transportation costs."
He concluded it "makes sense that she does not like to drive on the highways
. . . and [plaintiff] has not shown otherwise that she drives herself." The judge
noted the grandchildren referring to K.C. as "grandpa" was no more significant
than a child referring to a parent's good friend as "uncle." The judge concluded
it was "a term of affection rather than a term of a familial relationship."
Comparing the evidence presented with the evidence presented at
plaintiff's 2009 motion, the judge concluded:
The mere passage of time does not rise to the level of changed circumstances to warrant the modification of alimony. Given the foregoing, I do not find that [plaintiff] has made a prima facie showing that [defendant] . . . is in a [marital-]type relationship to
A-5572-17T2 7 warrant the termination of alimony, or to warrant further discovery in that regard.
The judge denied defendant's request for counsel fees, noting only that plaintiff's
application was not made in bad faith and therefore each party would be
responsible for their own counsel fees.
I.
"Appellate courts accord particular deference to the Family Part because
of its 'special jurisdiction and expertise' in family matters." Harte v. Hand, 433
N.J. Super. 457, 461 (App. Div. 2013) (quoting Cesare v. Cesare, 154 N.J. 394,
412 (1998)). "We do 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." Gnall v. Gnall, 222 N.J. 414, 428 (2015)
(internal quotations omitted) (alterations in original) (citing Cesare, 154 N.J. at
412). "We will reverse only if we find the trial judge clearly abused his or her
discretion[.]" Clark v. Clark, 429 N.J. Super. 61, 72 (App. Div. 2012). The
same standard of review applies to a trial court's determination of counsel fees.
Barr v. Barr, 418 N.J. Super. 18, 46-47 (App. Div. 2011). Conversely, "all legal
issues are reviewed de novo." Ricci v. Ricci, 448 N.J. Super. 546, 565 (App.
Div. 2017) (citing Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)).
A-5572-17T2 8 II.
Plaintiff argues he provided ample evidence defendant and K.C. were in a
relationship tantamount to marriage by socializing, attending family and
personal events together, and residing close to one another. He argues,
notwithstanding the PSA's terms, alimony should have been terminated due to
defendant's cohabitation, which constituted a change in circumstances. He
asserts the parties' conflicting certifications warranted discovery and a plenary
hearing.
"The duties of former spouses regarding alimony are always subject to
review or modification by our courts based upon a showing of changed
circumstances." Miller v. Miller, 160 N.J. 408, 419 (1999) (quoting Lepis v.
Lepis, 83 N.J. 139, 145 (1980)). However, "[a] prima facie showing of changed
circumstances must be made before a court will order discovery of an ex-
spouse's financial status." Lepis, 83 N.J. at 157. While a prima facie showing
of cohabitation can be difficult to establish because the readily available
evidence is often also consistent with a less serious dating relationship, it is still
a prerequisite to ordering discovery and a hearing. See Landau v. Landau, __
N.J. __, __ (App. Div. 2019) (slip op. at 17) (citing Konzelman v. Konzelman,
158 N.J. 185, 191-92 (1999).
A-5572-17T2 9 Whether the relationship between a dependent spouse and third party is
tantamount to marriage or cohabitation requires an analysis of the economic
benefits of the relationship. Garlinger v. Garlinger, 137 N.J. Super. 56, 65 (App.
Div. 1975); see also Reese v. Weis, 430 N.J. Super. 552, 571 (App. Div. 2013)
(holding modifications of alimony are warranted when the dependent spouse
economically benefits from cohabitation).
A modification based on a cohabitation is appropriate when: (1) the third
party contributes to the dependent spouse's support; or (2) the third party resides
in the dependent spouse's home without contributing anything toward the
household expenses. Gayet v. Gayet, 92 N.J. 149, 153 (1983) (discussing
Garlinger, 137 N.J. Super. at 61). "In short, this scheme permits modification
for changed circumstances resulting from cohabitation only if one cohabitant
supports or subsidizes the other under circumstances sufficient to entitle the
supporting spouse to relief." Id. at 153-54. "[T]he inquiry regarding whether
an economic benefit arises in the context of cohabitation must consider not only
the actual financial assistance resulting from the new relationship, but also
should weigh other enhancements to the dependent spouse's standard of li ving
that directly result[s] from cohabitation[.]" Reese, 430 N.J. Super. at 557-58.
A-5572-17T2 10 Furthermore, "[i]n addition to intimate or romantic involvement, indicia
of cohabitation may 'include, but are not limited to, living together, intertwined
finances such as joint bank accounts, sharing living expenses and household
chores, and recognition of the relationship in the couple's social and family
circle.'" Id. at 570 (citing Konzelman, 158 N.J. at 202).
"[W]here . . . the affidavits do not show the existence of a genuine issue
of material fact, the trial judge . . . may decide the motion without a plenary
hearing." Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976) (Cf.
Skillman v. Skillman, 136 N.J. Super. 348, 350 (App. Div. 1975). Conflicting
certifications giving rise to a genuine dispute of material facts can establish a
prima facie showing because "they must be examined with an appreciation that
if supported by competent evidence they would establish a prima facie cause of
action." Conforti v. Guliadis, 128 N.J. 318, 328 (1992). However,
"[c]onclusory allegations [should] . . . be disregarded. Only statements to which
a party could testify should be considered." Lepis, 83 N.J. at 159.
The evidence plaintiff presented in his second application to terminate
alimony on the basis of cohabitation virtually mirrored the evidence presented
in the 2009 application. The evidence failed to establish a prima facie showing
of either a physical cohabitation or a financial interrelationship demonstrating
A-5572-17T2 11 defendant no longer needed alimony. At best, the plaintiff's proofs showed K.C.
and defendant occasionally vacationed together, shared meals, and K.C. drove
defendant on long distance trips.
The certifications plaintiff provided from the parties' children contained
limited information that did not establish cohabitation, but instead provided
supposition regarding defendant's relationship with K.C. Indeed, beyond
observing K.C. drive defendant to Massachusetts or accompany her on a trip to
Colorado, the certifications contained the same information presented to the
court in 2009. And because each child resided far from defendant's residence ,
their assertions that defendant did not like to drive and K.C. was responsible for
the couple's driving were conjectural.
On the other hand, defendant's certification attached a variety of objective
proofs, including copies of her bills and finances, and certifications from her
close friends. This evidence readily rebutted the absence of objective evidence
proffered by plaintiff of an alleged economically interdependent relationship
and the claim defendant relied upon K.C. for transportation.
Therefore, the motion judge's finding that there was no prima facie
evidence of cohabitation or "a relationship tantamount to marriage," was
A-5572-17T2 12 supported by the substantial, credible evidence in the record. The decision to
deny plaintiff discovery and a plenary hearing was not an abuse of discretion.
III.
On the cross-appeal, defendant argues the motion judge should have
awarded her counsel fees. She argues he failed to consider the Rule 5:3-5(c)
factors.
Rule 5:3-5(c) states:
[T]he court in its discretion may make an allowance . . . on final determination, to be paid by any party to the action . . . on any claim for . . . alimony . . . [or] enforcement of agreements between spouses[.] . . . In determining the amount of the fee award, the court should consider . . . the following factors: (1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.
Pursuant to Rule 5:3-5(c), a judge must make factual findings, which
"adequately justify the denial of [an] application for counsel fees." Reese, 430
N.J. Super. at 586.
A-5572-17T2 13 The motion judge only addressed whether plaintiff made the application
in good faith. Rule 5:3-5(c) requires the motion judge to consider more than a
party's good faith. The record here lacks an assessment of the other eight factors
required by the rule. For these reasons, we reverse and remand the counsel fee
determination to the motion judge to make findings consistent with this opinion.
Affirmed in part, reversed and remanded in part. We do not retain
jurisdiction.
A-5572-17T2 14