NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5565-16T2
JOHN W. SALVATORE,
Plaintiff-Appellant,
v.
STACEY SALVATORE, (n/k/a STACEY ADUBATO),
Defendant-Respondent. __________________________________
Submitted June 5, 2018 – Decided June 28, 2018
Before Judges Fisher and Moynihan.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-0990-11.
Gomperts Penza McDermott & Von Ellen, LLC, attorneys for appellant (Marisa Lepore Hovanec, on the brief).
Dalena & Bosch, LLC, attorneys for respondent (Jessica A. Bosch, on the brief).
PER CURIAM
Plaintiff appeals the trial judge's order denying: his
request to terminate his alimony and life insurance obligations; his alternate request for discovery followed by a plenary hearing
to determine if defendant's cohabitation warranted termination of
his alimony obligation; and his request for oral argument. We
determine plaintiff established a prima facie case and reverse and
remand this matter for a plenary hearing following court-scheduled
discovery.
The parties' final judgment of divorce incorporated a
February 2011 marital settlement agreement (MSA) that provided in
pertinent part: plaintiff's $3333.33 monthly alimony obligation
would terminate upon defendant's remarriage, plaintiff's sixty-
sixth birthday, or either party's death; but defendant's
"cohabitation with an unrelated adult in a relationship tantamount
to marriage [would] be a re-evaluation event"; and plaintiff's
required life insurance, valued at $450,000, would be
"proportionately reduced commensurate with his alimony
obligation." Later that year – after defendant advised plaintiff
of her planned cohabitation with her boyfriend, A.M.1 – the parties
signed an addendum to the MSA. They agreed to the cohabitation;
recognized they were "without sufficient knowledge to determine
whether the cohabitation [would] be temporary or permanent";
reduced monthly alimony payments by $850 "during the period of
1 Obviously, we are using his initials.
2 A-5565-16T2 cohabitation"; and provided that, "[b]ecause the [p]arties cannot
determine the permanency of the cohabitation," alimony would be
reinstated "at the full amount in the [MSA] . . . for the remainder
of the term" if defendant's cohabitation with A.M. terminated.
Plaintiff filed the motion under review in May 2017,
contending defendant's continued cohabitation with A.M. since
December 2011 warranted the termination of his alimony and life
insurance obligations under the terms of the MSA. The trial judge,
after declining plaintiff's request for oral argument because it
would not "advance [his] understanding of the issues raised in the
motions," found that defendant's cohabitation
was admitted to at the time of the [a]ddendum, thus its continued existence in and of itself is not a change in circumstances. Plaintiff does not allege there have been any financial changes in circumstances since the [a]ddendum. Thus [plaintiff] has failed to provide a prima facie showing of changed circumstances.[2]
"Generally, the special jurisdiction and expertise of the
family court requires that we defer to factual determinations if
they are supported by adequate, substantial, and credible evidence
in the record." Milne v. Goldenberg, 428 N.J. Super. 184, 197
(App. Div. 2012). "However, when reviewing legal conclusions, our
2 The trial judge also granted defendant's cross-motion to deny plaintiff's motion and to enforce the addendum "as it relates to a reduction in alimony based on cohabitation."
3 A-5565-16T2 obligation is different; '[t]o the extent that the trial court's
decision constitutes a legal determination, we review it de novo.'"
Landers v. Landers, 444 N.J. Super. 315, 319 (App. Div. 2016)
(alteration in original) (quoting D'Agostino v. Maldonado, 216
N.J. 168, 182 (2013)). Because this appeal involves the
interpretation of contracts – the MSA and addendum – our review
is de novo, and the trial judge is entitled to no special
deference. Kieffer v. Best Buy, 205 N.J. 213, 222-23 (2011).
The judge misapprehended that the change of circumstances
involved only defendant's cohabitation, failing to consider the
terms of the MSA that provided cohabitation "in a relationship
tantamount to marriage" triggered the "re-evaluation event." He
also erred by considering plaintiff's failure to allege financial
changes in circumstance; financial changes were of no moment,
especially in light of the express provisions of the MSA.
Under pre-amendment case law,3 modification for changed
circumstances must be based on "[t]he extent of actual economic
3 We agree with the trial judge that "[t]he newly amended N.J.S.A. 2A:34-23(n) does not apply," an argument not raised on appeal. The amendment does not modify "prior agreements executed or final orders filed before [the] adoption of the statutory amendments." Spangenberg v. Kolakowski, 442 N.J. Super. 529, 538 (App. Div. 2015). Both agreements at issue were entered into prior to the adoption of that amendment and explicitly contemplated defendant's cohabitation. See Mills v. Mills, 447 N.J. Super. 78, 93 (Ch. Div. 2016) (recognizing "[t]he amended alimony statute of
4 A-5565-16T2 dependency, not one's conduct as a cohabitant." Gayet v. Gayet,
92 N.J. 149, 154 (1983). But, "a specific consensual agreement
between the parties to terminate or reduce alimony based on a
predetermined change of circumstances does not require an inquiry
into the financial circumstances or economic status of the
dependent spouse so long as the provision itself is fair."
Konzelman v. Konzelman, 158 N.J. 185, 197 (1999). "Thus, where
the parties have agreed that cohabitation will constitute a
material changed circumstance, and that agreement has been judged
fair and equitable, the court should defer to the arrangements
undertaken by the parties" and "need not delve into the economic
needs of the former spouse." Ibid. In considering alimony
modifications in these situations, our Supreme Court has directed
the trial courts to consider "[t]he ordinary understanding of
cohabitation," which is
based on those factors that make the relationship close and enduring and requires more than a common residence, although that is an important factor. Cohabitation involves an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage. These can include, but are not limited to, living together, intertwined finances such as joint bank accounts, sharing living expenses and
September 10, 2014, substantially departed from [then-existing case law] on cohabitation by permitting the possibility of termination or suspension of alimony even without proof of economic interdependency").
5 A-5565-16T2 household chores, and recognition of the relationship in the couple's social and family circle.
[Id. at 202.]
The addendum was entered with the parties' acknowledgment
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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-5565-16T2
JOHN W. SALVATORE,
Plaintiff-Appellant,
v.
STACEY SALVATORE, (n/k/a STACEY ADUBATO),
Defendant-Respondent. __________________________________
Submitted June 5, 2018 – Decided June 28, 2018
Before Judges Fisher and Moynihan.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-0990-11.
Gomperts Penza McDermott & Von Ellen, LLC, attorneys for appellant (Marisa Lepore Hovanec, on the brief).
Dalena & Bosch, LLC, attorneys for respondent (Jessica A. Bosch, on the brief).
PER CURIAM
Plaintiff appeals the trial judge's order denying: his
request to terminate his alimony and life insurance obligations; his alternate request for discovery followed by a plenary hearing
to determine if defendant's cohabitation warranted termination of
his alimony obligation; and his request for oral argument. We
determine plaintiff established a prima facie case and reverse and
remand this matter for a plenary hearing following court-scheduled
discovery.
The parties' final judgment of divorce incorporated a
February 2011 marital settlement agreement (MSA) that provided in
pertinent part: plaintiff's $3333.33 monthly alimony obligation
would terminate upon defendant's remarriage, plaintiff's sixty-
sixth birthday, or either party's death; but defendant's
"cohabitation with an unrelated adult in a relationship tantamount
to marriage [would] be a re-evaluation event"; and plaintiff's
required life insurance, valued at $450,000, would be
"proportionately reduced commensurate with his alimony
obligation." Later that year – after defendant advised plaintiff
of her planned cohabitation with her boyfriend, A.M.1 – the parties
signed an addendum to the MSA. They agreed to the cohabitation;
recognized they were "without sufficient knowledge to determine
whether the cohabitation [would] be temporary or permanent";
reduced monthly alimony payments by $850 "during the period of
1 Obviously, we are using his initials.
2 A-5565-16T2 cohabitation"; and provided that, "[b]ecause the [p]arties cannot
determine the permanency of the cohabitation," alimony would be
reinstated "at the full amount in the [MSA] . . . for the remainder
of the term" if defendant's cohabitation with A.M. terminated.
Plaintiff filed the motion under review in May 2017,
contending defendant's continued cohabitation with A.M. since
December 2011 warranted the termination of his alimony and life
insurance obligations under the terms of the MSA. The trial judge,
after declining plaintiff's request for oral argument because it
would not "advance [his] understanding of the issues raised in the
motions," found that defendant's cohabitation
was admitted to at the time of the [a]ddendum, thus its continued existence in and of itself is not a change in circumstances. Plaintiff does not allege there have been any financial changes in circumstances since the [a]ddendum. Thus [plaintiff] has failed to provide a prima facie showing of changed circumstances.[2]
"Generally, the special jurisdiction and expertise of the
family court requires that we defer to factual determinations if
they are supported by adequate, substantial, and credible evidence
in the record." Milne v. Goldenberg, 428 N.J. Super. 184, 197
(App. Div. 2012). "However, when reviewing legal conclusions, our
2 The trial judge also granted defendant's cross-motion to deny plaintiff's motion and to enforce the addendum "as it relates to a reduction in alimony based on cohabitation."
3 A-5565-16T2 obligation is different; '[t]o the extent that the trial court's
decision constitutes a legal determination, we review it de novo.'"
Landers v. Landers, 444 N.J. Super. 315, 319 (App. Div. 2016)
(alteration in original) (quoting D'Agostino v. Maldonado, 216
N.J. 168, 182 (2013)). Because this appeal involves the
interpretation of contracts – the MSA and addendum – our review
is de novo, and the trial judge is entitled to no special
deference. Kieffer v. Best Buy, 205 N.J. 213, 222-23 (2011).
The judge misapprehended that the change of circumstances
involved only defendant's cohabitation, failing to consider the
terms of the MSA that provided cohabitation "in a relationship
tantamount to marriage" triggered the "re-evaluation event." He
also erred by considering plaintiff's failure to allege financial
changes in circumstance; financial changes were of no moment,
especially in light of the express provisions of the MSA.
Under pre-amendment case law,3 modification for changed
circumstances must be based on "[t]he extent of actual economic
3 We agree with the trial judge that "[t]he newly amended N.J.S.A. 2A:34-23(n) does not apply," an argument not raised on appeal. The amendment does not modify "prior agreements executed or final orders filed before [the] adoption of the statutory amendments." Spangenberg v. Kolakowski, 442 N.J. Super. 529, 538 (App. Div. 2015). Both agreements at issue were entered into prior to the adoption of that amendment and explicitly contemplated defendant's cohabitation. See Mills v. Mills, 447 N.J. Super. 78, 93 (Ch. Div. 2016) (recognizing "[t]he amended alimony statute of
4 A-5565-16T2 dependency, not one's conduct as a cohabitant." Gayet v. Gayet,
92 N.J. 149, 154 (1983). But, "a specific consensual agreement
between the parties to terminate or reduce alimony based on a
predetermined change of circumstances does not require an inquiry
into the financial circumstances or economic status of the
dependent spouse so long as the provision itself is fair."
Konzelman v. Konzelman, 158 N.J. 185, 197 (1999). "Thus, where
the parties have agreed that cohabitation will constitute a
material changed circumstance, and that agreement has been judged
fair and equitable, the court should defer to the arrangements
undertaken by the parties" and "need not delve into the economic
needs of the former spouse." Ibid. In considering alimony
modifications in these situations, our Supreme Court has directed
the trial courts to consider "[t]he ordinary understanding of
cohabitation," which is
based on those factors that make the relationship close and enduring and requires more than a common residence, although that is an important factor. Cohabitation involves an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage. These can include, but are not limited to, living together, intertwined finances such as joint bank accounts, sharing living expenses and
September 10, 2014, substantially departed from [then-existing case law] on cohabitation by permitting the possibility of termination or suspension of alimony even without proof of economic interdependency").
5 A-5565-16T2 household chores, and recognition of the relationship in the couple's social and family circle.
[Id. at 202.]
The addendum was entered with the parties' acknowledgment
"that they [were] without sufficient knowledge to determine
whether [defendant's] cohabitation would be temporary or
permanent." Defendant's certification in opposition to
plaintiff's motion admits as much. By deeming the addendum "the
'evaluation' which the parties contemplated pursuant to" the MSA
and establishing that as the baseline from which changed
circumstances had to have been established, the trial judge ignored
the agreement – and the Konzelman Court's definition — that more
than a casual, perhaps temporary, cohabitation was needed to
precipitate a review of plaintiff's alimony obligations.4 Indeed,
a short-term cohabitation is the type of temporary circumstance
for which modification requests have been consistently rejected.
Lepis v. Lepis, 83 N.J. 139, 151 (1980).
Plaintiff's motion-supporting certification claimed that
during her cohabitation for more than five years: defendant and
A.M. "have represented themselves to be . . . step-parents to each
other's children"; the parties' children consider A.M. "part of
4 No provision of the addendum indicates an intention that it supersede the settlement agreement.
6 A-5565-16T2 their family unit"; "[d]efendant has shared parental
responsibilities for [A.M.'s] daughter"; A.M. and his daughter
were named in defendant's mothers' obituary; and A.M. has spent
holidays and vacations with defendant and the children. These
claims established a prima facie case that the cohabitation was
"tantamount to marriage," entitling plaintiff an opportunity to
establish at a plenary hearing that the cohabitation is of the
nature contemplated by the MSA and that a re-evaluation of his
alimony and concomitant life insurance obligations is warranted.
Contrary to defendant's contention, we determine that
plaintiff's requested termination – not modification — of alimony
sufficiently raised this matter at the trial level to warrant our
review. Plaintiff's request for maximum relief does not mean that
any other "re-evaluation" by the court was foreclosed. We
determine the balance of defendant's contentions to be without
sufficient merit to warrant discussion here. R. 2:11-3(e)(1)(E).
In light of our decision, we need not consider plaintiff's
alternative argument that a plenary hearing was required to resolve
the addendum's ambiguity. Our decision also renders moot the
trial judge's denial of oral argument.
We therefore reverse the trial court's decision and remand
this matter for a plenary hearing following discovery. We do not
retain jurisdiction.
7 A-5565-16T2 8 A-5565-16T2