JUSTIN MANLEY v. SUZANNE MANLEY (FM-12-0999-17, MIDDLESEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: January 14, 2022
• Docket: A-0408-20
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0408-20

JUSTIN MANLEY,

Plaintiff-Appellant,

v.

SUZANNE MANLEY,

Defendant-Respondent. ___________________________

Submitted January 5, 2022 – Decided January 14, 2022

Before Judges Rothstadt and Mayer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, No. FM-12-0999-17.

Arndt & Sutak, LLC, attorneys for appellant (Lauren A. Miceli, on the briefs).

Rozin Golinder Law, LLC, attorneys for respondent (Alyssa A. Bartholomew, on the brief).

PER CURIAM In this post-judgment matrimonial matter, plaintiff Justin Manley appeals

from a September 18, 2020 order granting a reconsideration motion filed by

defendant Suzanne Manley. The judge reconsidered an April 3, 2020 order

granting plaintiff's motion for discovery to determine whether plaintiff was

entitled to modify or terminate alimony based on defendant's claimed

cohabitation. On reconsideration, the judge concluded plaintiff failed to

establish a prima facie showing of cohabitation and vacated the April 3, 2020

order allowing discovery. We affirm.

Plaintiff and defendant divorced in 2016. As part of their final judgment

of divorce, the parties executed a Marital Settlement Agreement (MSA),

obligating plaintiff's payment of alimony to defendant. The MSA provided

plaintiff's alimony obligation

shall irrevocably terminate upon . . . [defendant]'s cohabitation with someone in the manner of Husband and Wife for a three (3) month period, regardless of the amount of financial contribution by the other party. [Defendant] has an express duty to inform [plaintiff] when she is cohabitating; if she fails to do so, all alimony paid during the period of cohabitation shall be refunded retroactively . . . .

Because plaintiff believed defendant was cohabitating, he hired a private

investigator. In 2020, based on the investigator's findings, plaintiff filed a

A-0408-20 2 motion to terminate alimony, alleging defendant was cohabitating with Sam.1

Plaintiff included a written report and photographs from the investigator in

support of his motion.2 The report stated, "evidence was obtained . . .

support[ing] the allegations that [Sam] and [defendant] are involved in an

intimate, mutually beneficial, family relationship."

Defendant opposed plaintiff's motion. In her certification, she admitted

dating Sam but denied the two were cohabitating. According to defendant, she

did "not live under the same roof" as Sam and they "maintained completely

different households." She further certified they did not "intertwine[] [their]

finances." While defendant acknowledged Sam moved to the same town where

she maintains her home, defendant claimed he did so for reasons related to his

own family situation.

In an April 3, 2020 order, the motion judge granted plaintiff's motion in

part. The judge declined to alter plaintiff's alimony obligation but ordered the

parties to exchange discovery. The order provided, "[u]pon completion of such

discovery period, [p]laintiff may submit appropriate papers and proofs

1 We refer to the claimed cohabitant by a pseudonym to protect his privacy. 2 No certification or affidavit from the investigator accompanied the report. A-0408-20 3 addressing whether a change in circumstances has occurred to warrant a

modification and/or termination of [p]laintiff's alimony obligation."

Defendant moved for reconsideration, seeking to preclude discovery

because plaintiff failed to establish a prima facie case of cohabitation. Plaintiff

submitted opposition.

In seeking to establish defendant and Sam were cohabitating, plaintiff

provided evidence of defendant's use of Sam's wholesale club card and country

club membership card. Plaintiff also submitted photographs of defendant

bringing groceries to Sam's home. Additionally, plaintiff provided Facebook

postings showing defendant and their children travelling with Sam and his

daughter, as well as photographs of Sam attending sporting events for plaintiff's

children. Plaintiff also certified that defendant brought Sam to family reunions

and other family events.

Defendant admitted to using Sam's wholesale club card but explained she

reimbursed Sam for the expenses attributable to her use of the card. She also

responded to her use of Sam's country club privileges, indicating she attended

club activities solely as Sam's guest. While defendant and Sam assisted each

other in carrying groceries, defendant certified each paid for their own groceries.

Regarding attendance at the children's sporting events, defendant explained Sam

A-0408-20 4 attended ten hockey games over three years. Concerning traveling with Sam,

defendant claimed they travelled "like a couple in a dating relationship" with

each person paying his and her own travel expenses.

Defendant's family and friends recognize her relationship with Sam as a

dating relationship and the pair's social media presence depicted a typical adult

dating relationship. Defendant acknowledged being in a romantic relationship

with Sam since 2016. According to defendant, while Sam spent some nights at

her house, he never stayed overnight during defendant's parenting time with her

children. Defendant further explained she and Sam do not have keys to the

other's home

After reviewing the parties' submissions, the judge found plaintiff

established only two out of the seven factors under the cohabitation statute,

N.J.S.A. 2A:34-23(n). The judge concluded there was no evidence "of

intertwined finances, joint living expenses, sharing of household chores, or an

enforceable promise of support." However, the judge found plaintiff presented

"a showing of recognition of the relationship [between defendant and Sam] as

well as frequent contact." Although the investigator's report lacked the required

attestation, the judge considered the information and photographs containe d in

that report in deciding the motions.

A-0408-20 5 In a September 18, 2020 order, the judge granted defendant's

reconsideration motion. He concluded plaintiff failed to establish a prima facie

case of cohabitation. Thus, the judge determined plaintiff was not entitled to

discovery and vacated his April 23, 2020 order.

On appeal, plaintiff argues the judge erred in finding he failed to present

evidence establishing a prima facie case of cohabitation and disallowing

discovery to address his request to terminate alimony under the MSA. We

disagree.

Our review of a trial court's decision to modify or terminate alimony is

limited. "[E]very 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 v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (quoting

Martindell v. Martindell, 21 N.J. 341, 355 (1956)).

Our examination of a trial judge's decision on a motion to terminate

"alimony is limited to whether the court made findings inconsistent with the

evidence or unsupported by the record, or erred as a matter of law." Reese v.

Weis, 430 N.J. Super. 552, 572 (App. Div. 2013). A motion to terminate

alimony is based on facts specific to each case, and we "must give due

A-0408-20 6 recognition to the wide discretion which our law rightly affords to the trial

judges who deal with these matters." Larbig, 384 N.J. Super. at

21 (quoting Martindell, 21 N.J. at 355).

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

circumstances may require." N.J.S.A. 2A:34-23. A motion addressed to

termination or suspension of alimony requires a showing of "changed

circumstances." Lepis v. Lepis, 83 N.J. 139, 146 (1980). A prima facie showing

of cohabitation constitutes sufficient changed circumstances under Lepis. See

Gayet v. Gayet, 92 N.J. 149, 154-55 (1983). "[A]limony may be terminated or

modified pursuant to a consensual agreement . . . ." Temple v. Temple, 468 N.J.

Super. 364, 368 (App. Div. 2021) (citing Konzelman v. Konzelman, 158 N.J.

185, 193-94 (1999)).

Cohabitation has been defined as "an intimate relationship in which the

couple has undertaken duties and privileges that are commonly associated with

marriage." Konzelman, 158 N.J. at 202. "A mere romantic, casual or social

relationship is not sufficient to justify the enforcement of a settlement agreement

provision terminating alimony. Such an agreement must be predicated on a

relationship of cohabitation that can be shown to have stability, permanency and

mutual interdependence." Ibid. Cohabitation "is based on those factors that

A-0408-20 7 make the relationship close and enduring and requires more than a common

residence." Ibid.

In 2014, the Legislature amended the cohabitation statute to provide:

[a]limony 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 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; and

(7) All other relevant evidence.

A-0408-20 8 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.

[N.J.S.A. 2A:34-23(n).] Recently, this court held a party seeking to terminate alimony based on

cohabitation need not "check off all six boxes [under N.J.S.A. 2A:34-23(n)] to

meet the burden of presenting a prima facie case, [otherwise] a finding of

cohabitation [would] be as rare as a unicorn." Temple, 468 N.J. Super. at 370.

In Temple, the plaintiff, as the supporting spouse, submitted ample evidence of

cohabitation to warrant an order allowing discovery and scheduling a plenary

hearing. The plaintiff in that case presented the following evidence of

cohabitation: the defendant and the claimed cohabitant lived together and had a

fourteen-year relationship; the claimed cohabitant referred to the defendant as

his wife on social media posts over a period of many years as well as in a

Mother's Day church publication which listed the defendant under the claimed

cohabitant's last name; the defendant and the claimed cohabitant traveled and

participated in events extensively from 2012 through 2019; over the fourteen

year relationship, the two were together for holidays and family functions; the

defendant resided in the claimed cohabitant's home at the shore and the claimed

A-0408-20 9 cohabitant resided at the defendant's apartment in New York City; photographs

of the defendant engaging in household responsibilities and using a key and

access code to enter and exit the claimed cohabitant's home; and the defendant

and the claimed cohabitant sanitized their social media accounts to delete

evidence of their cohabitation after the plaintiff's attorney requested

preservation of records upon the filing of a motion to terminate alimony based

on cohabitation. Id. at 371-375. When presented with such a wealth of

evidence, we held the plaintiff presented a prima facie case of cohabitation "to

entitle him to discovery and an evidentiary hearing." Id. at 375.

However, the evidence in the matter on appeal is very different from the

evidence presented in Temple. Here, plaintiff failed to present "an abundance

of evidence" that defendant and Sam were cohabitating. Id. at 371. The judge

determined plaintiff presented some evidence, but certainly less than strong

evidence, in support of two of the seven statutory factors governing

cohabitation.

At best, the judge concluded the evidence marshalled by plaintiff

demonstrated an adult dating relationship over the course of three years. Unlike

the social media posts in Temple, plaintiff submitted posts showing defendant

and Sam attended two family functions and holidays, took two trips over a three-

A-0408-20 10 year period, and attended a child's sporting event in two photos. Nor did plaintiff

present evidence defendant and Sam spent considerable time in each other's

home or had keys as was proffered to the trial court in Temple. Moreover, unlike

the defendant and the claimed cohabitant in Temple, defendant and Sam

maintained separate homes and households and plaintiff proffered no evidence

to the contrary.

The motion judge considered the certifications submitted by plaintiff and

defendant but did not resolve any factual disputes contained in the competing

certifications. Rather, the judge considered the proffered evidence and

concluded it was insufficient under N.J.S.A. 2A:34-24(n) to establish a prima

facie case of cohabitation. The judge determined plaintiff simply presented

evidence of a dating relationship that was not akin to the marital-type

relationship presented to the trial court in Temple. Having reviewed the record,

we are satisfied the judge did not abuse his discretion when he determined

plaintiff failed to demonstrate a prima facie case in support of cohabitation to

warrant discovery.

We next consider plaintiff's argument the MSA eliminated the judge's

need to examine financial contributions between defendant and Sam. "An

agreement that resolves a matrimonial dispute is no less a contract than an

A-0408-20 11 agreement to resolve a business dispute." Quinn v. Quinn, 225 N.J. 34 45

(2016). "It is not the function of the court to rewrite or revise an agreement

when the intent of the parties is clear." Ibid. "[W]hen the intent of the parties

is plain and the language is clear and unambiguous, a court must enforce the

agreement as written, unless doing so would lead to an absurd result." Ibid.

Here, we need not address waiver of financial contribution as a factor in

the cohabitation analysis based on the limited evidence proffered by plaintiff.

The lack of evidence supporting the other statutory factors weighed against a

finding of cohabitation. The judge properly considered the cohabitation factors

and determined plaintiff's evidence was insufficient to warrant discovery even

if there had been evidence of financial contribution between defendant and Sam.

Based on the paucity of evidence to establish cohabitation under N.J.S.A.

2A:34-24(n), we discern no basis to disturb the judge's September 18, 2020 order

vacating his April 23, 2020 order compelling discovery on the issue of

Affirmed.

A-0408-20 12