NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4068-17T2
WENDY S. WOOD,
Plaintiff-Respondent,
v.
ALAN R. WOOD,
Defendant-Appellant. ___________________________
Argued March 18, 2019 – Decided May 16, 2019
Before Judges Gooden Brown and Rose.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1788-15.
Marybeth Hershkowitz argued the cause for appellant (Cores & Associates, LLC, attorneys; Amy Sara Cores and Marybeth Hershkowitz, on the briefs).
Risa M. Chalfin argued the cause for respondent (Wilentz, Goldman & Spitzer, PA, attorneys; Joseph J. Russell, Jr. and Risa M. Chalfin, of counsel and on the brief).
PER CURIAM In this post-judgment matrimonial matter, defendant (ex-husband) appeals
from a March 29, 2018 Family Part order, denying his motion to terminate his
alimony obligation to plaintiff (ex-wife) based on cohabitation, and awarding
plaintiff counsel fees. Defendant raises the following points for our
consideration:
POINT I: THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO FIND COHABITATION BETWEEN PLAINTIFF AND HER PARAMOUR AND FAILED TO GIVE PROPER WEIGHT TO THE FINANCIAL ENTANGLEMENTS OF . . . PLAINTIFF AND [HER PARAMOUR].
POINT II: TRIAL COURT IMPROPERLY SHIFTED THE BURDEN TO . . . DEFENDANT TO PROVIDE EVIDENCE OF PLAINTIFF'S FINANCIAL ENTANGLEMENT WITH HER LIVE[-]IN PARAMOUR.
POINT III: THE TRIAL COURT ERRED IN FAILING TO ORDER A PLENARY HEARING WITH RESPECT TO THE ISSUE OF COHABITATION.
POINT IV: THE TRIAL COURT MISAPPLIED ITS DISCRETION IN AWARDING PLAINTIFF COUNSEL FEES AND SHOULD BE REVERSED.
Having considered the arguments and applicable law, we affirm.
A-4068-17T2 2 The parties married in 1993 and divorced in 2016. Two daughters were
born of the marriage, A.W.,1 born in 1995, and T.W., born in 1996. Both
children were emancipated at the time of the divorce. Plaintiff also had a son,
C.H., born in 1989 from a prior relationship. Under the parties' property
settlement agreement (PSA), which was incorporated into their September 15,
2016 final judgment of divorce (FJOD), defendant agreed to pay plaintiff $525
per week in limited duration alimony for a period of ten years , effective
September 13, 2016, the date the PSA was executed. Under the PSA,
defendant's "obligation to pay alimony shall terminate" upon plaintiff's
"remarriage" or the "death" of either party or "[i]n accordance with [N.J.S.A.]
2A:34-25[.]" Further, alimony could be "modified or terminated in accordance
with N.J.S.A. 2A:34-25 and . . . existing case law."
In executing the PSA, the parties were both represented by counsel,
accepted the agreement as fair and reasonable, and acknowledged entering into
the PSA voluntarily. The parties also agreed that if either party "fail[ed] to abide
by the terms of th[e] [PSA], the defaulting party w[ould] indemnify the other for
all reasonable expenses and costs, including counsel fees, incurred by the other
in successfully enforcing th[e] [PSA]."
1 We refer to the parties' children by their initials to protect their privacy. A-4068-17T2 3 On December 6, 2017, defendant moved to terminate or suspend his
alimony obligation based on plaintiff's purported cohabitation. In the
alternative, defendant sought a finding that he had established a prima facie case
of changed circumstances, entitling him to a plenary hearing with appropriate
discovery. Defendant also requested counsel fees. To support the motion,
defendant provided an updated case information statement (CIS), and certified
that "[i]n the Fall of 2016," he learned "that [p]laintiff was living with [her]
boyfriend, K.C." As a result, defendant "hired [a] private investigator . . . to
confirm and document the cohabitation."
In the November 17, 2017 cohabitation report attached to defendant's
certification, the investigator indicated that based on a computer search of
current public records, K.C.'s name was associated with both the marital
residence, which was foreclosed upon and sold in the Spring of 2016, and
plaintiff's current residence, a condominium unit located in Howell (the
condominium). According to the investigator, K.C., then fifty-three years old,
changed his address on his driver's abstract and voter registration profile to
reflect the condominium address on January 26, 2017, and November 2, 2016 ,
respectively.
A-4068-17T2 4 The investigator conducted two rounds of surveillance of the
condominium on non-consecutive days from March 8 to April 6, 2017, and from
August 23 to November 17, 2017, the results of which were detailed in the
report. During the first round of surveillance, on the morning of April 6, 2017,
the investigator observed a 5' 10," 165 pound adult Caucasian male, "presumed
to be . . . K.C.[,]" inside the condominium. During the second round of
surveillance, K.C. was observed at the condominium "in the early morning and
afternoon hours on [fourteen] out of [fourteen]" occasions.
The investigator summarized the results of the second round of
surveillance as follows:
The surveillance revealed that . . . K.C. typically leaves [the condominium] at 5:00 [a.m.] and walks to a nearby bus stop. He has been observed boarding bus number 139 with a banner that reads "New York via Freehold Mall[.]" One morning, when it was raining heavily, [plaintiff] and . . . K.C. left [the condominium] together at approximately 5:25 [a.m.]
Our office has also observed . . . K.C. come off the bus typically at 3:15 [p.m.] On several occasions, [plaintiff] would pick up . . . K.C. at the bus stop and on one[] occasion, he was greeted with a kiss from [plaintiff]. On other days, . . . K.C. was observed walking from the bus stop to [the condominium]. On all occasions, . . . K.C. was observed using his own set of keys to enter [the condominium]. . . . K.C. was also observed accessing the locked mailbox with a key without being in the presence of [plaintiff].
A-4068-17T2 5 Despite reportedly observing plaintiff and K.C. kiss on two separate
occasions, the investigator was unable to obtain surveillance footage due to the
brevity of the interaction. The two were also observed driving to Robert Wood
Johnson University Hospital in New Brunswick on one occasion. Based on the
investigation, the investigator concluded that plaintiff was "permanently
cohabiting" and "engaging in a romantic relationship" with K.C.
Plaintiff opposed defendant's motion and cross-moved for an order
holding defendant in violation of litigant's rights for failing to comply with
various provisions of the PSA, including missing alimony payments . Plaintiff
also sought counsel fees in accordance with the indemnification provision of the
PSA. In a supporting certification, plaintiff denied "cohabitating." She certified
that K.C. was "a roommate" who lived with her because she could not "afford
to live by [her]self on the alimony," she was "unable to work" due to "[her]
multiple disabilities[,]" which "include[d] brain cancer, multiple sclerosis,
transverse myelitis, and a seizure disorder[,]" and she had not yet received any
disability benefits.
According to plaintiff, when the marital residence "was foreclosed upon"
and she "started looking for a comfortable, safe, one-bedroom residence" with
"wheelchair accessib[ility]," she "learned that [she] did not have sufficient
A-4068-17T2 6 income or income history to qualify for a rental[.]" K.C., an "acquaintance[,]
. . . was also looking for a place to live" and "asked . . . if [she] wanted to be
roommates." She agreed and they "rented a two-bedroom condominium
together and signed separate leases on October 7, 2016[,]" for which she paid
$800 per month as her "portion of the rent."
According to plaintiff, K.C. "[paid] his share of the rent and utilities" and
"occasionally help[ed] [her] carry packages to/from [her] car." She also
acknowledged that she "occasionally pick[ed] [him] up . . . at the bus stop that
[was] about [a] five minute walk from [the condominium] because he does not
have a car . . . and it [was] convenient for [her]." However, she denied any
financial entanglements or that they were "in a romantic relationship" or "a
mutually supportive, marriage-like relationship." On the contrary, she asserted
that their "finances [were] not combined[,]" and that she paid for her own
"groceries," "medical expenses," "transportation expenses and daily living
expenses." In addition, she and K.C. "each ha[d] . . . separate rooms," and
"separate bathrooms" in the condominium.
To underscore the nature of her relationship with K.C., plaintiff pointed
out that "before and after" her July 27, 2017 brain surgery, it was her "family
and friends," including her children and her elderly parents, who stayed with her
A-4068-17T2 7 and cared for her, rather than K.C. Plaintiff also stated that she and K.C. "do
not socialize together" and "friends and family do not consider [them] a
couple[,]" as evidenced by the fact that there were no "photographs of [them]
together or mention of . . . K.C. in any [Facebook] posting" or "other social
media."
In fact, plaintiff believed that the only time the two "spent time together
outside of [the condominium] was this past Thanksgiving" when her daughter
A.W. invited him to dinner at her home once she discovered "he had [no] plans
for the holiday." Plaintiff provided certifications from K.C. and her son C.H.,
corroborating her account that she and K.C. were not romantically involved.
She also supplied a lease agreement for the condominium, signed by K.C. and
plaintiff, and a letter from her doctor confirming her medical conditions.
In a reply certification, defendant countered that aside from the
investigator observing the two "kissing and embracing[,]" and "K.C.
accompanying plaintiff to Robert Wood Johnson Hospital[,]" both of which
were indicia of a mutually supportive relationship, "[their] children have relayed
to [him] that . . . K.C. [was] indeed plaintiff's longtime boyfriend." Further,
during "[his] final walk through of the [marital residence]," where his
investigator believed K.C. had previously lived while the divorce was finalized,
A-4068-17T2 8 defendant had observed "male clothing . . . intermingled with plaintiff's in the
master bedroom[,]" that did not belong to him. In addition, defendant pointed
out that contrary to plaintiff's assertion that she and K.C. had "separate leases,"
the lease supplied by plaintiff showed that they were, in fact, "co-lessees."
In a supplemental certification, plaintiff responded that when the marital
residence was being foreclosed upon due to defendant's failure to pay the
mortgage, she offered K.C. a spare bedroom in the home for $300 per month in
rent in order to obtain funds to pay the utilities. However, she denied that any
male clothing was in her bedroom when defendant conducted his walk through.
In support, plaintiff submitted her daughter A.W.'s certification, because A.W.,
as well as C.H., were also living in the marital residence at the time. A.W.
confirmed that plaintiff was "not romantically involved" with K.C., that she
never told defendant that K.C. was "romantically involved" with plaintiff, and
that when K.C. rented a room in the marital residence, he never slept nor kept
clothing in her mother's bedroom. A.W. also confirmed that she invited K.C. to
Thanksgiving dinner after "learn[ing] that he did not have any plans" for the
holiday.
In her supplemental certification, plaintiff also explained that while K.C.
had driven her to her hospital appointment one time "approximately one month
A-4068-17T2 9 following [her] brain surgery[,]" it was "a simple favor[,]" and not indicative of
"a 'mutually supportive' relationship." Moreover, she denied ever "romantically
kiss[ing] or embrac[ing]" K.C. Further, because K.C. weighed between 265 and
300 pounds, plaintiff asserted that the investigator may have mistaken observing
her son C.H., who was, in fact, 5'10" and 165 pounds, for K.C. in the
condominium on April 6, 2017, and the "inaccuracy cast[ed] doubt as to whether
the . . . investigator was confused about [her] son and . . . K.C. at other times."
Following oral argument, on March 29, 2018, Judge Andrea Marshall
denied defendant's motion and awarded plaintiff counsel fees, among other
relief. In her statement of reasons, relying on Lepis v. Lepis, 83 N.J. 139 (1980),
Crews v. Crews, 164 N.J. 11 (2000), and N.J.S.A. 2A:34-23(n), the judge
acknowledged that a "dependent spouse's cohabitation with another" constituted
"changed circumstances" warranting modification or termination of alimony
"[e]ven if a PSA does not expressly provide for the cessation of alimony
payments upon cohabitation[.]" 2 Further, "[o]nce a prima facie showing of
changed circumstances [was] made, the court may order further discovery" and,
2 In her supplemental certification, plaintiff had asserted that even if she was cohabitating, defendant's request was not supported by their PSA which "clearly state[d] the conditions upon which [d]efendant [could] request termination of alimony" and "[c]ohabitation [was] not one of the conditions." A-4068-17T2 10 "[u]pon the completion of discovery . . . , in its discretion, . . . hold a plenary
hearing." However, the judge noted that "[t]he moving party [bore] the burden
of showing changed circumstances that warrant[ed] modification or
termination" and "[a]bsent a prima facie showing of changed circumstances,
courts should not order discovery of a spouse's financial status" or conduct "a
plenary hearing" unless "material facts are 'in genuine dispute.'"
Additionally, the judge explained that "[c]ohabitation involve[d] a
mutually supportive, intimate personal relationship in which a couple has
undertaken duties and privileges that are commonly associated with marriage or
civil union." Relying on Konzelman v. Konzelman, 158 N.J. 185, 202 (1999),
the judge acknowledged that "a finding of cohabitation" was "based on those
factors that ma[d]e the relationship close and enduring and require[d] more than
a common residence, although that [was] an important factor." Rather, the
factors to be considered included, but were 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." See ibid.; see also N.J.S.A. 2A:34-23(n). Further, while
consideration of "the length of the relationship" was necessary, the judge noted
A-4068-17T2 11 that "[t]he definition of cohabitation [was] flexible and specific to the particular
circumstances involved."
Before applying these well-settled legal principles to the facts of the case,
the judge summarized the parties' submissions as follows:
Defendant asserts that . . . [p]laintiff is romantically involved with . . . K.C. and they maintain a household together. Defendant also states that . . . K.C. lived at the former marital home for a period of time . . . . Plaintiff concedes that she is living with . . . K.C. but only as roommates because she cannot afford her own rental. Plaintiff asserts that she and . . . K.C. signed separate leases. However, the lease included in her application . . . shows a single lease with both [p]laintiff and . . . K.C.'s signatures. As such, there is some indicia of joint responsibility for living expenses, at least rent.
The judge then determined:
Defendant has provided no indication of . . . [p]laintiff's financials that would support his assertion that there has been cohabitation. Further, [d]efendant references Facebook posts and pictures that show [p]laintiff and . . . K.C. behaving as a couple, but does not provide any evidence of same in [his] application. [Also,] [d]efendant points to two specific instances of kissing and embracing in the investigative report to support his allegation that [p]laintiff is in an intimate personal relationship with . . . K.C. However, the instances . . . were characterized as too brief for the investigator to take a photograph of same. In sum, [d]efendant has failed to support his claim on a prima facie basis that [p]laintiff is cohabitating with . . . K.C. in accordance with Lepis or N.J.S.A. [2A:34-25]. Therefore, [d]efendant's requests to terminate or suspend his
A-4068-17T2 12 alimony obligation are denied. Further, [d]efendant's request to conduct a plenary hearing, [and] conduct discovery . . . [is] denied without prejudice.
Turning to plaintiff's cross-motion, the judge granted plaintiff's request to
hold defendant in violation of litigant's rights for failing to comply with two
provisions of the PSA. Specifically, the judge found that defendant missed two
weeks of alimony payments, and failed to turn over to plaintiff the entirety of
his retirement account or pay his proportionate share for the preparation of the
necessary qualified domestic relations order as required under the PSA, none of
which defendant disputed.
Finally, the judge addressed both parties' requests for counsel fees and
acknowledged that both parties had provided certifications of services from their
respective counsel as required by Rule 4:42-9(b). However, relying on Mani v.
Mani, 183 N.J. 70, 94 (2005), and applying the factors enumerated in Rule 5:3-
5(c), the judge denied defendant's request, and ordered him to pay plaintiff
partial counsel fees in the amount of $500.
The judge explained:
It appears that . . . [d]efendant . . . earns a higher income than . . . [p]laintiff. Plaintiff asserts that she has a limited income due to her health. Plaintiff appears to be acting in good faith to enforce the terms of the parties' PSA. Defendant's good faith is somewhat questionable. While his requests concerning
A-4068-17T2 13 cohabitation seem to be brought in good faith, he appears to be neglecting some of his obligations under the terms of the PSA.
The judge also referred to "the indemnification provision" in the PSA and, given
plaintiff's success in enforcing the PSA's provisions, concluded that the Rule
5:3-5(c) factors, as well as the indemnification provision "support[ed] an award"
of counsel fees to plaintiff. The judge entered a memorializing order and this
appeal followed.
On appeal, defendant argues the judge erred in finding that he failed to
"establish[] a prima facie case of cohabitation" in order to shift "the burden . . .
to plaintiff to show her continued need for alimony." According to defendant,
because it was undisputed that plaintiff was living with someone, "at the very
least," he was "entitled" to "the discovery that accompanies a plenary hearing[,]"
without which he had no "ability to obtain the financial information that plaintiff
[was] under no obligation to provide." Defendant continues that the judge
"should have granted [his] request for a plenary hearing based on the fact that
the certifications created material issues of disputed facts relevant to the issue
of cohabitation." Additionally, defendant contends that "[i]n granting . . .
plaintiff counsel fees, the [judge] erroneously made findings of fact that were
either not supported by the record or directly contrary to the record."
A-4068-17T2 14 After carefully reviewing the record, we reject defendant's contentions
and affirm substantially for the reasons expressed by Judge Marshall in her
comprehensive and well-reasoned statement of reasons. Judge Marshall's
factual findings are "supported by adequate, substantial, credible evidence" in
the record, considering our "limited" scope of review, and the deference we
accord "to family court [fact-finding]." Cesare v. Cesare, 154 N.J. 394, 411-13
(1998). We are also satisfied that Judge Marshall's legal conclusions, which are
subject to our plenary review, see Crespo v. Crespo, 395 N.J. Super. 190, 194
(App. Div. 2007), are sound. Further, we discern no abuse of discretion in the
judge's award of counsel fees. See Strahan v. Strahan, 402 N.J. Super. 298, 317
(App. Div. 2008) ("We will disturb a trial court's determination on counsel fees
only on the 'rarest occasion[s],' and then only because of [a] clear abuse of
discretion." (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995))). We add
only the following comments.
Trial courts are afforded wide discretion when deciding motions to modify
alimony obligations. Reese v. Weis, 430 N.J. Super. 552, 572 (App. Div. 2013).
Such discretion, however, "is not unguided or uncontrolled." Id. at 572 (quoting
Cosme v. Borough of E. Newark Twp. Comm., 304 N.J. Super. 191, 202 (App.
Div. 1997)). Given the wide, but not unlimited discretion of trial courts in such
A-4068-17T2 15 matters, our review is limited "to whether the court made findings inconsistent
with the evidence or unsupported by the record, or erred as a matter of law."
Ibid.
Procedurally, an alimony payor who alleges cohabitation must first
present a prima facie case that his or her former spouse is in such a cohabiting
relationship tantamount to marriage. See Gayet v. Gayet, 92 N.J. 149, 154-55
(1983). If such a prima facie showing is made, the disputing ex-spouses may
then engage in mutual discovery. See ibid. The payor's prima facie showing of
cohabitation creates a rebuttable presumption of changed circumstances, which
the dependent ex-spouse may then attempt to rebut "with proof that the need for
[spousal] support remains the same." Ozolins v. Ozolins, 308 N.J. Super. 243,
248-49 (App. Div. 1998); see also Reese, 430 N.J. Super. at 570-71 (reaffirming
this court's holding in Ozolins).
Here, the record amassed by defendant was reasonably deemed
insufficient by the judge to rise to the level of a prima facie case that would
justify the additional discovery sought by defendant. While our Supreme Court
has characterized "a common residence" as "an important factor" in establishing
cohabitation, it has not determined that a common residence alone establishes a
A-4068-17T2 16 prima facie case, and we reject defendant's invitation to do so here. Konzelman,
158 N.J. at 202.
That being so, the judge did not misapply her authority in declining
defendant's request for discovery or a plenary hearing, particularly since
defendant's request in that regard was denied without prejudice. See Shaw v.
Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976) ("It is only where the affidavits
show that there is a genuine issue as to a material fact, and that the trial judge
determines that a plenary hearing would be helpful in deciding such factual
issues, that a plenary hearing is required."). Thus, defendant is not foreclosed
from any future attempt to establish a prima facie case of cohabitation with
supplemental proofs showing that plaintiff's and K.C.'s lives and finances are
actually more intertwined than the present record suggests.
To the extent any argument raised by defendant has not been explicitly
addressed in this opinion, it is because the argument lacks sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-4068-17T2 17