Preview:

a4757-10.opn.html

Original Wordprocessor Version
(NOTE: The status of this decision is Unpublished.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4757-10T3

ERIC GOULD,

Plaintiff-Appellant,

v.

ROBIN GOULD,

Defendant-Respondent.

__________________________________________ September 6, 2012 Argued March 6, 2012 - Decided

Before Judges Hayden and Accurso.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-729-09.

Madeline Marzano-Lesnevich, argued the cause for appellant (Lesnevich & Marzano-Lesnevich, L.L.C, attorneys; Francesca Madeline O'Cathain and Jeffrey
file:///C|/Users/Peter/Desktop/Opinions/a4757-10.opn.html[4/20/2013 5:22:50 PM]

a4757-10.opn.html

B. Hodge on the brief).

Janet L. Pennisi argued the cause for respondent.

PER CURIAM

In this post-judgment matrimonial matter plaintiff Eric Gould appeals from the March 7, 2011 Family Part order denying his motion to terminate or modify alimony based upon his claim that defendant Robin Gould was cohabitating with a third party. For the reasons that follow, we affirm. The parties were married in 1995 and divorced in 2009 by dual judgment of divorce, which incorporated their Property Settlement Agreement (PSA). They have three minor children. The PSA requires plaintiff to pay defendant limited duration alimony in gradually decreasing amounts until 2019. Paragraph 4.1 of the Agreement provides, "In the event of Wife's cohabitation, the Husband may, at his option, make all appropriate applications to the Court to have alimony terminated in accordance with the then existing law of this State." On January 25, 2011, plaintiff filed a motion requesting termination or modification of his alimony obligation based upon defendant's cohabitation with her boyfriend, M.J., or in the alternative, permitting discovery with respect to cohabitation. Plaintiff acknowledged that he was aware defendant was involved with M.J. since 2008, prior to the divorce. He alleged that M.J. had a "sham residence" but spent most of his time at defendant's house. M.J. kept a closet full of clothes there, assisted with the children and household chores, and went on vacation with the children. Plaintiff, by looking into defendant's mailbox, found a piece of mail addressed to M.J. at defendant's address. In addition, plaintiff hired a private investigator to conduct surveillance of M.J. The surveillance consisted of six observations of defendant's home. According to the investigator, M.J. was at defendant's residence at least part of every night and stayed for the entire night on three nights when the children were with plaintiff. Defendant acknowledged a romantic relationship with M.J. but denied cohabitating with him. She admitted
1

file:///C|/Users/Peter/Desktop/Opinions/a4757-10.opn.html[4/20/2013 5:22:50 PM]

a4757-10.opn.html

that he kept some clothes at her house, mainly exercise clothes so he could use her exercise equipment. M.J. also had vacationed with defendant and the children, and occasionally he took the trash out and helped with the children. Nevertheless, defendant maintained that he does not live in her home, they do not have a marital-type relationship, he paid none of the household bills, and their finances were separate. Defendant claimed that plaintiff only brought this motion to harass her. The trial court denied the motion pertaining to cohabitation, reasoning as follows:
Here, the court has before it, proof that Defendant's boyfriend stayed overnight at Defendant's residence three nights (when the children were at Plaintiff's home) and that the boyfriend left before the next morning on the other three nights when the parties' children were with her. There is no question but that the investigator did not follow the boyfriend once he left Defendant's residence. There is also no proof, as Plaintiff suggests, that the boyfriend maintains a "sham residence." The court cannot find on the basis of the investigator's report, or the proofs in Plaintiff's pleadings that Defendant and her boyfriend share a common residence, nor that they share other indicia of a marital-type relationship. The court is not persuaded that Defendant taking vacations with Mr. M.J. or one piece of mail being addressed to him at Defendant's home is sufficient to bolster Plaintiff's argument of cohabitation.

The judge also found that defendant did not present a prima facie case of cohabitation entitling him to discovery and denied his motion without prejudice, "due to insufficient proofs." This appeal followed.

Our analysis of this matter begins with certain settled legal principles. Courts have the equitable power to establish alimony and support orders and "to revise such orders as circumstances may require." Crews v. Crews, 164 N.J. 11, 24 (2000) (citing Lepis v. Lepis, 83 N.J. 139, 145 (1980)). In addition, N.J.S.A. 2A:34-23 authorizes modification of all support orders, including permanent alimony, "as circumstances may require." Further, a trial judge has broad discretion in reviewing an application to modify alimony. Storey v. Storey, 373 N.J. Super. 464, 470 (App. Div. 2004). "Whether an alimony obligation should be modified based upon a claim of changed circumstances rests within a Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (citing Innes v. Innes, 117 N.J. 496, 504 (1990)). To vacate a trial court's findings in a proceeding modifying alimony, an appellate court must conclude that the trial court clearly abused its discretion, failed to consider all of the controlling legal principles, or it must otherwise be well satisfied that the finding[s] [were] mistaken, or that the determination could not reasonably have been reached on sufficient credible evidence present in the record after consideration of the proofs as a whole.

file:///C|/Users/Peter/Desktop/Opinions/a4757-10.opn.html[4/20/2013 5:22:50 PM]

a4757-10.opn.html

[Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993) (internal citations and quotation marks omitted).] Cohabitation may qualify as "changed circumstances" warranting modification or termination of alimony payments set forth in a PSA. Lepis, supra, 83 N.J. at 151. Cohabitation occurs when there is "an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage," which 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." Konzelman v. Konzelman, 158 N.J. 185, 202 (1999). In addition, cohabitation requires "stability, permanency and mutual interdependence." Ibid. The court must evaluate whether the relationship "bears the 'generic character of a family unit as a relatively permanent household.'" Gayet v. Gayet, 92 N.J. 149, 155 (1983) (quoting State v. Baker, 81 N.J. 99, 108 (1979)). Furthermore, "[c]ohabitation is not defined or measured solely or even essentially by 'sex' or even by gender." Konzelman, supra, 158 N.J. at 202. Absent a contrary provision in the PSA, cohabitation is a changed circumstance only if coupled with economic changes resulting from the cohabitation. Id. at 196. The economic benefit to either cohabitor must be sufficiently material to justify relief. Gayet, supra, 92 N.J. at 153-54. Under this economic needs test, "the reduction in alimony is granted in proportion to the contribution of the cohabitor to the dependent spouse's needs." Konzelman, supra, 158 N.J. at 196. The crux of plaintiff's argument on appeal is that, at a minimum, he provided evidence sufficient to entitle him to discovery and a plenary hearing on his cohabitation claim. A prima facie case of cohabitation must be established by the moving party before further discovery or a plenary hearing is warranted. Lepis, supra, 83 N.J. at 157. Once a prima facie case is established, then the burden of proof shifts to the dependent spouse to contest the alleged cohabitation. Ozolins v. Ozolins, 308 N.J. Super. 243, 248-49 (App. Div. 1998). Based upon our review of the record, we are satisfied that the trial judge did not abuse her discretion in finding plaintiff had not presented enough evidence to demonstrate cohabitation or create a rebuttable presumption of cohabitation. As the trial judge noted, the investigator's report presented a brief snapshot of six days during which M.J. stayed overnight at defendant's residence three nights. Plaintiff's

file:///C|/Users/Peter/Desktop/Opinions/a4757-10.opn.html[4/20/2013 5:22:50 PM]

a4757-10.opn.html

claim that M.J.'s apartment constituted a "sham residence" was completely unsubstantiated. That defendant and M.J. were involved in a romantic relationship since 2008 was undisputed. The trial judge reasonably determined, however, that plaintiff's evidence that defendant and M.J. spend considerable time together, as people in romantic relationships often do, is not sufficient to establish a prima facie case that they share a marital-type relationship. Finding no abuse of discretion, we defer to the trial judge's decision. A

ffirmed.

1 We use initials to protect the privacy of a non-litigant.

This archive is a service of Rutgers School of Law - Camden.

file:///C|/Users/Peter/Desktop/Opinions/a4757-10.opn.html[4/20/2013 5:22:50 PM]



Download a4757-10.opn.pdf

New Jersey Law