ELENA KLYACHMAN VS. MICHAEL J. GARRITY(FM-02-1642-12, BERGEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-0441-15T2
ELENA KLYACHMAN,
Plaintiff-Respondent,
v.
MICHAEL J. GARRITY,
Defendant-Appellant.
___________________________________
Argued November 2, 2016 – Decided June 26, 2017
Before Judges Fuentes, Carroll and Gooden
Brown.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-1642-12.
Michael E. Spinato argued the cause for
appellant (Michael E. Spinato, P.C., attorney;
Jacqueline M. Pimpinelli, on the brief).
Deirdre Rafferty Thompson argued the cause for
respondent (Trapanese & Trapanese, attorney;
Ms. Rafferty Thompson, on the brief).
PER CURIAM
Defendant Michael J. Garrity and plaintiff Elena Klyachman
married in October 1999 and divorced on July 24, 2012. They had
one child, a girl born in 2003 who will be fourteen years old in
December 2017. The final judgment of divorce (JOD) incorporated
the terms of a Property Settlement Agreement (PSA), which the
parties voluntarily negotiated and entered into with the
assistance of independent counsel. The PSA addressed all of the
issues associated with the dissolution of the marriage.
This appeal concerns the interpretation and enforcement of
Articles III and IV of the PSA. Article III delineates defendant's
obligation to pay plaintiff limited duration alimony in the sum
of $21,000 per year for a period of six years, commencing August
1, 2012. At issue here is Subsection 3.3(d), which terminates
this alimony obligation if plaintiff "cohabitat[es] with an
unrelated person in accordance with applicable New Jersey Law."
Article IV of the PSA addresses the child's custody and
parenting time. It was supplemented by a Consent Order executed
by the parties on May 18, 2012. Article IV comprehensively and
meticulously describes the custodial and decision-making protocols
for apprising and involving the parents of any matter touching
upon the child's health and emotional well-being. By way of
example, Subsection 4.6 under Article IV "expressly" prohibits the
parties from doing
anything to alienate the child's affection or
to color the child's attitude toward the
other. On the contrary, both parties shall
cooperate in every way to help the child
better adjust [herself] to the circumstances
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as they now exist, and may in the future exist.
Both parties shall conduct themselves in a
manner that shall be best for the interest,
welfare and happiness of the child, and
neither party shall do anything, which shall
adversely affect the morals, health and
welfare of the child.
The Consent Order also requires the parties to "consult and
confer with each other with regard to all major issues relating
to the child's health, safety, welfare and education." Under the
Consent Order, the parties agree "to attempt to work together
[and] to make decisions that are in the best interest[s] of the
child."
On July 21, 2015, defendant filed a post-judgment motion in
the Family Part seeking to terminate his alimony support obligation
under Article III, Subsection 3.3(d) of the PSA, claiming plaintiff
was in a romantic relationship and "cohabiting" with an unrelated
man, as that term is defined in N.J.S.A. 2A:34-23(n). Defendant
also sought to modify the parenting time arrangement from one that
designated plaintiff as "the parent of primary residence" to a
shared-custody arrangement because he recently purchased a house
in the Borough of Fair Lawn that had a separate bedroom for his
teenaged daughter.
Plaintiff filed a cross-motion opposing defendant's
application and seeking to compel defendant to pay his fair share
of the child's extracurricular activities, provide proof he is
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maintaining life insurance as required under the PSA, and refrain
from disparaging plaintiff in the child's presence. In particular,
plaintiff claims defendant made derogatory remarks about her
cultural background as a Russian immigrant.
The only evidence presented to the Family Part in support of
the relief requested came from the parties' conflicting
certifications. After considering the arguments of counsel, the
judge denied both motions. With respect to defendant's motion,
the judge found his certifications did not allege sufficient facts
to establish cohabitation within the meaning of N.J.S.A. 2A:34-
23(n). The judge also found defendant did not present sufficient
facts to establish a prima facie case of changed circumstances to
warrant a plenary hearing concerning the custody of the child.
In this appeal, defendant argues the Family Part erred when
it found he did not assert sufficient facts to warrant a plenary
hearing on both of these issues. We agree and remand for the
Family Part to enter a case management order (CMO) permitting the
parties to conduct limited discovery on both issues raised by
defendant. At the conclusion of discovery, the judge shall
determine whether a plenary hearing is warranted and make factual
findings and conclusions of law based on the evidence presented
therein.
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I
Cohabitation
In the certification submitted in support of the motion to
terminate his limited duration alimony obligation, defendant
averred that plaintiff has had an ongoing romantic relationship
with her coworker for the past ten years, which predates the filing
of the divorce complaint. Defendant claims plaintiff has taken
many vacations in which both her daughter and her paramour's own
children shared a common residence. He also claims plaintiff and
this man openly present themselves as husband and wife at social
gatherings.
According to defendant, starting in June 2015, plaintiff's
paramour "rented the top floor of the two-family home where
[p]laintiff resides and occupies the first floor." Although
defendant does not know whether they have "intertwined their
finances," he claims they are cohabitating as husband and wife in
all other respects. Defendant argues he presented sufficient
evidence of cohabitation to justify court-ordered discovery
limited to plaintiff's finances.
In her response certification, plaintiff denied she has had
"a romantic relationship" with a coworker for ten years. But she
conceded she has "a boyfriend and [d]efendant is upset that I am
happy." Plaintiff denied living with anyone other than her
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daughter. She admitted she lives in a two-family house and "[t]he
man I am now dating . . . is renting the other apartment." However,
she characterized this arrangement as "neighbors" not cohabitants.
Plaintiff also confirmed that she and her daughter have vacationed
with her boyfriend and his children. She denied any suggestion
that she ever intermingled her finances with her boyfriend.
The Legislature requires a Family Part judge to consider the
following statutory factors in determining whether alimony should
be suspended or terminated:
Alimony 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
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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;1 and
(7) All other relevant evidence.
[N.J.S.A. 2A:34-23(n) (emphasis added).]
The motion judge acknowledged that a court "may find
cohabitation in instances where the parties are not actually living
together." The judge also observed that "there doesn't appear to
be any intertwining of finances or expenses." With respect to the
duration of the relationship, the judge found "[t]hey have been
going out for a long time." The motion judge finally concluded:
[T]here are factors which weigh in favor of a
finding of cohabitation, and there are
factors, frankly, that weigh against it. I
realize that often courts are compelled to
conduct plenary hearings when there are
material issues of disputed fact. I don't
believe in this case, although I acknowledge
that the plaintiff, again, there's no disputed
fact here, the plaintiff and her boyfriend
live under the quote "same roof" end quote.
But . . . the evidence I've heard and the
submissions and the certifications leads me
to believe that the defendant has not made out
a prima facie showing of cohabitation.
1
N.J.S.A. 25:1-5 refers to a legally binding written promise of
support which replaced the common law oral agreements commonly
known as "palimony."
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It is well-settled that disputes of material facts should not
be resolved on the basis of certifications. Palmieri v. Palmieri,
388 N.J. Super. 562, 564 (App. Div. 2006). This is because warring
certifications have the "unfortunate effect of yielding more heat
than light, ultimately leaving unresolved the central issues
raised by the parties." D.A. v. R.C., 438 N.J. Super. 431, 439
(App. Div. 2014). It is undisputed that Article III, subsection
3.3(d) of the PSA provides for the termination of alimony if
defendant shows plaintiff cohabitates "with an unrelated person
in accordance with applicable New Jersey law." The parties further
agree that the phrase "applicable New Jersey law" refers to the
standards established by the Legislature in N.J.S.A. 2A:34-23(n).
Here, the motion judge found plaintiff is in a long-term
romantic relationship with an unrelated man who now resides in the
same two-family dwelling that she occupies. Defendant also alleged
plaintiff and her paramour vacation together with both of their
children and present themselves as husband and wife in social
gatherings. Based on this record, we are satisfied the motion
judge erred in not affording defendant the opportunity to conduct
limited discovery to develop competent evidence to prove his case
in a plenary hearing. The Family Part Judge retains the discretion
to limit both the scope and method of discovery.
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With respect to the issue of alimony, we suggest the motion
judge limit the scope of discovery to the statutory factors in
N.J.S.A. 2A:34-23(n) and the method for gathering evidence to a
limited number of written interrogatories and production of
documents. The judge also has the discretion to permit the
deposition of the parties.
II
CHILD CUSTODY MODIFICATION
Defendant's current parenting time arrangement allows his
daughter to stay with him on Tuesdays and Thursdays, from 6:00
p.m. to 8:00 p.m., and on alternate weekends, from Friday through
Sunday night. Defendant claims that over the past several months,
his teenaged daughter becomes "sad and sullen as the time
approaches for our weekend parenting time to end." In support of
his request to modify the current custodial arrangement, defendant
emphasizes that he purchased a home two miles away from plaintiff's
residence in Paramus; the child has her own bedroom in that house.
In her certification in response to defendant's motion,
plaintiff claimed defendant "had and still has a serious drinking
problem." Plaintiff also noted that defendant "rents his basement
to a single male on weekends who may have similar problems[.]
. . . It is for this reason I am nervous when [the child] has to
spend overnights in [d]efendant's house." Plaintiff also alleged
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that defendant was violent and unduly possessive during their
marriage. With respect to her child's well-being, plaintiff
alleged that her daughter "returns home telling me that her father
degrades whatever activity [the child] is interested in
participating. He is attempting to mold [her] into the
isolationist he is."
Plaintiff and defendant acknowledged in their respective
certifications that their daughter has participated in
psychotherapy. But they disputed whether the therapy furthers her
best interests and sought the court's intervention on the matter.
The language in the parties' certifications reveals that they
inflexibly maintain conflicting positions about the best interests
of their teenaged daughter.
Addressing this issue, the motion judge made the following
ruling:
So I'm going to order that in lieu of a plenary
hearing on the custody issue, I don't believe
that we need to have . . . joint residential
custody. I don't think [defendant] made a
showing that [the child's] life needs to be
disrupted. I understand that they live only
two miles apart from each other, but I agree
with plaintiff's counsel, I don't think that
her life needs to be disrupted to that extent,
but I do believe that the defendant should be
entitled to more time with the child.
And I think given . . . the fact that the
parties agreed to have a particular parenting
time schedule back in 2012, it should be
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enforced, including overnights at the
defendant's residence.
Defendant argues the motion judge erred in reaching this
decision without addressing any of the factors in N.J.S.A. 9:2-4.
We agree. "In contested cases, the court is required to make a
record of its reasons for its custody decision[.]" Kinsella v.
Kinsella, 150 N.J. 276, 317 (1997) (citing N.J.S.A. 9:2-4f). It
also "must reference the pertinent statutory criteria with some
specificity[.]" Ibid. (quoting Terry v. Terry, 270 N.J. Super.
105, 119 (App. Div. 1994)). Absent the statutory factors, a court
cannot determine if a custodial arrangement serves the best
interests of a child. D.A., supra, 438 N.J. Super. at 450.
Although not raised by the parties, we are compelled to note
that "[i]n family actions in which the court finds that either the
custody of children or parenting time issues, or both, are a
genuine and substantial issue, the court shall refer the case to
mediation in accordance with the provisions of [Rule] 1:40-5." R.
5:8-1 (emphasis added). Finally, given the child's age, we also
recommend that the Family Part consider whether it would be
appropriate to interview the child as provided by Rule 5:8-6. See
also D.A., supra, 438 N.J. Super. at 455 (holding "the decision
whether to interview a child in a contested custody case is left
to the sound discretion of the trial judge").
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III
Conclusion
We reverse the ruling of the Family Part and remand for the
court to permit defendant to conduct limited discovery to
determine: (1) whether defendant can prove plaintiff is not
entitled to limited duration alimony under Article III, Subsection
3.3(d) of the PSA, because she cohabitates with an unrelated man
under N.J.S.A. 2A:34-23(n); and (2) whether changing the custodial
arrangement of the parties' teenaged daughter serves her best
interests. In making these determinations, the Family Part shall
apply the factors in N.J.S.A. 9:2-4, refer the case to mediation
under Rule 5:8-1, and consider interviewing the child under Rule
5:8-6. We leave the scope and method of discovery to the sound
discretion of the Family Part.
Reversed and remanded. We do not retain jurisdiction.
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