JOHN P. MCGOVERN VS. CITY OF ORANGEÂ (L-1596-14, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-2620-15T3
WILLIAM SLOAN,
Plaintiff-Appellant,
v.
CHERYL SLOAN,
Defendant-Respondent.
________________________________
Submitted March 27, 2017 – Decided April 6, 2017
Before Judges Sabatino and Haas.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Camden County,
Docket No. FM-04-1170-12.
Daniel K. Newman, attorney for appellant.
Michael A. Diamond, attorney for respondent.
PER CURIAM
In this post-judgment matrimonial matter, plaintiff William
Sloan appeals from the Family Part's January 22, 2016 order
terminating plaintiff Cheryl Sloan's obligation to continue to pay
him alimony. We reverse and remand for further proceedings.
The parties were married in June 1990 and divorced in June
2014. They have two children.
Pursuant to the parties' Matrimonial Settlement Agreement
("MSA"), which the trial court incorporated into the Final Judgment
of Divorce, defendant was required to pay plaintiff $400 per month
in permanent alimony beginning on April 1, 2015. In pertinent
part, Paragraph 15 of the MSA further provided:
For purposes of this [a]greement, the term
"permanent" alimony shall be governed by
existing New Jersey statutory and decisional
law as of December 17, 2013, the date the
parties appeared before . . . the Superior
Court of New Jersey, Chancery Division-Family
Part, Camden County. [Defendant] will be
released from her obligation to pay alimony
to the [plaintiff] upon satisfaction of the
"permanency" aspect of this obligation, at
which time she will be released from the
obligation thereof, or upon the death of
[plaintiff] or his remarriage.
On October 24, 2015, plaintiff and his girlfriend, I.G.,1
participated in what they called a "civil commitment ceremony." 2
Plaintiff and I.G. did not obtain a marriage license prior to this
ceremony. I.G. arranged for an officiant to conduct the ceremony
and told the officiant in an e-mail that she and plaintiff were
1
Because this individual is not a party to this litigation, we
use initials to identify her in order to protect her privacy.
2
The couple sent invitations to their family and friends inviting
them to "share in their Celebration of Love at their Commitment
Ceremony."
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"NOT getting married via a marriage license. We want to be married
under the eyes of God." The officiant provided a certification
stating that she did not "marry" plaintiff and I.G. on October 24,
2015 and that she did not "see, receive, handle, transmit, sign
or deliver any marriage license for the commitment ceremony
between" plaintiff and I.G.
Nevertheless, both plaintiff and I.G. made postings on social
media accounts stating that they were getting married. For
example, plaintiff posted on September 3, 2015 that he was
"marrying my best friend[,] [I.G.]" Plaintiff also announced his
"engagement" to I.G. in a wedding magazine.
During the commitment ceremony, plaintiff and I.G. referred
to each other as "husband" and "wife." At the end of the ceremony,
the officiant stated, "I now pronounce you to be husband and wife.
You may kiss your bride." In a subsequent internet post, I.G.
referred to sharing a meal with plaintiff at a seafood restaurant
by stating that she was having dinner with her "husband."
Upon learning of the ceremony, defendant filed a motion asking
that her alimony obligation be terminated under Paragraph 15 of
the MSA because plaintiff had remarried. Plaintiff opposed
defendant's application and asserted that because he and I.G.
never obtained a marriage license, he had not remarried within the
intendment of Paragraph 15.
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Following oral argument on January 22, 2016, the trial judge
granted defendant's motion to terminate her alimony obligation.
In a very brief oral decision, the judge acknowledged that
plaintiff and I.G. were not legally married. However, even though
testimony was not taken from the parties and I.G. at a plenary
hearing, the judge concluded that plaintiff and I.G. had
done everything to be married except for issue
the certificate [sic] in an attempt to avoid
losing alimony, and I find that to be
intentional. And I don't think that's
equitable and I don't think that that's fair.
. . . I don't have a marriage whatsoever. But
I have someone taking all the steps there are
to be a married couple just to solely twist
or abuse the language, what a "marriage" is.
And that I'm not going to permit in my
courtroom.
This appeal followed.
On appeal, plaintiff asserts that Paragraph 15 of the MSA
only permitted defendant's alimony obligation to be terminated
upon his remarriage. Because he and I.G. never obtained a marriage
certificate, plaintiff contends that they were not legally married
and, therefore, the judge erred by terminating alimony based on
his participation in the commitment ceremony. We agree.
The scope of our review of the Family Part's orders is
limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). We owe
substantial deference to the Family Part's findings of fact because
of that court's special expertise in family matters. Id. at 413.
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However, findings by a trial court are only "binding on appeal
when supported by adequate, substantial, credible evidence." Id.
at 412-13. Moreover, we owe no deference to the trial judge's
legal conclusions, which we review de novo. Manalapan Realty,
L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Here, the trial judge did not engage a detailed analysis of
Paragraph 15 of the MSA. On its face, however, defendant's alimony
obligation could only be terminated under the provision upon
plaintiff's "death or his remarriage."
With regard to the question of whether plaintiff and I.G.
"married" each other at the commitment ceremony, N.J.S.A. 37:1-10
clearly provides:
[N]o marriage contracted on and after December
[1, 1939], shall be valid unless the
contracting parties shall have obtained a
marriage license as required by [N.J.S.A.]
37:1-2 . . . , and unless, also, the marriage,
after license duly issued therefor, shall have
been performed by or before any person,
religious society, institution or
organization authorized by [N.J.S.A.] 37:1-13
. . . to solemnize marriages; and failure in
any case to comply with both prerequisites
aforesaid which shall always be construed as
mandatory and not merely directory, shall
render the purported marriage absolutely void.
[(emphasis added).]
As our former colleague Judge Mary Catherine Cuff observed in
Yaghoubinejad v. Haghighi, N.J.S.A. 37:1-10 "accomplishes three
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things. First, it abolishes common law marriage. Second, it
requires that a license to marry be procured before the ceremony.
Third, it requires that the marriage be solemnized by an authorized
person or entity." Yaghoubinejad v. Haghighi, 384 N.J. Super.
339, 341 (App. Div. 2006).
Here, there is nothing in the record to indicate that
plaintiff and I.G. ever obtained the marriage license required by
N.J.S.A. 37:1-2 and N.J.S.A. 37:1-10 to make what occurred at the
"commitment ceremony" a lawful marriage. Both plaintiff and the
officiant certified that the couple did not have a marriage
license; the officiant stated that she never "married" plaintiff
and I.G.; and I.G. advised the officiant that she and plaintiff
only wanted to be "married under the eyes of God."
The fact that plaintiff and I.G. participated in a ceremony
where they referred to each other as husband and wife, and where
the officiant declared them to be husband and wife at the
conclusion of the ceremony is of no moment. In Lee v. Gen. Acc.
Ins. Co., 337 N.J. Super. 509, 512 (App. Div. 2001), the plaintiff
and his girlfriend, Jones, applied for a marriage license, but the
license was denied because they did not obtain a timely blood
test. They nevertheless participated in a marriage ceremony
presided over by a member of the clergy and then lived together
in a house they jointly purchased. Ibid.
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Thereafter, Jones obtained an automobile insurance policy and
listed her marital status as "single." Id. at 511. About six
months later, the plaintiff was injured in an accident and later
filed a claim under Jones's policy for uninsured motorist benefits.
Id. at 512. However, these benefits were only available to a
"'family member,' which was defined by the policy as a person
related to the insured by 'blood, marriage, or adoption.'" Id.
at 511.
In Lee, we held that because the plaintiff and Jones never
obtained a marriage license as required by N.J.S.A. 37:1-10, they
were not legally married and, therefore, the plaintiff was not
eligible for coverage as a "family member" under Jones's policy.
Id. at 514. In commenting upon the plaintiff and Jones's
participation in a ceremonial wedding, we noted that that event
"add[ed] nothing to the case [because] [u]nder our statutes, the
wedding was meaningless[,] [and] [t]he marriage was void from its
inception." Id. at 516 (citing N.J.S.A. 37:1-10). We also stated:
We . . . believe that a brightline rule best
serves the interests of justice. Ceremonial
marriages carry with them varying degrees of
solemnity, publicity and prior deliberation.
The courts should not be placed in a position
of having to pick and choose which forms of
relationships are to be recognized as having
the elements of marriage, and which do not.
[Ibid.]
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Applying these principles to the present case, we are
constrained to reverse the trial judge's conclusion that
plaintiff's and I.G.'s participation in the "commitment ceremony"
and their prior and subsequent statements that they were married
were tantamount to a "marriage" under Paragraph 15 of the MSA.
Because the judge did not conduct an evidentiary hearing, there
is nothing in the record to indicate that the parties intended the
term "marriage" in the MSA to refer to anything other than a lawful
marriage conducted under the authority of a validly-issued
marriage license as required by N.J.S.A. 37:1-2 and N.J.S.A. 37:1-
10. Thus, because plaintiff and I.G. are not legally married, the
judge mistakenly terminated defendant's alimony obligation under
Paragraph 15.
However, although we have concluded that the trial judge
should not have terminated defendant's alimony obligation, nothing
prevented the court from considering whether defendant's
obligation should have been modified because plaintiff was now
cohabiting with I.G. As noted above, Paragraph 15 provided that
defendant's alimony obligation would continue until plaintiff's
death or remarriage. Thus, this provision did not compel
termination of defendant's payments upon cohabitation by
plaintiff. Nevertheless, the parties did not include a specific
"anti-Lepis" provision in their MSA barring defendant's support
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obligation from being modified, rather than terminated, if by
cohabiting with another, plaintiff's economic needs changed.
It is well established that absent an agreement specifying
to the contrary, cohabitation by a party may constitute a changed
circumstance warranting a modification of alimony when it is
coupled with a change in the recipient's economic needs and
circumstances. Lepis v. Lepis, 83 N.J. 139, 151 (1980). If the
payor spouse can prove cohabitation of the dependent spouse, the
payor can seek a reduction in alimony by showing either that the
dependent spouse's economic needs have decreased due to the
financial assistance of another or by showing that the payor's
alimony payments are subsidizing the third-party cohabitant.
Boardman v. Boardman, 314 N.J. Super. 340, 347 (App. Div. 1998).
Here, it appears from the record that although they are not
legally married, plaintiff and I.G. are living together. However,
because the parties did not exchange financial information or
engage in other discovery, the record does not disclose the extent
to which plaintiff's and I.G.'s finances are intertwined or whether
they share expenses.
Under these unique circumstances, we remand this matter to
the trial court to consider whether a modification of alimony is
appropriate due to changed circumstances. We suggest that the
court hold a prompt case management conference with the parties
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as soon as practical to determine what discovery is needed, the
timetable for completing same, and whether a plenary hearing is
necessary to resolve any disputed facts or questions of contract
interpretation of the MSA.
The remand proceedings, including the conduct of any plenary
hearing, should be completed with the issuance of a decision within
120 days of the date of this opinion. Pending the completion of
the remand, and subject to a possible retroactive adjustment for
arrears should the court order that alimony be reinstated at the
original or reduced amount, defendant's alimony obligation to
plaintiff shall remain suspended.
Finally, we note that before the trial court, neither party
argued that the judge should have applied the new provisions of
N.J.S.A. 2A:34-23 in this case. On September 10, 2014, the
Legislature adopted amendments to "N.J.S.A. 2A:34-23, designed to
more clearly quantify considerations examined when faced with a
request to establish or modify alimony." Spangenberg v.
Kolakowski, 442 N.J. Super. 529, 536-37 (App. Div. 2015) (holding
that the Legislature did not intend that these amendments be
applied retroactively to orders specifying the duration of alimony
or incorporating agreed-upon terms of alimony). One of the
amendments permits a trial court to suspend or terminate alimony
upon proof that the dependent spouse is cohabiting with another
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individual, even if the dependent spouse's economic need has not
been affected. N.J.S.A. 2A:34-23(n). Because the parties did not
address the applicability of this amendment to the question of
whether defendant's alimony obligation should be modified due to
plaintiff's cohabitation with I.G., they should have the
opportunity to do so on remand.
Reversed and remanded. We do not retain jurisdiction.
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