FRANCES CASO VS. FERNANDO GUERRERO(FM-02-2622-11, 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NOT FOR PUBLICATION WITHOUT THE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-3649-14T3
FRANCES CASO,
Plaintiff-Appellant,
v.
FERNANDO GUERRERO,
Defendant-Respondent.
_________________________________
Argued on November 30, 2016 – Decided September 13, 2017
Before Judges Fuentes, Simonelli and Gooden
Brown.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Bergen
County, Docket No. FM-02-2622-11.
Mark P. Fierro argued the cause for appellant.
Gerald R. Salerno argued the cause for
respondent (Aronsohn Weiner Salerno & Kaufman,
PC, attorneys; Mr. Salerno and Keri L. Greene,
on the brief).
PER CURIAM
Plaintiff Frances Caso appeals from the March 2, 2015 order
of the Family Part, granting defendant Fernando Guerrero's motion
to terminate his alimony obligation based on plaintiff's
cohabitation, and ordering plaintiff to repay $111,600,
representing the overpayment of alimony from March 25, 2013 to
February 28, 2015. We affirm.
We glean the following facts from the record. The parties
married on December 23, 2003 and divorced on September 27, 2011.
No children were born of the marriage. The Dual Final Judgment
of Divorce (DJOD) incorporated the terms of a Property Settlement
and Support Agreement (PSSA), which the parties voluntarily
negotiated and entered into with the assistance of independent
counsel. Article III of the PSSA addresses alimony. Subsection
3.1 delineates defendant's obligation to pay plaintiff limited
duration alimony for a period of six years at a rate of $7200 per
month, commencing on October 1, 2011. Under Subsection 3.2,
alimony "shall terminate before the six (6) year term upon the
death of [defendant] or the death of [plaintiff], the remarriage
of [plaintiff], whichever event first (1st) occurs." Subsection
3.2 provides further that:
in the event that [plaintiff] cohabits with
an unrelated adult male in a relationship
tantamount to marriage, and pursuant and
subject to the then current New Jersey case
law, [defendant] shall have the right to make
an application to the [c]ourt for modification
and/or termination of the alimony based upon
the then-existing facts and then-existing case
law.
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Any modification of the alimony obligation was restricted
under the PSSA as follows:
3.4 Neither [p]arty shall seek to obtain from
the other, either formally or informally,
through court application, nor otherwise, any
modification of the per annum spousal support
payments set forth in paragraph 3.1 of this
Agreement. By virtue of their execution of
and entry into this Agreement, the Parties
hereby waive their respective rights under
Lepis v. Lepis, 83 [N.J.] 139 (1980). Any
change in the needs, expenses, incomes and
employment or circumstances of the [p]arties,
including age, employment status and the like,
shall not constitute a basis or criterion to
be used, directly or indirectly, as an
application for a modification, increase or
extension of alimony, at any time, by either
party, to any court of competent jurisdiction.
3.5 The parties specifically agree that the
following events shall not be considered to
constitute a "change in circumstances" which
would justify either party seeking to modify
the provisions of this Agreement as it relates
to alimony:
1. Either party obtaining new employment;
and/or
2. Any increase or decrease in the net
salary of either party; and/or
3. Either party obtaining additional
income from any other source; and/or
4. Any increase in the cost of living
or living expenses as experienced by either
party; and/or
5. Either party becoming unemployed;
and/or
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6. Either party failing to obtain
employment; and/or
7. Any increase or decrease in the
gross or net salary or income of either party
above or below his or her present level of
earnings or income; and/or
8. Any illness, disability or
infirmity arising hereinafter; and/or
9. Any other reason whether
foreseeable or not.
On March 25, 2013, defendant filed a post-judgment motion
seeking to modify or terminate his alimony obligation retroactive
to October 1, 2011, claiming plaintiff was cohabitating with her
paramour, Jose Perez, who was the father of plaintiff's child born
approximately four months after the entry of the DJOD. After
determining that defendant met the prima facie burden of
demonstrating plaintiff's cohabitation, the trial court conducted
a plenary hearing during which the burden of proof shifted to
plaintiff to demonstrate the absence of economic benefit or
financial interdependence between herself and Perez. Plaintiff,
Perez, defendant and defendant's private investigator, Stephen
Bojekian, testified at the six-day plenary hearing.
Plaintiff claimed that she and Perez shared a casual,
noncommittal sexual relationship that produced a child in January
2012, whom they co-parent. Plaintiff admitted proposing to Perez
having a "designer" baby with him. Plaintiff claimed, however,
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that she and Perez never shared a residence, were not financially
interdependent, and the time spent together at each other's homes
was solely for the purpose of co-parenting. In contrast, defendant
asserted that the relationship between plaintiff and Perez was
intertwined beyond conception and co-parenting their daughter.
Defendant alleged that the relationship possessed elements of
cohabitation, including subsidizing each other's finances, shared
living arrangements and household duties, recognition of their
relationship in family circles and on social media and
participation in the lives of each other's families.
During the hearing, the evidence showed that, despite Perez'
marriage to someone else on September 20, 2013, and having a child
from that union, plaintiff and Perez spent up to five nights per
week together at each other's home, both prior to and subsequent
to Perez' marriage. They also traveled together, both with and
without their daughter, vacationed together, shared responsibility
for household chores and held themselves out as a married couple,
particularly on social media. Additionally, plaintiff hosted
Perez' family at her home, including his mother who traveled from
the Dominican Republic, Perez' home country, when plaintiff gave
birth to their daughter, and again in December 2013 to celebrate
a traditional Dominican Christmas as a family. Perez' sisters and
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brothers also visited plaintiff's home frequently, with two of his
sisters staying overnight.
The trial judge described Perez as follows:
Perez who fashions himself as a ladies'
man, spent 18 1/2 years in federal prison for
cocaine distribution, was released in or about
2008 and since released has not held a steady
job; yet Perez speaks as a self-proclaimed
jet-setter with a high profile New York club
nightlife, frequent dinners out, designer
clothing, and high-end automobiles. Most
interestingly, Perez, after the [d]efendant's
post-judgment motion was filed, married . . .
but made clear during testimony that fidelity
forms no part of his marital vows.
. . . .
Perez was very evasive in answering
questions presented to him, particularly
regarding the frequency with which he stayed
or continues to stay overnight in
[plaintiff's] Englewood Cliffs home. It
became patently clear to the [c]ourt that it
was in Perez' self-interest to maintain that
he did not stay overnight in [plaintiff's]
home, as overnights outside of New York,
without the permission of his federal
probation officer would be a violation of his
probation.1 Despite Perez claiming that he
received permission from his probation officer
for every overnight he spent in [plaintiff's
home], the [c]ourt finds suspect that Perez
could have presented unbiased third-party
proofs from his probation officer to lend
credibility to his testimony, but failed to
do so.
1
We believe the judge intended to refer to Perez being on parole
under the supervision of a parole officer.
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Perez described the inception of his
relationship with the [p]laintiff as a "goof."
He thought [p]laintiff's idea of a designer
baby was a joke, a game to [p]laintiff. He
claims to be "not the type of person to be in
one place" and that he "collects women as a
hobby."
Evidence of plaintiff and Perez' cohabitation was further
corroborated by Bojekian's investigation. Bojekian conducted
database searches that showed plaintiff's address as an address
associated with Perez. Bojekian's investigation of a Connecticut
and a New York address also associated with Perez revealed that
Perez was not residing at either address. Bojekian also installed
a pole camera to conduct video surveillance of plaintiff's home
over a fourteen-day period, beginning July 29, 2014. The
surveillance footage revealed Perez at the home during eight of
the fourteen days, where he engaged in activities such as taking
out the garbage, picking up the newspaper, conversing with a
neighbor, carrying packages into the home, emptying the trunk of
plaintiff's car, operating plaintiff's BMW and the Ducati
motorcycle plaintiff purchased for him, and washing her BMW and
Mercedes in the driveway. These activities occurred long after
Perez' September 20, 2013 marriage.
Neither plaintiff nor Perez disputed sharing household chores
in plaintiff's home. Both testified that plaintiff did the
cooking, laundry and light cleaning, while Perez retrieved mail,
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took out the garbage, washed the cars, assisted with heavy duty
cleaning, painted the entire house, repaired the sprinkler system
and maintained the home security system. In family circles and
social media, plaintiff and Perez referred to each other as husband
and wife. Plaintiff explained that "holding ourselves out . . .
in public like we really are married" was basically for the benefit
of their daughter. She also testified that "in that Spanish
community," those terms were "used very . . . loosely." Plaintiff
and Perez also purchased matching wedding rings from a pawnshop,
which they characterized in their testimony as "friendship rings."
In their postings on Facebook, Instagram and Twitter, plaintiff
referred to Perez as her "hubby," "boo-boo," "love," "world[,]"
"partner[,]" "life[,]" and Perez referred to plaintiff as his
"wife," "wifey[,]" "love," "partner," and "life." Perez also
referred to plaintiff's residence as his "home."
In a series of photographs posted by Perez depicting the
interior of plaintiff's garage with her expensive automobiles,
Perez wrote "[m]y garage is looking good" and "nice day gone
[cruising] in my [Mercedes] 500SL." When confronted with the
postings, Perez explained that he purposely made false
representations to deceive people. In recounting Perez' testimony
in that regard, the judge observed:
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[H]e is gratified about what he testifies is
his purposeful deceit of people. He testified
that the majority of his Facebook, Instagram
and Twitter posts were not legally or
factually accurate, but rather are oftentimes
specifically posted to either deceive or
aggravate others. His testimony speaks
volumes about his untrustworthiness.
Evidence also showed that plaintiff essentially supported
Perez and members of his family, and her spending and unexplained
bank deposits far exceeded defendant's alimony obligation, which
she claimed was her only source of income. Documentary evidence
in the form of cancelled checks showed that plaintiff paid
significant sums of money either directly to Perez or to third
parties on his behalf. Over an eighteen-month period, from
February 6, 2011 to September 27, 2012, these cancelled checks
totaled over $23,000, in addition to plaintiff purchasing
expensive gifts for Perez, such as the $18,000 Ducati motorcycle.
Plaintiff claimed that she was essentially paying Perez for work
he performed on her home.
Although plaintiff had not worked in thirteen years, her Case
Information Statement (CIS) showed expenses totaling $12,265 per
month, or $147,180 per year, which exceeded defendant's alimony
payments by $60,780 per year. Plaintiff explained that her mother
paid the mortgage and property taxes on her home and would
sometimes help her out financially. However, from 2011 through
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the middle of 2013, plaintiff's bank statements showed average
monthly deposits of $21,000, a sum far exceeding her monthly needs
as reflected on her CIS and monthly alimony payments from
defendant. Plaintiff attributed her excess deposits to funds
received from a pre-marital Franklin-Templeton bond account worth
approximately $90,000, and her receipt of equitable distribution
from an IRA Rollover totaling approximately $180,000. However,
even accounting for these additional sources, plaintiff was still
depositing unaccounted for funds at an average of $21,000 per
month.
The judge described plaintiff's finances thusly:
The testimony of [p]laintiff and Perez
as it relates to their finances can best be
described as farcical. . . .
Perez asserts that he owns a hotel in the
Dominican Republic and a home in Connecticut,
but does not live there, only uses the address
for the purpose of insuring his automobile at
reduced rates. He testifies to providing very
limited monies to [p]laintiff for their mutual
child. In fact, his contribution seems to
have been purchasing pampers or milk, on
occasion.
. . . .
Listening to [p]laintiff's testimony
makes clear that she receives little to no
financial support from Perez, but instead
serves as the primary, if not only, means of
financial support for Perez and the daughter
they share in common.
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In addition to funding his living
expenses in [plaintiff's home], [p]laintiff,
on occasion, has paid her paramour's rent, his
dental expenses, his automobile insurance, and
his gym membership. She purchased an $18,000
Ducati motorcycle for him, which she
registered in his name. She has further
lavished him with a $2,500.00 Gucci watch, a
$600.00 fur coat, Botox injections, and has
allowed him to use her luxury vehicles.
Plaintiff allows Perez to provide no
meaningful monetary support to their mutual
child. She welcomes, Perez, his "wife" and
their new child into her home and provides for
them as well. Eerily, Perez has some Svengali
effect upon plaintiff. It is almost as if
they live in a commune with no one but
[p]laintiff contributing to the financial
well-being of the clan.
. . . .
Plaintiff also testified that she is
incapable of working due to back injuries she
sustained in an automobile accident in 2013,
which aggravated a prior disc herniation.
Despite [p]laintiff's claim of inability to
work, not a scintilla of medical evidence was
presented to the [c]ourt to support that
claim. Further, [p]laintiff had no trouble
in traversing the courtroom in 3 1/2" stiletto
heels.
Nonetheless, plaintiff portrayed her economic situation as
dire. She testified that at different times, her utilities and
cable service were shut off, her credit card payments on her
thirteen cards were overdue, her car insurance lapsed and her BMW
was repossessed. Defendant acknowledged during his testimony that
plaintiff "had a terrible drug problem" and he had worked hard
11 A-3649-14T3
while they were together to get her off drugs. According to
defendant, after the parties separated, he would visit plaintiff
every two weeks to drop off her check and remove his personal
belongings from the residence. During one of his visits, defendant
observed drug paraphernalia and an unfamiliar phone containing
text messages for drug deals.
Following the hearing, in a written opinion, Judge Bonnie J.
Mizdol granted defendant's motion and terminated his alimony
obligation as of the March 25, 2013 filing date. Relying on
Konzelman v. Konzelman, 158 N.J. 185 (1999), Judge Mizdol
determined that the provision of the PSSA allowing for the
modification or termination of alimony was an enforceable contract
as "there [was] no dispute that the parties entered into their
PSSA knowingly and voluntarily after it had been negotiated with
the help of independent counsel" and "[i]ts fairness and equity
[was] not challenged." Judge Mizdol interpreted the PSSA "to mean
that [she] should apply the facts, statutory law, and case law in
existence at the time the [c]ourt is called upon to make the
cohabitation determination."
The judge found further "that the anti-Lepis provisions
contained in Article 3.4 of the PSSA [were] wholly inapplicable
to an allegation of cohabitation." She noted "[t]o find otherwise
would require the [c]ourt to find that the cohabitation language
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of Article 3.2 was entirely superfluous to the PSSA and despite
any cohabitation" by plaintiff, "[d]efendant would not be entitled
to seek termination or modification of his alimony obligation[,]"
an interpretation Judge Mizdol characterized as "nonsensical."
After finding the anti-Lepis provision inapplicable, Judge Mizdol
noted that modification or termination of alimony is justified
"whenever changed circumstances substantially modify the economic
conditions of the parties." Further, "'the dependent spouse's
cohabitation with another'" was "[s]pecifically included in the
changed circumstances to be considered" by the court.
Recognizing that her task was "to determine whether
circumstances have rendered all or a portion of the support
received unnecessary[,]" Judge Mizdol applied the principles of
Garlinger v. Garlinger, 137 N.J. Super. 56 (App. Div. 1975) and
Gayet v. Gayet, 92 N.J. 149 (1983), as well as the amended alimony
statute, N.J.S.A. 2A:34-23, to conclude that "the evidence
presented at the hearing proved overwhelmingly that [p]laintiff
was cohabiting with Perez." The judge determined further that
plaintiff failed "to prove lack of intertwinement and continued
need." Rather, the "proofs unequivocally demonstrate[d] that
[p]laintiff has been funding her paramour's lifestyle."
In making factual findings, Judge Mizdol found "the candor
of [p]laintiff and Perez waned" and even questioned "the veracity
13 A-3649-14T3
of the marriage of Perez shortly after the motion to terminate
alimony was filed." Notably, the judge observed "[p]laintiff
'creaming' her arms with body lotion during witness examination,
almost as if the proceedings were akin to casual entertainment,
rather than a trial proceeding." Although Judge Mizdol was "unable
to solve the mystery of the source of the sizeable deposits made
to [p]laintiff's bank account on a monthly basis," she determined
that "[p]laintiff's access to the funds cannot be denied."
In considering defendant's financial ability, Judge Mizdol
explained:
The [c]ourt is mindful that [d]efendant's
Case Information Statement[] . . .
demonstrates that he has the financial ability
to sustain alimony payments to [p]laintiff.
However, his ability is not the test, but
merely one of the factors the [c]ourt needs
to consider. That he has a contractual
obligation to [p]laintiff is without question.
That his contractual obligation is to
[p]laintiff and [p]laintiff alone is also
without question.
The judge concluded:
The evidence presented establishes that
[d]efendant is funding not only [p]laintiff's
large lifestyle, but the large lifestyle of
[p]laintiff's paramour, their mutual child,
and her paramour's extended family in some
communal like clan fashion; financial
obligations that are in no way [d]efendant's
obligations. Defendant is not required to
contribute toward the support of his former
spouse's paramour or the members of whatever
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contemporary lifestyle [p]laintiff chooses to
fund. Such a finding would be unconscionable.
Judge Mizdol entered judgment for $111,600 in favor of defendant,2
and awarded defendant counsel fees totaling $14,470.50. This
appeal followed.
On appeal, plaintiff argues the judge erred in finding
cohabitation. Plaintiff asserts that "[i]f anything, the alimony
obligation should have been modified during the time period in
which the [t]rial [c]ourt believed [plaintiff] was cohabiting with
[Perez]" and "reinstated . . . in full" once the court believed
the cohabiting ceased. Further, plaintiff argues the judge
improperly relied on plaintiff's "access to additional funds" to
determine "that she failed to prove her continued need for support"
because the PSSA expressly exempted "additional income" from any
source by either party as constituting changed circumstances
warranting a modification.
After carefully reviewing the record, we affirm substantially
for the reasons expressed by Judge Mizdol in her comprehensive and
well-reasoned written opinion of March 2, 2015. Judge Mizdol's
2
The judgment amount was calculated based on defendant making
monthly payments of $7,200 from April to December 2013, and monthly
payments of $3,600 from January 2014 to February 2015, when the
court granted defendant's application to reduce his alimony
payment pendente lite to avoid overpaying while awaiting the
hearing.
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factual findings are well-supported by "substantial, credible
evidence" in the record, particularly given the credibility issues
involved, 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 Mizdol's legal
conclusions, which are subject to our plenary review, are sound.
Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007). We
add only the following comments.
New Jersey embraces the resolution of marital controversies
through property settlement agreements (PSA), which are
voluntarily entered into and promote post-divorce stability.
Konzelman, supra, 158 N.J. at 193-94. PSAs are enforceable in
equity and governed by basic contract principles. Id. at 194.
"Among those principles are that courts should discern and
implement the intentions of the parties. Thus, when 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." Quinn v. Quinn, 225 N.J. 34, 45
(2016).
Provided both parties have knowingly and voluntarily agreed
to the contingency, a provision in a PSA that terminates an alimony
obligation upon a finding of a dependent spouse's cohabitation is
valid and enforceable, regardless of the economic consequences.
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Konzelman, supra, 158 N.J. at 196-97. "It is irrelevant that the
cohabitation ceased during trial when that relationship had
existed for a considerable period of time. Under those
circumstances, when a judge finds that the spouse receiving alimony
has cohabited, the obligor spouse is entitled to full enforcement
of the parties' agreement." Quinn, supra, 225 N.J. at 55.
Cohabitation involves an "intimate," "close and enduring"
relationship, requiring "more than a common residence" or mere
sexual liaison. Konzelman, supra, 158 N.J. at 202. Cohabitation
involves conduct whereby "the couple has undertaken duties and
privileges that are commonly associated with marriage." Ibid.
Indicia of cohabitation may also "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." Ibid.
The 2014 amendment to the alimony statute, that sets forth
considerations that bear upon cohabitation issues, authorizes
suspension or termination of alimony once cohabitation is
established. N.J.S.A. 2A:34-23(n).
Changed circumstances resulting from a dependent spouse's
cohabitation warrant modification "when (1) the third party
contributes to the dependent spouse's support, or (2) the third
party resides in the dependent spouse's home without contributing
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anything toward the household expenses." Gayet, supra, 92 N.J.
at 153. Simply stated, modification is required "only if one
cohabitant supports or subsidizes the other under circumstances
sufficient to entitle the supporting spouse to relief." Id. at
153-54. "[A] rebuttable presumption of changed circumstances
[arises] upon a prima facie showing of cohabitation. The burden
of proof, which is ordinarily on the party seeking modification,
shifts to the dependent spouse" to "show that there is no actual
economic benefit to the spouse or the cohabitant." Ozolins v.
Ozolins, 308 N.J. Super. 243, 245, 248-49 (App. Div. 1998). To
rebut the presumption, a dependent spouse must prove he or she
remains dependent on the former spouse's support. Gayet, supra,
92 N.J. at 154-55. Here, Judge Mizdol correctly determined that
plaintiff failed to meet her burden of proof.
Affirmed.
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