M.D. VS. M.D. (FM-13-1875-07, MONMOUTH COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-1262-17T4
M.D.,
Plaintiff-Appellant,
v.
M.D.,
Defendant-Respondent.
____________________________
Argued January 29, 2019 – Decided February 27, 2019
Before Judges Suter and Firko.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FM-13-1875-07.
Charly Gayden argued the cause for appellant.
Claire Scully argued the cause for respondent.
PER CURIAM
Plaintiff M.D.1 appeals the denial of his post-judgment motion to
terminate permanent alimony based on defendant M.D.'s alleged cohabitation.
He argues that the trial court erred in denying his motion, and by failing to
permit discovery and schedule a plenary hearing. For the reasons that follow,
we reject these arguments and affirm.
I.
The parties married in 1998 and had no children. Ten years later, they
entered into a Property Settlement Agreement (PSA) addressing various issues,
including alimony. Both parties were represented by counsel.
Relevant to this appeal, the PSA provided that plaintiff would pay
defendant permanent alimony of $165 per week. 2 The PSA contained the
following termination of alimony clause:
The obligation of the [plaintiff] to pay alimony to
[defendant] shall end upon (a) the death of [defendant]
(b) the remarriage of [defendant] (c) commencement of
co-habitation by [defendant] with another man (subject
to the standards set forth in Gayet v. Gayet, 92 N.J. 149
(1983)[)] or the (d) death of [plaintiff] whichever event
occurs first. Thereafter, both parties permanently
waive any right to receive alimony, maintenance and/or
support in any form whatsoever from the other party. It
is expressly understood and agreed that the presence of
1
We use initials to protect the privacy of the parties.
2
Plus $10 per week towards arrearages until paid.
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a paid caregiver who resides with [defendant] and who
provides assistance with respect to [defendant's]
Activities of Daily Living shall not be considered to be
co-habitation.
[(Second emphasis added).]
In addition, the following anti-Lepis3 clause was set forth in the PSA:
Each party acknowledges that the alimony provisions
set forth herein shall not be affected by the past, present
and/or future income or financial circumstances of
either or both of the parties. The within waiver takes
into consideration any change in circumstances,
including but not limited to, loss of health, disability
and/or unemployment. Neither party shall ever have
responsibility for the payment of the other's medical
bills or insurance in the event of the other party's loss
of health, catastrophe, injury or permanent disability.
Each party has had his or her respective rights and
duties fully explained to them in consideration of all the
matters and things assigned and transferred to each by
the other, and in consideration of the other promises
contained herein does hereby forever release, waive and
discharge the other from any additional right, duty or
obligation for alimony, support or maintenance, either
temporary or permanent. As to alimony or support for
either party, both parties have had the holding of Lepis
v. Lepis, 83 N.J. 139 (1980) explained and each party
waives the right to seek modification of this waiver of
support regardless of any change in circumstances to
either or both parties.
3
Lepis v. Lepis, 83 N.J. 139 (1980).
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A final judgment of divorce incorporating the PSA was entered on
September 30, 2008.
In July 2004, defendant, a nurse, suffered a severe back injury while lifting
a patient. Her injury required three surgical procedures that were performed
prior to the divorce. The parties dispute their date of separation – 2006
according to plaintiff and 2004 according to defendant. Regardless of their
different recollections, it is undisputed that prior to the divorce, plaintiff moved
out of the former marital home in Pennsylvania and relocated to New Jersey.
Plaintiff claims that he had "no knowledge" of defendant's purported paramour,
J.M., moving in with her. Defendant denies ever having a romantic relationship
with J.M. and referred to him as a "brother" in her certification submitted in
response to plaintiff's motion. J.M. socialized with defendant's family over the
years, and they appear in photographs together, according to her certification.
After moving to New Jersey, plaintiff broke into defendant's residence and
she observed him "destroying [her] home and belongings," and acting "crazily."
For her protection, defendant contends that J.M. stayed with her that night and
moved in with her in late 2007, after the complaint for divorce was filed and
following her third surgery, to serve as her caretaker and to protect her from
plaintiff. During the pre-trial phase of the divorce proceedings, plaintiff argues
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that he attempted to subpoena J.M., a non-party, for a deposition in February
2008, and he did not appear. 4 Our review of the record does not reveal that J.M.
was served with a deposition subpoena within the State of New Jersey or that a
petition for issuance of a commission, pursuant to Rule 4:11-5, to take his
deposition in the Commonwealth of Pennsylvania was made. Thus, according
to defendant, there is no element of surprise as plaintiff claims.
Plaintiff argues that J.M. is cohabitating with defendant as defined by the
termination of alimony clause. Six years following the divorce, plaintiff hired
4
The record reflects that J.M. was a Pennsylvania resident. Rule 4:14-7(b)(1)
provides:
A resident of this State subpoenaed for the taking of a
deposition may be required to attend an examination
only at a reasonably convenient time and only (A) in
the county of this State in which he or she resides, is
employed or transacts business in person; or (B) at a
location in New Jersey within 20 miles from the
witness's residence or place of business; or (C) at such
other convenient place fixed by court order. A
nonresident of this State subpoenaed within this State
may be required to attend only at a reasonably
convenient time and only in the county in which he or
she is served, at a place within this State not more than
40 miles from the place of service, or at such other
convenient place fixed by court order. The party
subpoenaing a witness, other than one subject to
deposition on notice, shall reimburse the witness for the
out-of-pocket expenses and loss of pay, if any, incurred
in attending at the taking of depositions.
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a private detective to conduct surveillance of defendant, and it was only then he
ostensibly learned about her cohabitation, and that she moved from East
Stroudsburg to Bethlehem. After a few "drive-bys" past defendant's residence
and finding undated and unauthenticated social media photos of M.D. and J.M.,
the investigator concluded that the two were "paramours" and "cohabitating."
Defendant opposed the motion and challenged the issue of cohabitation by
countering that plaintiff introduced her to J.M., who was plaintiff's Alcoholics
Anonymous sponsor, and that plaintiff was aware of J.M. living with her since
2006. She concedes living with J.M. in a caregiving role, in separate bedrooms.
They do not commingle finances according to her certification. In exchange for
free rent, J.M. performs household chores, such as grocery shopping, laundry,
yardwork, and cooking.
A pretrial case management order indicates that plaintiff requested
discovery as to "contribution to living expenses by live-in significant others,"
evidencing his awareness of a potential cohabitation issue, but apparently he did
not pursue it. In March 2008, defendant was declared totally and permanently
disabled by the New Jersey Division of Workers' Compensation and this
determination was acknowledged in the PSA.
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By order entered on September 8, 2017, following oral argument, the trial
court denied plaintiff's motion. During oral argument, the judged queried, "does
she have a ring on her finger[?] Are their finances intertwined[?]" With regard
to defendant's circumstances, the court "found it very compelling that [the
parties] actually went so far as to distinguish cohabitation from a person giving
[defendant] assistance every day." Based upon the language in the PSA, the
court found that plaintiff "must have known" and must have been aware of J.M.
residing with defendant pre-divorce because plaintiff asked for discovery and
noticed his deposition.
Plaintiff contends that the Fair Labor Standards Act 5 distinguishes
domestic service workers from companions, and that the term "paid caregiver,"
as stated in the PSA, is ambiguous, warranting a hearing. We are not persuaded
by plaintiff's arguments. Our careful review of the record reveals that the trial
judge considered plaintiff's arguments by concluding:
The problem is of course you have the word paid in
there . . . . You know when we go down to one word I
have to say what's the theme of this case[?] [W]hat's
the spirit of this case[?] He's paid, you know. Do I say
to the lawyers you guys are all responsible for the
money here because you should have used the word
compensated[?] I don't get it.
5
29 U.S.C. § 206.
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The judge aptly addressed J.M. being provided with housing and that the
parties "understood that this is not going to be cohabitation with this person
living there." The court concluded that plaintiff failed to meet the burden
required to terminate his alimony obligation. We agree.
II.
A court has the equitable authority to modify support obligations set forth
in a property settlement agreement. Lepis, 83 N.J. at 149. But, "[a]n application
to modify an agreement is an exception, not the rule," as judges should
contemplate that agreements entered into in good faith "shall be performed in
accordance with their terms." Glass v. Glass, 366 N.J. Super. 357, 379 (App.
Div. 2004); see Avery v. Avery, 209 N.J. Super. 155, 160 (App. Div. 1986)
(noting "there is a strong public policy favoring stability of consensual
arrangements for support in matrimonial matters" (citing Lepis, 83 N.J. at 141)).
"As a practical matter, spousal agreements have great potential for
ensuring the desired degree of stability in support arrangements." Lepis, 83 N.J.
at 153-54 (citing Petersen v. Petersen, 172 N.J. Super. 304 (App. Div. 1980); De
Graaff v. De Graaff, 163 N.J. Super. 578 (App. Div. 1978)). "Such agreements
have traditionally been more comprehensive and particularized than court
orders, and thus more carefully tailored to the peculiar circumstances of the
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parties' lives." Id. at 154. Accordingly, such agreements are "entitled to
significant consideration." Glass, 366 N.J. Super. at 372; see Ozolins v. Ozolins,
308 N.J. Super. 243, 249 (App. Div. 1998) (reversing the termination of alimony
and finding that the judge erred in failing to "factor in the principle that the
amount of alimony here was set originally by the parties themselves," as such
agreements ordinarily include trade-offs between the parties). Only when
circumstances arise where enforcement of the agreement becomes inequitable
should an exception be made to the strict enforcement of the agreement's terms.
Glass, 366 N.J. Super. at 379.
Parties are free to enter into voluntary agreements departing from the
general Lepis rule and establish their own standards by which they agree to be
guided in cases involving "reasonably foreseeable future circumstances . . . ."
Morris v. Morris, 263 N.J. Super. 237, 241 (App. Div. 1993). Anti-Lepis
provisions, which purport to waive the right to future modification, are
enforceable in certain limited circumstances. Ibid. The party seeking
modification has the burden of demonstrating such changed circumstances as
would warrant relief from his or her obligation. Notably, plaintiff does not
challenge the validity of the anti-Lepis provision.
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Viewed broadly, the parties' negotiated PSA contained trade-offs that
were freely and fairly negotiated, with the assistance of counsel on both sides.
There is no evidence that the cohabitation and anti-Lepis provisions were not
knowingly and voluntarily negotiated. See Konzelman v. Konzelman, 158 N.J.
185, 203 (1999); see also Quinn v. Quinn, 225 N.J. 34, 50 (2016). When a judge
finds that the spouse receiving alimony has cohabited, the obligor spouse is
entitled to full enforcement of the parties' agreement. This case is different, and
turns on the uniquely tailored termination of alimony provision. Plaintiff makes
no allegations of improprieties, fraud, overreaching, or coercion, and each party
was represented by counsel. See Konzelman, 158 N.J. at 199.
Based upon a careful review of the record, the judge pointed out that J.M.
was residing with defendant prior to executing the PSA, and duly rejected
plaintiff's claim that he was unaware that J.M. was residing with defendant
because, "even if he wasn't told, it's clear that it was intended." Therefore,
plaintiff has not established a prima facie case of changed circumstances , and
we find no error. Moreover, the PSA was brought to the attention of the trial
court and given judicial approval when it was incorporated into the divorce
decree.
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There is no indication that the court abused its discretion in giving effect
to the cohabitation and anti-Lepis provisions and by denying plaintiff's
application to terminate his alimony obligation. Similarly, as no issues of
material fact required resolution by the trial court, there was no basis for an
evidentiary hearing. See Adler v. Adler, 229 N.J. Super. 496, 500 (App. Div.
1988) (holding that a hearing is not required, or even warranted, in every
contested proceeding for alimony modification, but only where "necessary to
resolve a genuine issue of material fact . . ."). We agree with the trial court that
a hearing was not required.
III.
Here, the trial court made scant findings of fact and conclusions of law,
and noted in her order that "an explanation was unnecessary," citing Rule 1:6-
2(f). A trial court is required "by an opinion or memorandum decision, either
written or oral, [to] find the facts and state its conclusions of law thereon . . . on
every motion decided by a written order that is applicable as of right . . . ." R.
1:7-4(a).
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***
We do not need to address this issue because it does not change the result,
and we conclude that the trial court did not abuse its discretion in denying
plaintiff's motion.
Plaintiff's remaining arguments lack sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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