L.R. VS. R.R. (FM-03-1196-11, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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-2594-17T3
L.R.,
Plaintiff-Appellant,
v.
R.R.,
Defendant-Respondent.
___________________________
Argued December 11, 2018 – Decided February 5, 2019
Before Judges Suter and Geiger.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Burlington County,
Docket No. FM-03-1196-11.
Michael J. Confusione argued the cause for appellant
(Hegge & Confusione, LLC, attorneys; Michael J.
Confusione, of counsel and on the brief).
David R. Cardamone argued the cause for respondent
(Miller & Gaudio, PC, attorneys; David R. Cardamone,
on the brief).
PER CURIAM
Plaintiff L.R. (Lisa)1 appeals from a December 29, 2017 post-judgment
Family Part order terminating alimony effective June 24, 2015, awarding
defendant R.R. (Richard) attorney's fees in the amount of $8800, and denying
all other requests for relief. We affirm.
The parties were married in March 1992 and divorced in 2013. The dual
final judgment of divorce (FJOD) incorporated the terms of the marital
settlement agreement (MSA) entered into by the parties. Two children were
born of the marriage, R.R. (Ricky), born in 1993, and R.R. (Rebecca), born in
1994. At the time of the divorce, Ricky was emancipated but Rebecca was not.
Richard was fifty-five years old.
The MSA required Richard to pay permanent alimony to Lisa in the
amount of $3499.16 semi-monthly for six months, and thereafter, $2383.33
semi-monthly. Relevant to this appeal, the MSA included the following
additional alimony terms and conditions. Richard's alimony obligation shall
terminate upon the death of either party or Lisa's remarriage. With regard to
applications to modify alimony and cohabitation, the MSA provided:
viii. Applications to review alimony shall be governed
by [Lepis v. Lepis, 83 N.J. 139 (1980)] and/or
1
Pursuant to Rule 1:38-3(d) and to protect their privacy interests and avoid
confusion, we refer to the parties and their children by their initials or first
names. We mean no disrespect by this informality.
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2
applicable statutory or caselaw concerning changed
circumstances. However, it is specifically understood
and agreed as follows:
a. Wife's cohabitation with a family member shall
not constitute a change of circumstance. Wife's
adult daughter from a previous relationship
currently resides with Wife. The vacation of the
Wife's household by this daughter shall not be
considered a change of circumstances warranting
a review of support.
b. Wife's cohabitation with a person unrelated by
blood or marriage as defined by [Garlinger v.
Garlinger, 137 N.J. Super. 56 (App. Div. 1975)]
and [Gayet v. Gayet, 92 N.J. 149 (1983)] for a
period of six months shall be considered a change
of circumstances warranting a review of support
pursuant to Lepis.
Both children were emancipated when the post-judgment motion practice
2
at issue began. A plenary hearing was conducted in 2017 on the issue of
reducing or terminating Richard's alimony obligation. That plenary hearing was
the culmination of two years of motion practice by both parties that started with
Lisa moving to increase alimony and unemancipate their two children and
Richard cross-moving to reduce or terminate alimony due to Lisa's alleged
2
By this point, Ricky was twenty-two years old and Rebecca was less than three
months from her twenty-first birthday.
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3
cohabitation with G.J. (Gary).3 Both parties also sought an award of attorney's
fees. None of those orders have been appealed. We provide the following
summary of the orders leading up to the plenary hearing.
In an August 7, 2015 decision, the trial court found Lisa had made a prima
facie showing of a substantial change in circumstances to warrant a review of
Richard's alimony obligation. The court also found Richard had not
demonstrated conclusively that Lisa was cohabiting with a person unrelated by
blood or marriage. The court ordered a forty-five day period of discovery on
the issues of a modification, termination or suspension of alimony, Rebecca's
unemancipation, and Lisa's cohabitation.
Richard was ordered to pay alimony in accordance with the MSA until a
final ruling was entered. The court ordered Rebecca to sign updated
authorizations for the providers and treatment centers where she had received
treatment from 2013 to the present. Lisa was directed to supply the court with
those records. Lisa's motion to unemancipate Ricky was denied without
prejudice. Because it ordered discovery followed by mediation, the court denied
3
Lisa alleged Rebecca should be unemancipated because she had suffered from
substance abuse and mental health problems from 2011 to the present and was
dependent on Lisa for financial and emotional support.
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the parties' respective requests for a plenary hearing and an award of attorney's
fees without prejudice.
As a result of ongoing discovery issues, on December 11, 2015, the trial
court ordered Lisa to answer the interrogatories propounded by Richard, and
provide all necessary attachments and documentation that were referenced in
her responses, within forty days, to the extent she had failed to do so
responsively. The court denied the remaining relief sought by Richard without
prejudice. The court granted a protective order as to Rebecca's mental health
records and directed counsel to meet within twenty days to review the records.
Because discovery problems continued as a result of Lisa's deficient
document production and failure to comply with the prior discovery order , on
March 11, 2016, the trial court directed the parties to confer and respond to each
other's document lists within twenty days by producing the documents or making
specific objections. The court directed the parties to proceed to mediation and
present any remaining discovery deficiencies to the mediator. All other relief
was denied without prejudice.
On August 12, 2016, the trial ordered Lisa to cure her discovery
deficiencies within fourteen days by responding point by point to the specific
items of discovery still sought by Richard. The court further ordered Lisa to
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provide a full accounting of the inheritance she received from her father 's estate,
including proof on where the inherited funds were deposited. The court also
ordered Lisa to file an updated CIS. Lisa agreed to comply by August 30, 2016.
The trial court warned Lisa that if the discovery was not supplied, her motion
would be dismissed. Her application to require Richard to provide medical
insurance for Ricky was denied because Ricky was not eligible for coverage
under Richard's insurance plan, thereby relieving him of that obligation under
the MSA. Richard was ordered to pay alimony of $800.00 bi-weekly, effective
July 28, 2016, due to his unemployment. Richard's request for attorney's fees
was denied without prejudice.
On August 30, 2016, the trial court issued a supplemental order dismissing
Lisa's original motion to increase alimony without prejudice due to her
continuing failure to provide discovery, and ordering a plenary hearing on
termination or reduction of alimony.
On January 20, 2017, the trial court dismissed Lisa's original motion to
increase alimony with prejudice because she failed to provide requested
discovery pertaining to her father's estate, failed to provide an updated CIS with
all required attachments, and failed to diligently pursue or move to reinstate her
motion to increase alimony. Lisa's request to unemancipate Ricky and Rebecca
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was also denied with prejudice. Lisa's requests to suppress the information and
documentation pertaining to Gary during the plenary hearing was denied without
prejudice. Richard's application to terminate alimony effective June 24, 2015
and to order Lisa to refund any alimony paid after that date was reserved for the
plenary hearing. Lisa was ordered to provide the court with an updated CIS
including all required attachments within thirty days. The court reserved the
issue of attorney's fees pending the outcome of the plenary hearing.
Following a four-day plenary hearing, Judge Guy P. Ryan issued a
December 29, 2017 order and seventy-three page opinion terminating alimony
effective June 24, 2015, the date Richard filed his original motion, with Richard
to receive a credit for all alimony he paid subsequent to that date. The court
awarded Richard attorney's fees in the amount of $8800. All other requests for
relief were dismissed.
In his opinion, Judge Ryan provided a comprehensive review of the
testimony and exhibits regarding cohabitation, and made the following findings
of fact. Lisa purchased her residence (Lisa's residence) in Burlington County
before the FJOD with monies she received from equitable distribution.
Plaintiff's daughter from a prior marriage, Danielle, is a co-owner of the
property.
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Lisa testified Gary was "her best friend now." She started dating Gary at
some time after "he was kicked out of his home" by his now ex-wife. Lisa
estimated she dated Gary for about a year starting in September 2011. However,
she also testified that the dating relationship ended by Christmas 2011. Lisa
testified Gary only resided at her home for about a "week and a half" after he
left his wife in or around April 15, 2011.
When questioned about whether she was dating Gary in February 2013,
Lisa would not provide a direct answer. She admitted Gary had spent nights at
her home since September 2012, but denied Gary was supporting her.
Richard hired licensed private investigator Craig Scheingold to conduct
surveillance of Lisa's residence when he became suspicious of cohabitation.
Scheingold surveilled Lisa's residence from March 1, 2015 through June 1,
2015. His report was admitted into evidence by consent. Scheingold testified
he repeatedly observed a Chevrolet SUV with Maryland license plates and a
Volkswagen sedan belonging to Gary at Lisa's residence. The registration for
the Chevrolet SUV lists the address of the hunting cabin Gary owns in Maryland.
Scheingold testified he observed the vehicles at Lisa's residence during early
mornings and late at night. Photographs depicted the Chevrolet SUV in different
locations on the property indicating it was not simply being stored there. The
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trial court found this evidence to be "consistent with an individual staying at the
home, not merely visiting." The court concluded Scheingold's testimony
established Gary resided at Lisa's residence from mid-March 2015 through June
2015.
Gary was a party in his own divorce case during the pendency of the
plenary hearing. Pleadings prepared by Gary's own attorney and other court
records listed his address as Lisa's residence. The trial court rejected Gary's
testimony that Lisa's address was erroneously used in court records because his
ex-wife gave the court that address, finding this explanation lacked any
credibility.
Two police reports involving Gary from October 2011 and December
2011 recorded Gary's address as Lisa's residence. In addition, a foreclosure
complaint filed against Gary was served on December 4, 2013, by serving Lisa
at Lisa's address. Lisa signed the return of service, writing on the form she was
his "girlfriend." When questioned about the foreclosure complaint, Gary
became angry, confrontational, and non-responsive.
Gary conceded he maintained a post office box in Columbus from April
2011 to October 2015. The trial court found his decision to maintain a post
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9
office box in Columbus for more than four years to be "significant evidence
[Gary] was actually residing in Columbus during that period of time."
Despite repeated requests, Gary flatly refused to produce copies of his
driver's license, passport, or other identification documents to verify his address.
The trial court concluded Gary and Lisa withheld official documents that would
verify Gary's address and drew an adverse inference against them, concluding
their refusal to provide the documents "speaks volumes as to their credibility."
The trial court also found several Facebook posts by Lisa provided a "clear
implication" Gary was residing with Lisa in October 2013. Other Facebook
posts between Lisa and Gary confirmed their romantic relationship and his love
for her children. The trial court found the "depth of emotion in the posts" to be
"clearly inconsistent" with Lisa's claims that she and Gary were "just good
friends" and that their dating relationship ended in 2011.
Verizon Wireless statements sent to Lisa's residence listed three cell
phones and three tablets and both Lisa and Gary as users. Two of the tablets
listed on the statements had Gary's name as the user or owner. During
questioning regarding the bills, the trial court found Lisa "repeatedly changed
her answers during the questioning about this bill. She was evasive and
inconsistent, literally squirming on the witness stand and unable to make eye
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contact with [Richard's] attorney." The trial court concluded "the circumstantial
evidence demonstrates Lisa was sharing these devices with [Gary]."
Lisa and Gary claimed Gary moved to the home of a friend, Robert
Reeves, after the two week period in or around April 2011 that they both
admitted Gary lived with Lisa. Reeves testimony was riddled with
inconsistencies and exhibited lack of personal knowledge. By way of example,
on direct, Reeves claimed he had never known Gary to reside at Lisa's house
during the last five years, or to date her in the last three years. However, on
cross-examination, he admitted he had "no knowledge" as to their dating
relationship. The trial court determined Reeves was a "friend of both [Lisa] and
[Gary] who became caught in the middle of this adversarial matter [and] signed
a certification [that] was not consistent with his actual knowledge." Therefore,
"little weight" was given to his testimony.
Lisa's daughter Danielle testified she had known Gary for approximately
six years, the same period she had lived with her mother. She testified Lisa and
Gary had dated for about seven months in 2012, and had not dated but remained
friends thereafter. She described Gary as the "grandfather" of her children. She
claimed Gary did not contribute to the finances and expenses of Lisa's residence
on a regular basis, but had "lent money" to her mother. Although Danielle
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claimed Gary had not resided with her and her mother at any time in the last
three years, she said he did stay over occasionally and admitted Gary had
received mail at Lisa's residence but no longer does so.
After reviewing the extensive testimony and financial records admitted
into evidence during the lengthy hearing, the trial court concluded the evidence
unquestionably demonstrated Lisa was subsidizing Gary's expenses. With
regard to loans Lisa made to Gary and purchases she made for him, the judge
stated:
Moreover, these supposed "loans" were never
previously disclosed by [Lisa] in discovery despite
specific requests for the same. [Lisa] previously
certified in interrogatory answers that she had made no
loans. Only after [Richard] obtained voluminous bank
records did [Lisa] claim transfers to [Gary] were
"loans." Likewise, credit card statements show the
purchase of a "camper" or "trailer" for $2000. [Lisa]
testified this purchase was for her aunt, but this
purchase was at a time [Lisa] claims she was
supposedly out of money and had to borrow from
[Gary]. When confronted with these obvious
inconsistencies, [Lisa] would repeatedly break down
and cry. In doing so, she delayed answering questions
or feigned uncertainty. Early in her testimony, the
court gave her the benefit of the doubt regarding her
emotional upset since family court matters are often
emotional. However, as her testimony continued, it
became obvious [Lisa] became upset only when
confronted with inconsistencies or unfavorable
documentary evidence. This behavior further
undermined her credibility.
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The court rejects the testimony of [Gary] and
[Lisa] regarding supposed loans by [Gary] to [Lisa].
Instead, the evidence is clear [Lisa] was utilizing her
alimony to subsidize [Gary]. Further, any cash
payments which were deposited into [Lisa's] accounts
show efforts by [Gary] to conceal his income.
Therefore, there is substantial credible evidence of
intertwined finances as well as economic subsidies by
[Lisa] to [Gary]. As [Lisa] had no other significant
source of income besides her alimony, it is clear that
[Richard's] payment of alimony was subsidizing [Gary]
who was concealing his own monies, in whatever
amounts, from his ex-wife or creditors.
While discussing the unexplained deposits into Lisa's accounts, the trial
court stated:
While the exact amounts of economic contribution
received by [Lisa] from other sources is somewhat
confusing, it is clear [Lisa] received substantial sums.
It is possible these sums were from [Gary]. It is also
possible the sums were from other accounts received as
a result of the death of [Lisa's] father, especially
because [Lisa] never fully complied with the order to
produce an accounting. Some of the accounts showed
payable on death designations which passed outside the
estate of her father. It is further possible these sums
were from other sources. However, it is not for this
court to speculate about the source of these funds.
Rather, it cannot be denied that [Lisa] obtained access
to these sizable amounts of cash. [Lisa] has the burden
of proof in this regard to prove lack of financial
entanglement. Instead, she has withheld financial
records and shrouded her economic status in mystery.
Accordingly, there is no other possible conclusion
except that [Lisa] has not demonstrated she remains
economically dependent upon [Richard].
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The judge found Lisa "often failed to answer questions directly during her
testimony," especially during cross-examination. "Her answers were frequently
non-responsive" and "continually evasive when pressed for specifics." When
confronted with adverse evidence, Lisa would resort to "her tired refrain of
confusion coupled with a tearful reaction to questioning."
The judge further noted Lisa's answers to interrogatories failed to list her
inheritance and listed only one of her Wells Fargo accounts. Her answers
denying Gary was at her house late at night or early in the morning were refuted
by the evidence.
The judge concluded Gary's denial of cohabitation lacked any credibility,
finding his testimony to be self-serving and biased in favor of Lisa. Similarly,
he found Danielle's testimony to be colored by her bias in favor of her mother
and against Richard who she clearly disliked. The judge gave her testimony
little weight regarding Gary's living arrangements. The judge also noted it was
"illogical to think that [Gary] could be so close to [Danielle's] children, 'like a
grandfather,' if he merely stayed at [Lisa's] home for a couple of weeks six years
ago, before her son Lucas was even born." Indeed, Gary "testified his
relationship as 'the stand-in grandfather' with Lucas" was ongoing. Guided by
"[c]ommon sense and ordinary human experience" Judge Ryan determined:
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such a bond with a small child would not be developed
by the infrequent contact [Lisa] and [Gary] claim to
have had, particularly because Lucas would not have
been born when [Gary] admittedly lived with [Lisa] in
2011 . . . . It is far more likely Lucas developed this
bond because [Gary] was the person who 'lived' with
his grandmother, not simply because [Gary] was a
"friend" of his grandmother, especially because Lucas
lives in his grandmother's house, rather than visits
occasionally when [Gary] is there.
Judge Ryan concluded the testimony "demonstrate[d] a close personal
bond between [Lisa] and [Gary], akin to a marriage or, at least, a long-standing
committed relationship, not a fleeting romance which ended in 2011."
Although Lisa and Gary do not share any bank accounts, the judge noted
Gary was "hostile and abrasive" and "flatly refused to provide any response" to
questions regarding intertwined finances.
Richard introduced credit card statements showing Lisa paid for a
significant amount of travel by Gary, including flights to Palm Beach in 2012,
and Dallas, Atlanta, Fort Lauderdale, and Charlotte in 2014. Lisa and Gary took
a vacation to Lake George, New York in September 2013 that was charged to
her credit card. Lisa's credit card statements also show charges in Houston while
Lisa and Gary were visiting her sick uncle. When questioned about a debit card
purchase in Nashville in February 2014, Lisa claimed it was her daughter but
later admitted she and Gary had traveled to Nashville.
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Lisa and Gary also traveled to Nashville to attend the Country Music
Awards in November 2015. Lisa paid for the trip, including $3286 for tickets
and $1615 in hotel costs. Lisa first stated they never went on the trip because
she cancelled. She then stated the charges were for Rebecca. Lisa then claimed
she was paid back either for cancelling or by her daughter. The trial court found
there was no credible proof of any cancellation or refund.
The trial court concluded the evidence showed significant purchases for
Gary on Lisa's credit cards, including travel, lodging, and meals. Gary admitted
using Lisa's credit card on his trip to Florida. The credit card statements
confirmed that he did. Lisa testified, without factual support, that Gary "usually
paid [her] back," for the travel costs. The judge found it "unreasonable to
assume [Lisa] continued to make these large purchases for [Gary] well into
2015, when their dating relationship allegedly ended in 2011."
Gary has a cabin in Maryland. Richard introduced statements showing
various expenditures in Maryland on Lisa's credit cards. At first, Lisa testified
she did not know if Gary had a credit card but later said she allowed him to use
her credit card because he did not have one. Gary used Lisa's credit card for the
purchases in Maryland and a $400 ATM withdrawal in Delaware. Lisa denied
being with him when he used her card. She first claimed Gary did not have
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possession of her card but later admitted the charges show he had the card. The
judge concluded Gary either had possession of Lisa's credit card and "free reign
to use it," or Lisa "was physically with him, contrary to her denials."
Richard introduced evidence Lisa had purchased an all-terrain vehicle
referred to as a "quad." Lisa claimed to have purchased it for Ricky, however,
it was titled in Gary's name. Lisa testified she received a loan from Gary, which
she likened to a car loan and claimed to have repaid, yet she denied any loans in
her interrogatory answers. Judge Ryan found that explanation "illogical" since
there would be no reason to "pay him back" if the quad was purchased for Gary
and titled in his name.
Lisa and Gary testified they each loaned the other money. Lisa testified
she loaned Gary money because he needed it to pay his property taxes and for
his house. Gary admitted Lisa lent him $9000 for his house after he was injured.
Lisa admitted she loaned Gary money for other things such as vehicle repairs.
Despite his lack of accounts or apparent assets, Gary testified he lent money to
Lisa but could not recall the specific amounts. They testified Gary had loaned
Lisa money multiple times over the years, including $2500 to $3000 for college
costs for one of her children. They both claimed to have paid the other back.
The judge found this testimony was "simply not credible" given Gary's apparent
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dire financial straits, including a foreclosure complaint. Moreover, Lisa
supposedly obtained these loans from Gary who supposedly had no bank
accounts, at a time when Lisa had over $650,000 on deposit in brokerage
accounts. She also transferred $100,000 into her bank account to install an in-
ground pool and $50,000 into her savings account, and paid off over $9000 in
credit card debt at the same time she was supposedly borrowing money from
Gary for the college costs of one of the children. Bank records showed she wrote
a check to Gary in September 2014 for $1500 and another in October 2014 for
$1600, allegedly in repayment of loans, at a time when she had at least $15,000
on deposit in her checking account and had received a large equitable
distribution payout.
Judge Ryan concluded it was "illogical" that Lisa would need to borrow
any money from Gary, especially such small amounts when she had so much
cash on hand and large sums on deposit in brokerage accounts. The judge found
it "far more likely" Lisa was subsidizing Gary's income "and attempting to
disguise the same as repayment of loan amounts to him."
Richard introduced other exhibits showing numerous payments from Lisa
to or on behalf of Gary, including a $3000 payment in August 2012 to the
attorney representing Gary in his divorce action, and an October 2013 payment
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to Gary's labor union. While Lisa claimed one of the checks was to repay a loan
Gary made to her to construct her pool, she testified she withdrew $100,000
from her brokerage accounts to install the pool.
Richard also introduced subpoenaed bank records that showed significant
unaccounted for deposits into Lisa's accounts. Lisa failed to provide an
accounting of her inheritance from her father's estate, producing instead a
cryptic letter claiming she received $80,000 in distributions between February
2013 and January 2017. Credit card statements revealed payments totaling
$18,510 on Lisa's credit card accounts made from sources not traceable to Lisa's
accounts, and for which she "was unable to offer any reasonable explanations."
Lisa had "only a vague recollection" of her withdrawals from rolled-over
retirement accounts, despite some of the withdrawals being at or near $100,000.
In October 2014, Lisa received a reimbursement check of over $72,000 from her
health insurer despite previously denying receiving any reimbursements.
Taking into account unaccounted for deposits totaling $145,603 from Investors
Bank and $93,701.67 from Wells Fargo, the judge concluded "the evidence
showed over $239,000 in unaccounted for deposits during a three year period"
when Lisa had no earned income.
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The judge concluded Lisa had "received significant funds from another
source or sources, other than her alimony, prior child support, or inheritance."
Given Lisa's "access to these sizable amounts of cash" the judge determined Lisa
had not demonstrated she remains economically dependent upon Richard.
As to sharing of household chores, the judge noted the evidence was
limited because Richard did not have access to that information while Lisa and
Gary "possessed all of the information regarding performance of household
chores." The judge "decline[d] to blindly accept their denials of sharing chores."
Based on the testimonial and documentary evidence, the trial court
concluded:
1. [Lisa] and [Gary] began cohabitating in April 2011,
before the FJOD. Their cohabitation continued for a
substantial period of time.
2. [Lisa] and [Gary] intertwined their finances, shared
household chores, vacationed together, held themselves
out to family members and friends as a committed
couple, and created a family unit with [Lisa's] children.
3. The relationship between [Lisa] and [Gary]
constitutes a long-standing, committed personal
relationship tantamount to a marriage.
4. Evidence of cohabitation continues to the present
day as [Lisa] has failed to establish [Gary] has a
legitimate residence anywhere else besides [Lisa's
residence].
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5. [Lisa] provided substantial economic subsidies to
[Gary] ranging from household expenses, legal fees,
travel costs, vehicle repairs, union dues, property taxes,
mortgage fees and numerous other costs, all while
receiving alimony from [Richard].
6. During the same period of time as she was
subsidizing the lifestyle of [Gary], [Lisa] received large
sums of unaccounted for cash, the sources of which
[Lisa] could not or would not explain.
7. [Lisa's] long-standing, committed relationship with
[Gary] has supplanted the former marital life style
which defendant's alimony payments were intended to
maintain. In essence, [Lisa] has created a new life with
[Gary] which has moved her beyond the need for
alimony from her former husband.
The court terminated alimony retroactive to June 24, 2015, the date
Richard filed his original motion. While "mindful" the MSA's cohabitation
provision declares cohabitation is a change of circumstances warranting review
under Lepis, the court stated Lisa had "obscured her true financial picture to the
point where it is not possible to determine any economic dependency."
The trial court then engaged in the following analysis of Richard's
application for an award of attorney's fees. Richard was forced to engage in
"herculean efforts" to obtain financial records to establish the intertwined
finances because Lisa "stonewalled" reasonable discovery requests, including
filing multiple motions and serving subpoenas on third-parties to obtain the
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discovery he was entitled to directly from Lisa. Richard's position was
reasonable while Lisa's "continued evasiveness was unreasonable." The results
obtained warranted some fee-shifting. Neither party has previously been
awarded fees or costs. Lisa's conduct, including obstructive discovery tactics
and belated production of records warranted an award of partial fees.
Richard was awarded $8800 in fees, representing thirty-two hours of trial
time at $275 per hour, which the court found reasonable in Burlington County
for an attorney admitted to practice in 2010. The court noted Richard's attorney
"expended far greater billable hours in discovery, preparation and travel." Thus,
the amount awarded "likely represents a fraction of the total fees and costs
incurred."
This appeal followed. Lisa argues 1) the Family court's decision to
terminate alimony based on its finding of cohabitation was error and 2) if the
Family court's decision to terminate alimony is reversed, then the award of
attorney's fees to defendant should be vacated as well.
Substantial credible evidence in the record supports the judge's factual
findings and credibility determinations. We affirm substantially for the reasons
given by Judge Guy P. Ryan in his extensive seventy-three page written opinion.
We add the following comments.
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We reject Lisa's arguments that the judge applied the wrong legal
standards, misapplied the burden of proof, or erred in ruling Richard
demonstrated cohabitation for a period of six months as required by the MSA to
establish a change of circumstances warranting review of alimony.
"The scope of appellate review of a trial court's fact-finding function is
limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). A trial court's findings
"are binding on appeal when supported by adequate, substantial, credible
evidence." Id. at 411–12 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of
Am., 65 N.J. 474, 484 (1974)). "Accordingly, our review of the trial judge's
discretionary termination of alimony is limited to whether the court made
findings inconsistent with the evidence or unsupported by the record, or erred
as a matter of law." Reese v. Wells, 430 N.J. Super. 552, 572 (App. Div. 2013)
(citing Gordon v. Rozenwald, 380 N.J. Super. 55, 76 (App. Div. 2005)). As
such, we will not disturb an alimony award unless we find the "determination
could not reasonably have been reached on sufficient credible evidence present
in the record after considering all of the proofs as a whole." Gonzalez–Posse v.
Ricciardulli, 410 N.J. Super. 340, 354 (App. Div. 2009) (citing Rolnick v.
Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993)).
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Agreements to terminate or modify alimony "upon the cohabitation of the
recipient spouse are enforceable so long as the relationship constitutes
cohabitation and 'the cohabitation provision of the [MSA] was voluntary,
knowing and consensual.'" Quinn v. Quinn, 225 N.J. 34, 50 (2016) (quoting
Konzelman v. Konzelman, 158 N.J. 185, 203 (1999)).
A finding of cohabitation requires more than the involvement of the
dependent spouse in an intimate relationship. Konzelman, 158 N.J. at 202. It
also "requires more than a common residence, although that is an important
factor." Ibid. Instead, cohabitation "is based on those factors that make the
relationship close and enduring." Ibid. "Cohabitation involves an intimate
relationship in which the couple has undertaken duties and privileges that are
commonly associated with marriage[,]" such as "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. Stated another way, a couple is cohabitating when their
"relationship 'bears the generic character of a family unit as a relatively
permanent household[.]'" Reese, 430 N.J. Super. at 570 (quoting Gayet v. Gayet,
92 N.J. 149, 155 (1983)).
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The supporting spouse bears the burden of proving "cohabitation to the
satisfaction of the court." Konzelman, 158 N.J. at 202. However, once the
supporting spouse makes such a showing, "a rebuttable presumption of changed
circumstances [arises, which] shift[s] the burden 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 (App. Div. 1998). "Consequently,
when faced with the circumstance of cohabitation of a dependent spouse, the
court must focus on the economic relationship of the cohabitants to discern
whether one cohabitant 'subsidizes the other[.]'" Reese, 430 N.J. Super. at 571
(alteration in original) (quoting Boardman v. Boardman, 314 N.J. Super. 340,
347 (App. Div. 1998)).
"[T]o rebut the presumption that the living arrangement is tantamount to
marriage and has reduced or ended the need for alimony, a dependent spo use
must prove he or she remains dependent on the former spouse's support." Ibid.
(citing Gayet, 92 N.J. at 154-55). "Modification of alimony is warranted when
either the cohabitant contributes to the dependent spouse's support or lives with
the dependent spouse without contributing." Ibid. (citing Garlinger v. Garlinger,
137 N.J. Super. 56, 64 (App. Div. 1975)). "When a dependent spouse
economically benefits from cohabitation, his or her support payments may be
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reduced or terminated." Ibid. (citing Gayet, 92 N.J. at 155). When the
dependent spouse's alimony payments are being used to subsidize the
cohabitant's lifestyle, the dependent spouse's support payments may also be
reduced or terminated. Quinn, 225 N.J. at 49.
Governed by these principles, we are satisfied there is sufficient credible
evidence to support the trial court's determination that termination of alimony
was warranted based on Lisa's cohabitation with Gary for well more than six
months and their economic relationship. The judge properly concluded the
burden-shifting presumption applied, shifting the burden to show the lack of an
economic benefit from cohabitation to the dependent spouse, because Richard
"has no contact with his adult children and therefore has no access to firsthand
information as to the living arrangements in his ex-wife's home." The record
demonstrates Lisa "obscured her true financial picture to the point where it [was]
not possible to determine any economic dependency." The judge also properly
concluded Lisa "completely failed to satisfy her burden to show either a lack of
financial entanglement or that she remains economically dependent."
Judge Ryan engaged in extensive fact finding and credibility
determinations. His factual findings and legal conclusions are supported by
adequate, substantial, credible evidence. Lisa's testimony, and that of her
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witnesses, was riddled with internal inconsistencies, contradictions, statements
refuted by documentary evidence, and bias. It was neither credible nor reliable.
We find no basis to disturb Judge Ryan's findings or conclusions.
We review a decision to retroactively modify alimony for abuse of
discretion. Reese, 430 N.J. Super. at 584. Applying this standard, we find no
abuse here by the Family Court judge. A modification of alimony may be made
retroactive to the date of cohabitation. Calcaterra v. Calcaterra, 206 N.J. Super.
398, 404 (App. Div. 1986). Here, the court terminated alimony as of the date
Richard filed his original motion, rather than the date cohabitation began.
We next address Lisa's challenge to the attorney's fees awarded to
Richard. Lisa's argument, in full, as to the fee award, states:
If the Court reverses the order terminating
defendant's alimony obligation, then the family court's
award of attorneys' fees to defendant for bringing the
motion to terminate alimony should also be vacated as
an abuse of the family court's discretion, as the main
reason for granting the attorneys' fees to defendant –
that the motion had merit and was successful – would
now be absent.
In light of our decision to affirm the termination of alimony, and the well
settled principle that any "issue not briefed on appeal is deemed waived," we
decline to address the issue of attorney's fees further "on this record as it is void
of any information" necessary to attempt a meaningful review of the fee award.
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See Woodlands Cmty. Ass'n v. Mitchell, 450 N.J. Super. 310, 318-19 (App. Div.
2017) ("An issue not briefed on appeal is deemed waived." (quoting Sklodowsky
v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011))). See also Cmty Hosp. v.
Blume Goldfaden, 381 N.J. Super. 119, 127 (App. Div. 2005) ("Nor are we
obliged to attempt review of an issue when the relevant portions of the record
are not included." (citing Soc'y. Hill Condo. Ass'n v. Soc'y. Hill Assocs., 347
N.J. Super. 163, 177-78 (App. Div. 2002))); R. 2:6-1(a)(1)(C).
We conclude Lisa's remaining arguments lack sufficient merit to warrant
any further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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