PATRICIA CLEMAS VS. JOSEPH CLEMAS (FM-18-0370-12, SOMERSET COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-5029-18
PATRICIA CLEMAS,
Plaintiff-Respondent,
v.
JOSEPH CLEMAS,
Defendant-Appellant.
_______________________
Submitted February 1, 2021 – Decided March 22, 2021
Before Judges Hoffman and Suter.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County,
Docket No. FM-18-0370-12.
Gary A. Blaustein, attorney for appellant.
DeTommaso Law Group, LLC, attorneys for
respondent (John J. Hays II, on the brief).
PER CURIAM
Defendant appeals from the May 31, 2019 Family Part order denying his
motion to terminate his obligation to pay alimony to plaintiff. Defendant alleges
he provided sufficient evidence of plaintiff's cohabitation to warrant further
discovery and a plenary hearing. We affirm.
I.
The parties divorced in January 2013, after fourteen years of marriage.
They had two children together. The trial court entered a final judgment of
divorce in June 2014. Pursuant to the final judgment, defendant pays plaintiff
$2,500 per month in alimony.
Defendant filed an initial motion to terminate alimony in late January
2019, alleging plaintiff cohabitated with "her significant other," M.M.,1 based
upon their "long-standing significant relationship of at least [seven] years."
Defendant withdrew the motion for the parties to attend mediation, which
proved unsuccessful. In April 2019, defendant re-filed the motion, including a
request for a plenary hearing.
In support of his motion, defendant provided a certification detailing the
relationship between plaintiff and M.M. According to defendant, they "travel
together, they vacation together with our kids, [they] spend weekends together,"
and "our kids spend holidays" with M.M. and "[his] family at his residence."
Defendant also hired a private investigator, whose report details two instances
1
We refer to M.M. by his initials to protect his privacy.
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of M.M. visiting plaintiff's home and five photographs of plaintiff and M.M.
together on Facebook.
On May 31, 2019, the motion judge denied defendant's application in its
entirety. In a written decision, the judge evaluated the factors set forth in
N.J.S.A. 2A:34-23 and found defendant failed to provide sufficient evidence to
establish a prima facie case of cohabitation. The judge specifically found no
evidence of plaintiff and M.M. having intertwined finances, having joint
responsibility for living expenses, living together, or exchanging any
enforceable promise of support. Moreover, she found defendant's proofs do "not
indicate that the couple's social circle view[s] their relationship in a way
'commonly associated with marriage.'" In addition, the judge noted that
defendant provided only "very limited information regarding the sharing of
household chores – [p]laintiff utilizing [M.M.'s] car on one occasion and taking
his dog out for him on one occasion." Based on these proofs, the judge found
that defendant failed to provide "sufficient evidence to justify the [c]ourt
ordering a plenary hearing on the issue of cohabitation."
II.
We review a decision to modify alimony under an abuse of discretion
standard. Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006). The trial
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judge has "broad discretion" in reviewing an application to modify alimony.
Storey v. Storey, 373 N.J. Super. 464, 470 (App. Div. 2004) (citing N.J.S.A.
2A:34-23). "Whether an alimony obligation should be modified based upon a
claim of changed circumstances rests within the Family Part judge's sound
discretion." Larbig, 384 N.J. Super. at 21 (citing Innes v. Innes, 117 N.J. 496,
504 (1990)).
Cohabitation by the supported spouse is a changed circumstance that
could justify modification of alimony. Gayet v. Gayet, 92 N.J. 149, 155 (1983).
"Cohabitation involves a mutually supportive, intimate personal relationship in
which a couple has undertaken duties and privileges that are commonly
associated with marriage or civil union but does not necessarily maintain a
single common household." N.J.S.A. 2A:34-23(n). Courts "may not find an
absence of cohabitation solely on grounds that the couple does not live together
on a full-time basis." Ibid. Instead, courts "shall consider" the following factors
"[w]hen assessing whether cohabitation is occurring":
(1) Intertwined finances such as joint bank accounts
and other joint holdings or liabilities;
(2) Sharing or joint responsibility for living expenses;
(3) Recognition of the relationship in the couple's social
and family circle;
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(4) Living together, the frequency of contact, the
duration of the relationship, and other indicia of a
mutually supportive intimate personal relationship;
(5) Sharing household chores;
(6) Whether the recipient of alimony has received an
enforceable promise of support from another person
. . . ; and
(7) All other relevant evidence.
[Ibid.]
Cohabitation requires "stability, permanency and mutual
interdependence." Konzelman v. Konzelman, 158 N.J. 185, 202 (1999). The
court must determine whether the relationship "bears the 'generic character of a
family unit as a relatively permanent household.'" Gayet, 92 N.J. at 155 (citing
State v. Baker, 81 N.J. 99, 108 (1979)). "A mere romantic, casual or social
relationship is not sufficient to justify the enforcement of a settlement agreement
provision terminating alimony." Konzelman, 158 N.J. at 202.
The party seeking modification of alimony bears the burden of
establishing "[a] prima facie showing of changed circumstances . . . before a
court will order discovery of an ex-spouse's financial status" and a plenary
hearing. Lepis v. Lepis, 83 N.J. 139, 157, 159 (1980). The moving party "must
clearly demonstrate the existence of a genuine issue as to a material fact before
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a hearing is necessary." Id. at 159 (citing Shaw v. Shaw, 138 N.J. Super. 436,
440 (App. Div. 1976)). "In determining whether a material fact is in dispute, a
court should rely on the supporting documents and affidavits of the parties.
Conclusory allegations would, of course, be disregarded." Ibid.Defendant concedes he did not provide evidence that plaintiff and M.M.
live together or intermingled their finances; however, he maintains that the trial
judge placed too much weight on those factors and that he nonetheless provided
sufficient evidence to establish a prima facie case of cohabitation.
In support of his argument that plaintiff cohabitates with M.M., defendant
first provides a certification detailing plaintiff and M.M.'s relationship. He
certifies plaintiff and M.M. have been in a "long-standing significant
relationship of at least 7 years" and "openly acknowledge their significant
relationship and are seen to be a committed couple by their friends and peers."
He certifies plaintiff and M.M. "travel together, they vacation together with [the
parties'] kids, spend weekends together," and do so with the parties' kids. In
addition, he specifically certifies that plaintiff has driven M.M.’s car on at least
one occasion and watched his dog on another.
Next, the private investigator's September 28, 2018 report provides four
pictures of plaintiff and M.M. together and one picture of plaintiff with M.M .'s
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granddaughter. M.M. posted the pictures on his Facebook account between
October 2016 and July 2017. The report also indicates two photographed
instances, one in January 2018 and one in July 2018, of M.M. arriving at and
leaving plaintiff's home.
Lastly, defendant provides two additional notable pieces of evidence.
First, defendant provides copies of the deeds to M.M.'s house in Galloway and
plaintiff's house in nearby Egg Harbor Township. After the parties' divorce,
plaintiff moved from Bridgewater to Egg Harbor Township, which defendant
asserts was motivated by plaintiff's desire to be closer to M.M. Second,
defendant provides screenshots of dozens of text message from the parties'
children to defendant over several years, wherein the children state that they are
with plaintiff and M.M. or at M.M.'s house.
Considering the limited proofs presented by defendant, we see no reason
to disturb the motion judge's finding that defendant failed to establish a prima
facie case of cohabitation. To prevail, defendant needed to provide evidence
that plaintiff and M.M. have "undertaken duties and privileges that are
commonly associated with marriage," including "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
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circle." Konzelman, 158 N.J. at 202. As the motion judge noted, defendant
provided no evidence of intertwined finances, shared living expenses, living
together, or an enforceable promise of support. Defendant relied on limited
evidence of plaintiff and M.M., over several years of dating, somewhat
frequently seeing and traveling with one another and their families, sharing four
to five pictures on Facebook holding themselves out publicly as a couple, and
two instances of sharing responsibilities. This is simply not enough to establish
a prima facie case of cohabitation. As noted by our Supreme Court,
We do not today suggest that a romantic relationship
between an alimony recipient and another,
characterized by regular meetings, participation in
mutually appreciated activities, and some overnight
stays in the home of one or the other, rises to the level
of cohabitation. We agree that this level of control over
a former spouse would be unwarranted.
[Quinn v. Quinn, 225 N.J. 34, 54 (2016).]
Affirmed.
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