Gary Poller v. Susana Poller ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-0251-22
GARY POLLER,
Plaintiff-Appellant/
Cross-Respondent,
v.
SUSANA POLLER,
Defendant-Respondent/
Cross-Appellant.
___________________________
Submitted January 30, 2024 – Decided April 2, 2024
Before Judges Enright and Paganelli.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-0655-20.
Mandelbaum Barrett, PC, attorneys for appellant/cross-
respondent (Lynne Strober and Rebecca Emily Frino,
on the briefs).
Moskowitz Law Group, LLC, attorneys for
respondent/cross-appellant (Eilish M. McLoughlin and
Daniel Pelic, on the brief).
PER CURIAM
In this post-judgment matrimonial matter, plaintiff Gary Poller appeals
from an August 19, 2022 order denying his motion to terminate his alimony
obligation to defendant Susana Poller.1 Susana opposes the appeal and cross-
appeals from that part of the order denying her request for attorney's fees and
costs. We find no abuse of discretion, and affirm substantially for the reasons
articulated by Judge Magali M. Francois in her comprehensive oral opinion.
We glean the relevant facts from the motion record. The parties married
on April 10, 2010. In September 2019 Gary filed for divorce. The parties
entered into a Marital Settlement Agreement (MSA) on April 8, 2021, which
was incorporated into a Judgment of Divorce (JOD) entered on April 23, 2021.
The MSA provides that Gary is required to pay Susana $200,000 per year
in alimony for five years. The MSA further provides "[i]f [Susana] undertakes
cohabitation with another person in a relationship which is tantamount to
marriage, [Gary] may make an application to terminate or suspend alimony,
consistent with the New Jersey statute and case law. Cohabitation shall be
defined by New Jersey law at that time."
1
Since the parties share a common last name, we refer to them by their first
names. We intend no disrespect.
A-0251-22
2
Gary filed a motion to terminate alimony or, in the alternative, sought
discovery on the issue; he also moved for Susana to pay his attorney's fees.
Susana opposed his motion and cross-moved for Gary to pay her attorney's fees.
The judge determined Gary failed to establish Susana's cohabitation, and
failed to make a prima facie showing of cohabitation sufficient to warrant
discovery. In addition, she found that neither party was responsible to pay the
other's attorney's fees.
In addressing the issue of cohabitation, the judge noted Susana had a
"dating relationship—a boyfriend." Considering the facts under N.J.S.A.
2A:34-23(n), the judge concluded the dating relationship fell short of
cohabitation because Susana and her boyfriend were "not relying on each other
as married people." She found: (1) they had no joint bank account; (2) their
monetary transfers were "de minimis"; (3) there was no evidence of their sharing
payment of bills; (4) they enjoyed no vacations together; (5) they did not spend
Susana's birthday together; (6) no evidence of shared overnights; (7) no evidence
of Susana being in the boyfriend's apartment; (8) no financial reliance between
them; (9) the boyfriend's clearing of snow, one time, at her home did not amount
to him participating in household chores; (10) the boyfriend was not taking care
of Susana's property, her home or her children; (11) Susana and her boyfriend
A-0251-22
3
did not comingle funds; and (12) their relationship ended. Therefore, the judge
denied Gary's motion, finding his proofs of Susana's dating relationship fell
short of a prima facie showing of cohabitation.
In addition, the judge denied, as relevant here, Susana's request for
attorney's fees. The judge applied the factors set forth in Rule 5:3-5(c) and
found: (1) the parties were in a financial position to pay their own attorney's
fees; (2) Gary did not file the motion in bad faith; and (3) no fees were previously
assessed in the matter. Also, the judge considered the "result obtained" and that
the amount of fees was "reasonable." The judge concluded Susana should pay
her own attorney's fees. On appeal, Gary contends the judge "failed to properly
address and weigh the entirety of the statutory factors." He argues since Susana
"never provided any bills or a financial disclosure," the judge erred in finding
no bills were shared; there were no joint accounts; and there was no financial
"intertwinement." Further, he asserts Susana's domestic violence final
restraining order against him should have been considered by the judge because
it "wholly precluded" his investigation into her cohabitation, except through the
use of a private detective.
Moreover, Gary asserts he offered ample proof of cohabitation under the
pertinent statutory factors. He argues: (1) he demonstrated financial transfers
A-0251-22
4
and, thereby, satisfied one or two of the statutory factors; (2) he saw Susana's
boyfriend in court during the parties' domestic violence matter; (3) friends and
family saw Susana and her boyfriend together; (4) on social media, Susana and
her boyfriend identified themselves as being in a relationship, and posted
pictures individually, as a couple, and of the other's children; (5) Susana and her
boyfriend had daily contact and spent holidays together; (6) her boyfriend: (i)
hung Christmas lights on the roof of Susana's home; (ii) spent "significant time"
at Susana's residence when she was not at home; (iii) drove Susana's vehicle and
transported the parties' daughter; and (iv) brought shopping bags and flowers to
the home.
Gary argues the judge "assigned a vague, ill-defined burden to [his]
application" that went "well beyond that envisioned by the prima facie standard"
and he was not required to "make a prima facie showing as to each statutory
factor identified in N.J.S.A. 2A:34-23(n)," citing Temple v. Temple, 468 N.J.
Super. 362 (App. Div. 2021). Moreover, he argues he should have been given
the benefit of all reasonable inferences that could have been drawn from the
evidence, again citing Temple.
Further, Gary argues the parties' conflicting certifications created genuine
issues of material facts that should have been resolved by way of a plenary
A-0251-22
5
hearing. Therefore, he requests the judge's order be reversed and this matter be
remanded for discovery and a plenary hearing.
Susana counters the judge considered the statutory factors and "correctly
concluded that [Gary] had not presented evidence sufficient to make a prima
facie case of cohabitation." Moreover, she asserts there was "no dispute as to
material facts which would [have] necessitate[d] a plenary hearing."
Additionally, Susana contends the judge erred in denying the payment of
her attorney's fees. She argues the judge "erroneously placed most weight on
the parties' ability to pay." While recognizing she receives income from alimony
at the rate of $200,000 per year, she notes these payments are only for five years,
"a limited duration"; and Gary "was in a far better financial position to pay fees"
than she was.
Moreover, Susana contends the judge erred in finding Gary's motion was
not filed in bad faith. She argues that only months after the divorce was
finalized, he was checking her Facebook posts. Further, he set up surveillance
to watch her residence twenty-four hours per day, seven days a week for four
months. In addition, he had access to her bank records from the entry of the
JOD until the filing of the motion.
A-0251-22
6
Finally, Susana argues the judge erred in not considering she was awarded
fees in connection with the domestic violence trial granting a final restraining
order against Gary.
Gary argues the judge did not abuse her discretion in denying Susana's
application for attorney's fees and the decision should remain undisturbed. He
notes the judge specifically relied upon Rule 5:3-5(c), and made findings of fact
and conclusions of law which adequately justified her decision.
Our review of a Family Part order is limited. See Cesare v. Cesare, 154
N.J. 394, 411 (1998). "Appellate courts accord particular deference to the
Family Part because of its 'special jurisdiction and expertise' in family matters."
Harte v. Hand, 433 N.J. Super. 457, 461 (App. Div. 2013) (quoting Cesare, 154
N.J. at 413). "Only when the trial court's conclusions are so 'clearly mistaken'
or 'wide of the mark' should we interfere . . . ." Gnall v. Gnall, 222 N.J. 414,
428 (2015) (quoting N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104
(2008)). An appellate court will reverse only where it finds the trial judge
clearly abused his or her discretion, "such as when the stated 'findings were
mistaken[,] . . . the determination could not reasonably have been reached on
credible sufficient evidence present in the record[,]' or the judge 'failed to
consider all of the controlling legal principles[.]'" Clark v. Clark, 429 N.J.
A-0251-22
7
Super. 61, 72 (App. Div. 2012) (alterations in original) (quoting Gonzalez-Posse
v. Ricciardulli, 410 N.J. Super. 340, 354 (App. Div. 2009)). However, "all legal
issues are reviewed de novo." Ricci v. Ricci, 448 N.J. Super. 546, 565 (App.
Div. 2017) (citing Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)).
Here, the parties' MSA provides "[i]f [Susana] undertakes cohabitation
with another person in a relationship which is tantamount to marriage, [Gary]
may make an application to terminate or suspend alimony, consistent with the
New Jersey statute and case law. Cohabitation shall be defined by New Jersey
law at that time." Under N.J.S.A. 2A:34-23(n):
Alimony may be suspended or terminated if the payee
cohabits with another person. 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.
When assessing whether cohabitation is occurring, the
court shall consider the following:
(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;
A-0251-22
8
(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
within the meaning of subsection h. of [N.J.S.A.] 25:1-
5; and
(7) All other relevant evidence.
The New Jersey Supreme Court recently provided a framework for our
consideration of cohabitation issues in Cardali v. Cardali, 255 N.J. 85 (2023).
There, the Court held:
We do not view . . . N.J.S.A. 2A:34-23(n) . . . to require
evidence of a financial relationship between the spouse
or civil union partner receiving alimony and the other
person as a prerequisite to discovery; as a practical
matter, such a showing may be impossible without
discovery. Accordingly, we hold that a movant need
not present evidence on all of the cohabitation factors
in order to make a prima facie showing. If the movant's
certification addresses some of the relevant factors and
is supported by competent evidence, and if that
evidence would warrant a finding of cohabitation if
unrebutted, the trial court should find that the movant
has presented prima facie evidence of cohabitation.
If the movant presents such prima facie evidence, the
court should grant limited discovery tailored to the
issues contested in the motion, subject to any protective
order necessary to safeguard confidential information.
If material facts remain in dispute after discovery and
A-0251-22
9
the filing of supplemental certifications, the court must
conduct a plenary hearing before deciding the motion
to terminate or suspend alimony.
[Id. at 94-95.]
We have "reject[ed] the argument that evidence of all the[] circumstances
must be presented for a movant to establish a prima facie case of cohabitation."
Temple, 468 N.J. Super. at 370. Additionally, "[t]he statute contains a seventh
item, which allows a court's consideration of '[a]ll other relevant evidence,'
N.J.S.A. 2A:34-23(n)(7), thereby demonstrating the statute does not contain the
alpha and omega of what ultimately persuade a court that a support spouse is
cohabiting." Ibid. (second alteration in original).
"It is enough that the movant present evidence from which a trier of fact
could conclude the supported spouse and another are in 'a mutually supportive,
intimate personal relationship' in which they have 'undertaken duties and
privileges that are commonly associated with marriage or civil union. '" Id. at
371. (quoting N.J.S.A. 2A:34-23(n)).
Governed by these standards, we are convinced the judge undertook the
appropriate analysis of Gary's allegation concerning Susana's cohabitation. The
judge's decision analyzed the facts; applied the factors outlined under N.J.S.A.
A-0251-22
10
2A:34-23(n); and gave due consideration to the burdens established by Cardali
and Temple. Thus, we discern no abuse of discretion.
Gary contends Susana's failure to "produce bills or make a financial
disclosure" should have precluded the judge from finding no bills were shared;
there were no joint accounts; and no financial "intertwinement" existed.
However, this contention misses the mark in two respects. First, Susana had no
obligation to produce her financial information until Gary established a prima
facie showing of cohabitation. Only after a movant "presents such prima facie
evidence, should the court grant limited discovery." Cardali, 255 N.J. at 95.
Second, the judge appropriately performed her judicial function by considering
the facts presented and analyzing those facts under the factors provided by
N.J.S.A. 2A:34-23(n).
Gary also contends the judge should have considered Susana's domestic
violence restraining order against him because the order "wholly precluded" his
investigation into her cohabitation, except through the use of a private detective.
Again, this contention misses the mark. Gary bears no lesser burden in
establishing a prima facie case of cohabitation merely because he is bound by a
domestic violence restraining order.
A-0251-22
11
In short, we agree with Judge Francois that Gary failed to establish a prima
facie case that Susana was cohabitating with her boyfriend. As the judge noted,
Susana is permitted to have a dating relationship. Gary failed to establish prima
facie that Susana's dating relationship rose to the level of "a mutually supportive,
intimate personal relationship in which [she and her boyfriend] ha[d] undertaken
duties and privileges that are commonly associated with marriage" as required
by N.J.S.A. 2A:34-23(n).
As to Susana's cross-appeal and her request that Gary should have been
ordered to pay her attorney's fees, we note Rule 4:42-9(a)(1) provides "[i]n a
family action, a fee allowance both pendente lite and on final determination may
be made pursuant to R[ule] 5:3-5(c)." Courts should consider the following
factors:
(1) the financial circumstances of the parties;
(2) the ability of the parties to pay their own fees or to
contribute to the fees of the other party;
(3) the reasonableness and good faith of the positions
advanced by the parties both during and prior to trial;
(4) the extent of the fees incurred by both parties;
(5) any fees previously awarded;
(6) the amount of fees previously paid to counsel by
each party;
A-0251-22
12
(7) the results obtained;
(8) the degree to which fees were incurred to enforce
existing orders or to compel discovery; and
(9) any other factor bearing on the fairness of an award.
[R. 5:3-5(c).]
Here, Susana argues the judge erred by placing too much weight on the
parties' ability to pay. We disagree, and discern no abuse of discretion in Judge
Francois's denial of Susana's request for the payment of her attorney's fees and
costs. Instead, we are convinced the judge undertook the appropriate analysis
of the facts under the Rules of Court and properly applied the factors outlined
under Rule 5:3-5(c).
Such factors included the parties' "financial circumstances" and "ability
to pay" their own fees or contribute to the other party's fees. The record supports
the judge's exercise of discretion in determining Susana could pay her own fees.
Next, Susana contends Gary filed his motion in "bad faith." However,
where "a party advances a legal position reasonably supported which the court
rejects, [it] is not the equivalent of 'bad faith.'" Slutsky v. Slutsky, 451 N.J.
Super. 332, 367 (App. Div. 2017) (citation omitted). "Examples of bad faith
include misusing or abusing process, seeking relief not supported by fact or law,
A-0251-22
13
intentionally misrepresenting facts or law, or otherwise engaging in vexatious
acts for oppressive reasons." Ibid. These circumstances do not exist here.
Lastly, Susana argues the judge failed to consider she was "previously
awarded" fees in the domestic violence trial. However, we find this argument
unavailing. The analysis for an award of counsel fees in a domestic violence
trial differs from the fee analysis in a post-judgment matrimonial matter. In a
divorce action, "the purpose of the [attorney's fee] award is to equalize the
positions of the parties . . . and to provide the needier individual with the
financial means of prosecuting or defending a court action." DiGiacomo v.
DiGiacomo, 256 N.J. Super. 404, 410 (App. Div. 1992) (citation omitted). But
in a domestic violence matter, "reasonable attorney's fees" are considered a
compensatory damage. A "defendant [is ordered] to pay to the victim monetary
compensation for losses suffered as a direct result of the act of domestic
violence." N.J.S.A. 2C:25-29(b)(4). Included within the losses is "reasonable
attorney’s fees." Ibid.Any remaining arguments raised by the parties are without sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-0251-22
14