A.W. v. A.C.W. (FM-11-0373-17, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0433-20
A.W.,1
Plaintiff-Respondent,
v.
A.C.W.,
Defendant-Appellant.
__________________________
Submitted December 13, 2021 – Decided January 4, 2022
Before Judges Fasciale and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FM-11-0373-17.
Matthew B. Lun, attorney for appellant.
Pellettieri Rabstein & Altman, attorneys for respondent
(John A. Hartmann, III, of counsel; Jillian Frost
Kalyan, on the brief).
1
We use initials to identify the parties and third party to protect and preserve
the confidentiality of these proceedings.
PER CURIAM
In this post-judgment matrimonial matter, defendant A.C.W. appeals from
an August 28, 2020 Family Part order denying, without prejudice, his motion to
terminate his ten-year limited duration alimony (LDA) and related obligations
to plaintiff A.W. based on changed circumstances and her alleged cohabitation
with E.S. under N.J.S.A. 2A:34-23(n). Defendant contends he established a
prima facie case of changed circumstances and cohabitation warranting
discovery and a plenary hearing. The judge denied plaintiff's notice of cross -
motion insofar as it sought an award of counsel fees and costs. We have
considered these arguments in light of the record and affirm.
I.
We derive the facts from the record. After nearly twenty-seven years of
marriage, the parties divorced on October 10, 2017, pursuant to a final judgment
of divorce (FJOD). They had no children. A previously negotiated agreement
was placed orally on the record and incorporated into the FJOD. In part,
defendant agreed to: (1) pay LDA to plaintiff of $1,800 per month for a period
of ten years; (2) maintain life insurance naming plaintiff as his sole beneficiary
to secure the alimony obligation; and (3) contribute $5,000 towards plaintiff's
counsel fees. Defendant waived any equitable distribution interest claim to the
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parties' former marital home and plaintiff's business, Café Vienna, which was
located in Princeton. Plaintiff agreed to pay the parties' joint credit card debt,
approximately $17,000, and waived any claim to defendant's retirement
accounts. When the FJOD was entered, defendant owned an IRA valued at
approximately $93,000 and a 401(k) plan valued at approximately $126,000.
Notably, the parties' agreement and FJOD are "silent as to the
circumstances of the parties at the time . . . [and] marital standard of living."
Specifically, the FJOD did not address the parties' incomes, lifestyles, or
liabilities, or individual liabilities or circumstances permitting modification or
termination of defendant's alimony and related obligations.
In July 2018, plaintiff sold Café Vienna for $115,000 because she was
unable to keep up with an increasing demand in business "due to outdated
electrical, water, and other systems in the building." From the $115,000 gross
proceeds, plaintiff owed the following debts, stated in appropriate amounts: (1)
$23,000 in taxes and penalties to the State; (2) $40,000 on an outstanding
business loan; and (3) $36,000 in unpaid payroll taxes, with $24,000 still due
and owing. Plaintiff certified she used the remaining proceeds to support herself
while she "looked for work over the next year." At this time, plaintiff "was
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almost [fifty-nine] years old and had not been employed in any capacity for more
than five years."
Ultimately, plaintiff's childhood friend E.S. offered her part-time
employment as an office manager for his family business, E+MSA, in Austria.
E+MSA certifies "real property for energy compliance." According to plaintiff,
she and E.S. became close friends when she was a teenager, and the two
remained "pen pals as adults." Plaintiff accepted E.S.'s offer of employment and
moved to Austria with the funds remaining from the sale of Café Vienna. E.S.
traveled to the United States to help her move.
Currently, plaintiff earns between $727 and $938 per month. Her
compensation includes use of a company vehicle. Plaintiff is responsible for
paying the vehicle's expenses, including insurance, maintenance, and fuel. She
also pays for her own apartment, "unit two," located in Sankt Veit an der Glan,
located down the hall from an apartment, "unit one," leased by E.S. According
to E.S., unit one is not his registered home address. Plaintiff certified E.S. has
used unit one "in some capacity, either personally or for business purposes, at
various times since 2017."
Following the parties' divorce, defendant "repeatedly asked [plaintiff] to
agree to terminate alimony," but she refused. Thereafter, defendant retained
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Pro-Investigators to investigate and conduct surveillance on plaintiff and E.S.
The investigation began on April 2, 2020, and concluded less than two weeks
later on April 13, 2020. During that time span, Pro-Investigators reported
plaintiff and E.S. were "together for all nine of the nine days they were
observed" and "all seven of the seven nights they were observed." They entered
plaintiff's apartment together and did not leave until the next morning.
Additionally, plaintiff and E.S. were observed by the investigator "shop[ping]
for groceries together, visit[ing] family together," and traveling to and from
work together.
On July 2, 2020 2, defendant filed a notice of motion seeking to terminate
his alimony obligations to plaintiff or, alternatively, to set forth a discovery
schedule and conduct a plenary hearing to address plaintiff's earning capacity.
On August 13, 2020, plaintiff filed a notice of cross-motion seeking to deny
defendant's motion and to compel him to provide proof of life insurance. 3 Both
parties sought counsel fees and costs.
2
Plaintiff mistakenly claims the date was July 3 in her brief.
3
Defendant provided proof of life insurance in his August 20, 2020 reply
certification, thereby rendering this aspect of plaintiff's cross-motion moot.
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On August 28, 2020, the judge heard oral argument. During oral
argument, defendant claimed E.S. is plaintiff's boyfriend and had "asked her to
come to Austria [to] live with him." In opposition, plaintiff claimed E.S. is just
"a longtime friend[] [who] offered her employment[] [when] [s]he couldn't find
work." On the same date, following oral arguments of counsel, the judge
rendered an oral opinion denying defendant's motion, without prejudice, and
denying plaintiff's cross-motion for counsel fees and costs. The judge analyzed
defendant's motion by applying the New Jersey alimony statute's enumerated
factors.4
As to the first two factors, the judge found there was "[in]sufficient
evidence based upon the investigator's report that would demonstrate . . .
[plaintiff and E.S.] had intertwined finances [or] joint responsibility for living
expenses." And, the judge stressed "the investigator's report really misse[d] the
mark," because "there were two apartments. It's an apartment building" and
"plaintiff has her own separate apartment." Nor did the judge find "evidence of
recognition of the relationship," pursuant to the third factor. Furthermore, the
4
The six factors are: (1) intertwined finances; (2) shared living expenses; (3)
recognition of the relationship in the couple's social and family circle s; (4)
frequency of contact and duration of relationship; (5) shared household chores;
(6) enforceable promises of support; and (7) all other relevant evidence.
N.J.S.A. 21:34-23(n).
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judge noted there was no evidence of plaintiff and E.S. traveling together in
"social circles," or of the "couple" on social media.
In regard to the fourth factor, frequency of contact, the judge found
defendant's surveillance of nine days "primarily focused on the fact that
[plaintiff and E.S.] entered the [apartment] building at the same time and did not
exit."5 The judge found plaintiff's explanation to be "entirely reasonable"
because: (1) E.S. had asked plaintiff to come to Austria, his domicile, and E.S.
had offered plaintiff employment, which she accepted; and (2) although plaintiff
and E.S. live in the same apartment building "she "has her own separate
apartment [from E.S.]." Additionally, even though plaintiff commutes daily
with E.S. to and from work, and on occasion drives E.S.'s personal car, plaintiff
"can't get her own automobile as she has to live in Austria at least for a year and
maybe [fulfill] some other requirements [to get one]." With regard to the
pandemic, the judge emphasized:
[W]hen the investigator was taking these photographs
in April of 2020[,] Austria had, for want of a better
term, a stay-at-home order . . . due to the [COVID-19]
pandemic.
And so [plaintiff has] explain[ed] there's a reason
why they go in together and nobody comes out for a
5
Although the investigation spanned twelve days, the investigator only
surveilled plaintiff and E.S. for nine days.
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day. [However,] the investigator gratuitously has in his
report, [that] they spent the night together. And . . . [I]
. . . question[ed] the investigator's language and the
assumption that they were spending the night together.
[T]here's absolutely no proof from the investigator that
at the end of the work day or maybe at the end of dinner,
when they had dinner together because of [COVID 19],
[and] everybody was stuck in the same building,
apartment complex, that she [did not] just [go] into her
unit at the end of the day. Both [plaintiff] and [E.S.]
are smokers, so there [a]re pictures of them smoking
cigarettes on the balcony.
[But] that really doesn't prove [cohabitation] . . . .
Based on the evidence, the judge found plaintiff's explanation was "entirely
reasonable considering [p]laintiff and [E.S.] occupy apartments down the hall
from each other in the same building."
As to the fifth factor, the judge found "[t]here was no proof of [plaintiff
and E.S.] sharing household chores," noting if any grocery shopping was done
by them together, it was not "jointly as a boyfriend and girlfriend." No evidence
of an enforceable promise was demonstrated as to factor six. The judge denied
defendant's motion to terminate alimony based upon changed circumstances and
cohabitation without prejudice and denied both parties' requests for counsel fees
and costs. This appeal followed.
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On appeal, defendant argues issues of material fact raised by plaintiff's
sale of Café Vienna and relocation to Austria were sufficient to warrant a
plenary hearing. We disagree and affirm substantially for the reasons expressed
by the Family Part judge. We add the following remarks.
II.
We first consider the well-settled principles that guide our review.
Alimony is an economic right, which "arises out of the marital relationship and
provides the dependent spouse with 'a level of support and standard of living
generally commensurate with the quality of economic life that existed during
the marriage.'" Quinn v. Quinn, 225 N.J. 34, 48 (2016) (quoting Mani v. Mani,
183 N.J. 70, 80 (2005)). "The basic purpose of alimony is the continuation of
the standard of living enjoyed by the parties prior to their separation." Innes v.
Innes, 117 N.J. 496, 503 (1990) (citing Mahoney v. Mahoney, 91 N.J. 488, 501-
02 (1982)). Thus, alimony permits a dependent "spouse to share in the
accumulated marital assets to which he or she contributed." Konzelman v.
Konzelman, 158 N.J. 185, 195 (1999) (citing Mahoney, 91 N.J. at 500-01).
Our scope of review of the trial court's decision is limited. "Whether an
alimony obligation should be modified based upon a claim of changed
circumstances rests within a Family Part judge's sound discretion." Larbig v.
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Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). Each individual motion for
modification is particularized to the facts of that case, "and the appellate court
must give due recognition to the wide discretion which our law rightly affords
to the trial judges who deal with these matters." Ibid. (quoting Martindell v.
Martindell, 21 N.J. 341, 355 (1956)). We will not disturb the trial court's
decision on alimony unless we:
conclude that the trial court clearly abused its
discretion, failed to consider all of the controlling legal
principles, or must otherwise be well satisfied that the
findings were mistaken or that the determination could
not reasonably have been reached on sufficient credible
evidence present in the record after considering the
proofs as a whole.
[Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div.
1996) (citing Rolnick v. Rolnick, 262 N.J. Super. 343,
360 (App. Div. 1993)).]
Alimony "may be revised and altered by the court from time to time as
circumstances may require." N.J.S.A. 2A:34-23. To make such a modification,
"a showing of 'changed circumstances'" is required. See Lepis v. Lepis, 83 N.J.
139, 146 (1980); see also Weishaus v. Weishaus, 180 N.J. 131, 141 (2004)
(citations omitted).
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Changed Circumstances
First, defendant argues that "[p]laintiff's decision to sell [Café Vienna]
represents a change in circumstances," because she was capable of "earn[ing] an
income sufficient for her to maintain the martial standard of living without
alimony from [d]efendant." According to defendant, "plaintiff enjoyed a higher
earning capacity throughout the marriage and, with [Café Vienna] having been
sold, she could return to that level of employment." Hence, defendant claims
"[i]n light of [p]laintiff's demonstrated capacity to earn nearly $150,000
annually for many years, her earning capacity following the sale of the café
presents a genuine issue of material fact."
A changed circumstance may include both "an increase or decrease in the
income of the supporting or supported spouse." Quinn, 225 N.J. at 49 (quoting
J.B. v. W.B., 215 N.J. 305, 327 (2013)). Changed circumstances applies equally
to "where there has been a significant change for the better in the circumstances
of the dependent spouse as where there has been a significant change for the
worse in the [supporting spouse]'s own circumstances." Stamberg v. Stamberg,
302 N.J. Super. 35, 42 (App. Div. 1997) (emphasis added) (citing Aronson v.
Aronson, 245 N.J. Super. 354, 364 (App. Div. 1991)).
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A moving party "may make a prima facie showing of changed
circumstances . . . by citing a combination of changes . . . of both parties[,] which
together have altered the status quo [that] existed at the time of the entry of the
support order under review." Donnelly v. Donnelly, 405 N.J. Super. 117, 131
(App. Div. 2009) (quoting Stamberg, 302 N.J. Super. at 42). "[T]he changed-
circumstances determination must be made by comparing the parties ' financial
circumstances at the time the motion for relief is made with the circumstances
which formed the basis for the last order fixing support obligations." Beck v.
Beck, 239 N.J. Super. 183, 190 (App. Div. 1990).
A moving party arguing a change for the worse in his or her own
circumstances must show specifically "that changed circumstances have
substantially impaired [their] ability to support himself or herself." Crews v.
Crews, 164 N.J. 11, 28 (2000) (quoting Lepis, 83 N.J. at 157). This standard
"must be understood to mean the ability to maintain a standard of living
reasonably comparable to the standard enjoyed during the marriage." Ibid. A
temporary reduction will not suffice. Innes, 117 N.J. at 504 (citing Bonanno v.
Bonanno, 4 N.J. .268, 275 (1950)).
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Here, the record shows defendant has maintained a reasonably comparable
standard of living as he enjoyed during the parties' marriage. 6 Defendant's taxed
Medicare earnings reflect he earned $196,000 in 2019, even though defendant
asserts that "2019 was an odd year," which presented significant opportunities
for overtime. He also certified such "overtime [was] no longer available" and
his expected earnings for 2020 were only $149,000. In contrast, in 2016, the
year plaintiff filed for divorce, defendant earned $112,485. Thus, even after
crediting defendant's yearly alimony obligation, his post-judgment income has
exceeded his earnings during the parties' marriage and does not include his
alternative potential to generate income. See Miller v. Miller, 160 N.J. 408,
420-21 (1999) (quoting Innes, 117 N.J. at 503). Plaintiff's economic situation
has not improved since the FJOD was entered. Therefore, we reject defendant's
argument that changed circumstances have been established. Stamberg, 302 N.J.
Super. at 42; see, e.g., Lepis, 83 N.J. at 151 (indicating post-divorce employment
by a previously unemployed dependent spouse would constitute changed
circumstances).
6
Defendant has not specifically argued a change in his own financial
circumstances.
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Cohabitation
Turning now to the issue of cohabitation, in Landau v. Landau, 461 N.J.
Super. 107, 108 (App. Div. 2019), we held that "the changed circumstances
standard of [Lepis] continues to apply to a motion to suspend or terminate
alimony based on cohabitation following the 2014 amendments to the alimony
statute, N.J.S.A. 2A:34-23(n)." Those amendments defined cohabitation as
"involv[ing] 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). To determine whether there is a prima facie
showing of changed circumstances, the court must consider the terms of the
order at issue and compare the facts as they existed when the order was entered
with the facts at the time of the motion. See, e.g., Quinn, 225 N.J. at 45-46.
A prima facie showing of cohabitation constitutes sufficient changed
circumstances under Lepis. Gayet v. Gayet, 92 N.J. 149, 154-55 (1983).
Cohabitation has been defined as "an intimate relationship in which the couple
has undertaken duties and privileges that are commonly associated with
marriage." Konzelman, 158 N.J. at 202. Where a supporting spouse seeks to
decrease or terminate alimony because of the dependent spouse's cohabitation,
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"the test for modification of alimony is whether the relationship has reduced the
financial needs of the dependent former spouse." Gayet, 92 N.J. at 149-50.
Alimony may be modified "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 anything toward the household expenses." Id. at 153
(citing Garlinger v. Garlinger, 137 N.J. Super. 56,64 (App. Div. 1975)).
"[A] showing of cohabitation creates a rebuttable presumption of changed
circumstances shifting the burden to the dependent spouse to show that there is
no actual economic benefit to the spouse or the cohabitant." Reese v. Weis, 430
N.J. Super. 552, 570 (App. Div. 2013) (quoting Ozolins v. Ozolins, 308 N.J.
Super. 243, 248 (App. Div. 1998)). The court must focus on the cohabitant's
economic relationship to discern "whether one . . . 'subsidizes the other.'" Id. at
571 (quoting Boardman v. Boardman, 314 N.J. Super. 340, 347 (App. Div.
1998)). Whether this economic benefit exists requires a fact-intensive inquiry
by the trial judge. Id. at 576.
Prior to the Legislature's adoption of the 2014 amendments, the legal
criteria for cohabitation were not specified by statute but instead embodied in
case law. See generally, Konzelman, 158 N.J. at 195-203. As the Supreme
Court explained in Konzelman, cohabitation is typified by the existence of a
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marriage-like relationship "shown to have stability, permanency[,] and mutual
interdependence." Id. at 202; see also Reese, 430 N.J. Super. at 570 (similarly
noting that "[c]ohabitation involves an 'intimate[,]' 'close and enduring'
relationship, requiring 'more than a common residence' or mere sexual liaison"
(second alteration in original) (quoting Konzelman, 158 N.J. at 202)).
Although "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" may support a finding of
cohabitation, such illustrative examples must not be considered in a vacuum.
Konzelman, 158 N.J. at 202. "A mere romantic, casual[,] or social relationship
is not sufficient to justify the enforcement of a settlement agreement provision
terminating alimony[,]" nor is simply sharing "a common residence, although
that is an important factor. Cohabitation involves an intimate relationship in
which the couple has undertaken duties and privileges that are commonly
associated with marriage." Ibid.In 2014, the Legislature addressed cohabitation in subsection (n) of
N.J.S.A. 2A:34-23. That provision sets forth the following considerations,
which bear upon cohabitation issues:
n. Alimony may be suspended or terminated if the
payee cohabits with another person. Cohabitation
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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;
(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.
In evaluating whether cohabitation is occurring and
whether alimony should be suspended or terminated,
the court shall also consider the length of the
relationship. A court may not find an absence of
cohabitation solely on grounds that the couple does not
live together on a full-time basis.
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After carefully reviewing the amendments, "we [saw] no indication the
Legislature evinced any intention to alter the Lepis changed circumstances
paradigm when it defined cohabitation and enumerated the factors a court is to
consider in determining 'whether cohabitation is occurring.'" Landau, 461 N.J.
Super. at 116 (quoting N.J.S.A. 2A:34-23(n)). We determined the party seeking
modification still 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." Id. at 118-19 (alteration in original) (quoting Lepis, 83 N.J. at
157).
We recently held that evidence of all seven factors enumerated in N.J.S.A.
2A:34-23(n) is not required for the moving party "to establish a prima facie
[showing] of cohabitation." Temple v. Temple, 468 N.J. Super. 364, 370 (App.
Div. 2021). Nor does the statute contain all factors the trial court may consider
when reviewing whether cohabitation exists. Ibid. ("[T]he statute does not
contain the alpha and omega of what ultimately [may] persuade a court that a[n]
[ex-]spouse is cohabiting.").
The moving party satisfies its prima facie burden when the party has
presented enough evidence for the "trier of fact [to] conclude the [dependent]
spouse and another are in 'a mutually supportive, intimate personal relationship'
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in which they have 'undertaken duties and privileges that are commonly
associated with marriage or civil union.'" Id. at 371 (emphasis added) (quoting
N.J.S.A. 2A:34-23(n)).
Thus, an appellate court should not disturb the Family Part judge's
determination, unless the appellate court concludes: (1) the trial court failed to
consider all the required cohabitation factors listed under N.J.S.A. 2A:34-23(n),
see id. at 369 ("To be clear, . . . the Legislature mandates a court's consideration
of [all] factors in ultimately determining whether cohabitation is or has been
occurring."); 7 (2) the trial court failed to grant defendant the benefit of all
reasonable inferences in determining whether the facts support no other
conclusion than cohabitation, see id. at 368 (holding the moving party is
"entitled to an assumption of the truth of [its'] allegations and the benefit of all
reasonable inferences to be drawn from the evidence . . . marshaled"); or (3) the
trial court's conclusion "could not reasonably have been reached . . . after
considering the [evidence] as a whole." Heinl, 287 N.J. Super. at 345 (citing
Rolnick, 262 N.J. Super. at 360).
7
Here, no party has alleged the judge failed to consider all the required factors.
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Here, the parties themselves voluntarily entered into the agreement
memorialized in the FJOD. Unlike Quinn, the parties' FJOD did not "outline[]
the circumstances that will terminate the alimony obligation." Quinn, 225 N.J.
at 50 (citing Konzelman, 158 N.J. at 197). Therefore, the judge was not required
"to terminate alimony upon cohabitation, even if cohabitation does not result in
any changed financial circumstances." Ibid.In the matter under review, defendant has the burden of establishing a
prima facie showing of cohabitation. Landau, 461 N.J. Super. at 118 (citing
Lepis, 83 N.J. at 157). To establish a prima facie showing of cohabitation, the
moving party is required to produce enough evidence "[s]ufficient to . . . raise a
presumption [of cohabitation] unless disproved or rebutted." Prima facie,
Black's Law Dictionary 1209 (11th ed. 2019).
The moving party is "entitled to an assumption of the truth of his
allegations and the benefit of all reasonable inferences to be drawn from the
evidence he had marshaled." Temple, 468 N.J. Super. at 368 (emphasis added).
However, conclusory allegations will be disregarded. Lepis, 83 N.J. at 159. The
judge may "rely on the supporting documents and affidavits of the parties," ibid.,
but the judge cannot decide the dispute on the papers "[w]hen presented with
competing certifications that create a genuine dispute [of] material fact[]."
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Temple, 468 N.J. Super. at 368-69 (emphasis added); see also Lepis, 83 N.J. at
159 ("[A] party must clearly demonstrate the existence of a genuine issue as to
a material fact before a hearing is necessary."); Material fact, Black's Law
Dictionary 611 (11th ed. 2019) (defining a material fact as "[a] fact that is
significant or essential to the issue or matter at hand").
We recognize that a prima facie showing of cohabitation may be difficult
to establish. Landau, 461 N.J. Super. at 118 (citing Konzelman, 158 N.J. at 191-
92). "[R]eadily available evidence is often 'consistent with either a dating
relationship or a cohabitation relationship.'" Ibid. (quoting Konzelman, 158 N.J.
at 191-92). However, the difficulty of the moving party to establish a prima
facie showing "cannot justify the invasion of [the ex-spouse]’s privacy." Ibid.;
see also Quinn, 225 N.J. at 54-55 ("There are few exercises more intrusive than
. . . an inquiry[,] [which] reveals a vast amount of personal information about
the daily life of the [dependent] spouse that is of no concern to the [supporting]
spouse."). The judge "should be careful not to permit a fishing expedition into
a supported spouse's private affairs on a weak claim." Temple, 468 N.J. Super.
at 375.
As such, although in weighing the parties' sworn statements the movin g
party is "entitled to an assumption of the truth of his allegations and the benefit
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of all reasonable inferences to be drawn from the evidence [it] ha[s] marshaled,"
id. at 368, discovery is only warranted "[w]hen the facts support no conclusion
other than that the relationship has all the hallmarks of a marriage," Quinn, 225
N.J. at 54. A mere romantic relationship between an ex-spouse "and another,
characterized by regular meetings, participation in mutually appreciated
activities, and some overnight stays in the home of one or the other, [does not]
rise[] to the level of cohabitation." Ibid. [T]his level of control over a former
spouse would be unwarranted." Ibid.
In Temple, where the trial judge held, without a hearing or factual
findings, that the supporting spouse had failed to establish a prima facie showing
of cohabitation, we reversed and concluded the supporting spouse had in fact
established a prima facie showing of cohabitation and raised a genuine factual
dispute regarding the relationship of the dependent spouse and her boyfriend of
fourteen years. See generally 468 N.J. Super. 367-77. We noted that the judge
had "mistakenly weighed the parties' competing sworn statements and accepted
as true [the dependent spouse's] explanation of the facts," while ignoring the
abundance of evidence presented by the supporting spouse. Id. at 368. In our
decision, we noted the supporting spouse had:
[S]hown, based on . . . social media[,] . . . the way [the
couple] presented in public, as well as information from
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family members, that [the couple] are now or have in
the past resided together, that they have had a fourteen-
year relationship, that they have traveled together
extensively, and that there are other "indicia of
mutually supportive intimate personal relationship."
. . . [N]ot being privy to the[] [couple's] financial
arrangements and circumstances beyond what an
outsider may see without unlawfully prying, . . . . [the
supporting spouse] decided to hire a private
investigator.
This investigation produced considerable evidence of
cohabitation or perhaps even a marriage. Specifically,
in numerous social media posts over the span of the past
seven years, [the boyfriend] referred to [dependent
spouse] as "my wife" . . . .
....
. . . [H]e and [dependent spouse] traveled and
participated in events extensively. . . .
....
. . . [They][s]pent a considerable amount of time
with [each other] at his . . . home . . . .
....
. . . [and] he has resided in [her] . . . apartment.
. . . [Defendant] produced photos obtained by his
private investigator that depict [dependent spouse]
engaging in household responsibilities, such as
bringing groceries into [the boyfriend's] home,
performing other household shopping trips, and
retrieving and opening mail. [She] is seen in these
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photographs using a key or entering the . . . residence
through the garage keypad access code. . . .
....
In opposing [supporting spouse's] motion,
[dependent spouse] filed a certification in which she
attempted to refute or explain all the information he
presented.
[Id. at 371-75 (citations omitted).]
Although there may have been non-cohabitation explanations, we noted the only
question for the judge to consider was whether the supporting spouse "presented
enough [evidence] to entitle him to discovery and an evidentiary hearing." Id.
at 375.
Here, in contrast to Temple, where the judge had "mistakenly weighed the
parties' competing sworn statements and accepted as true [the dependent
spouse]'s explanation of the facts," while ignoring the abundance of evidence
presented by the supporting spouse, id. at 368, the judge did not abuse her
discretion in weighing the credibility of the parties' and third-parties' sworn
statements. Firstly, the judge entertained oral argument on the motions.
Secondly, the judge did not ignore an abundance of evidence.
In Temple, the supporting spouse had provided: information from family
members; numerous social media posts spanning seven years in which the
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boyfriend referred to the dependent spouse as "my wife;" traveled and
participated in events extensively; spent considerable time with each other at
their homes; and produced many photos depicting household responsibilities,
such as bringing groceries in, performing other household shopping trips,
retrieving and opening mail, and using a key or entering the residence th rough
the garage keycode access pad. Id. at 371-75 (emphasis added).
Contrariwise, here defendant provided no third-party affidavit or
certification of friends or family; no social media posts; and he simply relies on
the private investigator's limited surveillance of plaintiff and E.S. Moreover,
defendant's own investigation showed plaintiff is an employee of E+MSA and
has her own officially registered address, separate and apart from E.S. Both
parties largely rely on their certifications, for which defendant was entitled to
an assumption of the truth and the benefit of all reasonable inferences. Temple,
468 N.J. Super. at 368. However, the reasonableness of defendant's allegations
is afforded to the judge, "who deal[s] with these matters.” Larbig, 384 N.J.
Super. at 21 (quoting Martindell, 21 N.J. at 355).
We disagree with defendant's assertion that he demonstrated prima facie
evidence of a change of financial circumstances or cohabitation—plaintiff and
E.S. were in "a mutually supportive, intimate personal relationship in which a
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couple has undertaken duties and privileges that are commonly associated with
marriage[,]" N.J.S.A. 2A:34-23(n)—based solely on the documents filed by both
sides. Moreover, the judge found that plaintiff and E.S. spend time together but
maintain separate residences. The judge's findings were based upon substantial
credible evidence in the motion record and did not warrant further discovery.
Therefore, we discern no abuse of discretion and defendant's motion was
properly denied without prejudice.
Since defendant failed to establish a prima facie showing of changed
circumstances or cohabitation, he is not entitled to discovery or a plenary
hearing. Landau, 461 N.J. Super. at 119 (citing Lepis, 83 N.J. at 157). We
conclude that the remaining arguments—to the extent we have not addressed
them—lack sufficient merit to warrant any further discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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