DANIEL J. DALTON VS. DIANE DALTON (FM-11-0485-08, 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NOT FOR PUBLICATION WITHOUT THE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-5865-17T4
DANIEL J. DALTON,
Plaintiff-Appellant,
v.
DIANE DALTON,
Defendant-Respondent.
______________________________
Submitted June 6, 2019 – Decided July 19, 2019
Before Judges Simonelli and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FM-11-0485-08.
Stark & Stark, PC, attorneys for appellant (Corrine
Evanochko Cooke, of counsel and on the briefs; Taylor
Wellington Brownell, on the briefs).
Ulrichsen Rosen & Freed, LLC, attorneys for
respondent (Wendy Michelle Rosen, of counsel and on
the brief; Rebecca Day, on the brief).
PER CURIAM
In this post-judgment matrimonial matter, plaintiff Daniel J. Dalton
appeals from a Family Part order denying his request to compel additional
discovery from defendant Diane Dalton relating to cohabitation issues that could
affect plaintiff's ongoing obligation to pay alimony and awarding counsel fees
of $8000 to defendant relative to her motion to enforce litigant's rights. The
trial judge denied plaintiff's cross-motion because he did not make a prima facie
showing of cohabitation that would justify expansive discovery and intrusion
upon defendant's privacy. For the reasons that follow, we affirm.
I.
The parties were divorced in December 2008 after a twenty-four year
marriage. As part of their marital settlement agreement (MSA) incorporated
into their final judgment of divorce, plaintiff agreed to pay defendant $6200
monthly in permanent alimony, plus annual cost of living adjustment (COLA)
increases based upon the Consumer Price Index percentage, less $653 per month
after meeting his social security tax contribution each year. At the time of the
divorce, plaintiff was earning $240,000 annually and bonuses in the $100,000
range. He agreed to pay defendant thirty-percent of his gross annual bonus, not
to exceed $31,000 per year, as additional alimony, conditioned on plaintiff
maintaining employment with his then-employer, and so long as "its
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compensation scheme remains materially the same as the date of [their]
[a]greement[.]"
The parties agreed in the MSA that alimony would terminate upon the
happening of certain events. Paragraph ten set forth the cohabitation language:
The aforesaid alimony payments may be modified or
terminated upon application to the [c]ourt by [plaintiff]
in the event of [defendant's] cohabitation with an
unrelated person pursuant to Gayet v. Gayet, 92 N.J.
149 (1983) and Ozolins v. Ozolins, 308 N.J. Super. 273
(App. Div. 1998). [Defendant] shall have a duty to
notify [plaintiff] in the event she is cohabiting with an
unrelated person.
On May 1, 2018, defendant moved to adjudicate plaintiff in violation of
litigant's rights because he failed to add COLA increases to her alimony
payments for several years; accrued arrearages of $13,632 in child support for
the parties' three children, $9,674.64 in tuition and college related costs, and
$3,357.42 for the children's unreimbursed healthcare expenses; and owed
defendant his fifty-percent share of the cost for repairs to prepare the former
marital home for sale. In opposition, plaintiff argued defendant's motion was
barred by the doctrine of laches because she [sat] "on her rights for [an] extended
length of time and, all of a sudden, asks [the] [c]ourt to award her a significant
pay day."
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Plaintiff cross-moved to modify or terminate alimony based upon
defendant's alleged cohabitation with her paramour, S.G. 1 The judge granted
defendant's motion and denied plaintiff's cross-motion.
According to plaintiff, defendant has maintained a longstanding
relationship with S.G., in which the two of them allegedly interact and hold
themselves out as the equivalent of spouses. In support of his contentions,
plaintiff included in his moving papers S.G.'s mother's obituary from February
2010 naming defendant as S.G.'s girlfriend, photographs of the couple travelling
to Hawaii, Vermont, and New York, social media postings, and evidence of them
spending holidays together. Plaintiff certified that defendant has been
cohabiting with S.G. for ten years.
As further support of his contentions, plaintiff submitted t wo private
investigator's reports dated March 2, 2016 and June 5, 2018. The 2016 report
documented defendant spending four overnights at S.G.'s residence over an
eight-day period. In opposition, defendant claimed only two of these days
included overnight stays. The 2018 report revealed defendant and S.G. reside
within 3.3 miles of each other, and included surveillance of the couple at the
Wildflowers Inn on June 2, 2018. They were "observed parking next to a closed
1
We use initials to protect the confidentiality of the third party.
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dry cleaners and walking on foot into the restaurant portion of the
establishment[,]" and several hours later, they drove to S.G.'s residence at 11:01
p.m. in defendant's vehicle which "pulled from the roadway and [drove] down
the curved driveway and from sight." Surveillance continued on June 3, 2018,
"nearly two hours after [defendant] and [S.G.] returned to the residence. At this
time with no observation of [defendant] leaving the residence, the surveillance
was ended for the evening."
Defendant denied spending that night at S.G.'s house, and submitted
surveillance footage from S.G.'s neighbor's house which showed her leaving
S.G.'s house approximately five minutes after pulling into his driveway on June
2, 2018. Further, defendant provided a phone record confirming she called S.G.
at 11:22 p.m. that evening to inform him she arrived home safely.
Defendant certified that she and S.G. "go out as a couple and socialize
together[,]" but denied spending a significant amount of time with him. While
S.G. was convalescing following chemotherapy, defendant admitted she assisted
him "just as [she] would have assisted anyone else with whom [she] had a
relationship[,]" and refuted plaintiff's assertion that she "nursed and cared for
[S.G.] throughout his entire chemotherapy and radiation treatment on a daily
basis." Defendant also certified she spends some holidays with S.G., but not all
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of them because they spend most of them with their respective children. Plaintiff
submitted only one photograph from Thanksgiving 2017 illustrating defendant
and S.G. spent the holiday together, and defendant rebutted his argument by
stating most holidays were not spent together, including Christmas 2017.
Defendant certified the couple does "not function as or resemble a family unit[,]"
and there was only one occasion in the past ten years when their children were
all together.
Defendant certified the couple has "no economic interconnectedness.
[She does] not receive any economic benefit from [her] dating relationship with
[S.G.] beyond the benefit that is likely associated with most dating
relationships[,]" like shared dinners and limited travel. Defendant offered
proofs showing she and S.G. have separate mailing addresses, and that each pays
their own bills and expenses. Her representation was supported by copies of
utility bills, her bill-pay bank summary, cancelled checks, and current and
former leases, none of which include S.G.'s name. The judge found:
[T]hat plaintiff has failed to establish a prima facie case
of cohabitation. Plaintiff offers no proof that defendant
and the alleged cohabitator have overnight[] stays with
any frequency at all. There are no material facts in
dispute that would warrant a plenary hearing. . . .
[D]efendant makes no admissions regarding overnights
and plaintiff does not establish any frequency of
duration of overnights.
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The judge deemed the 2016 surveillance report outdated and gave it little
weight. No financial independence was shown by plaintiff, and the judge found
he failed to submit "any proof of comingling of finances between defendant and
the alleged cohabitator." The judge further held that social media postings, some
vacations, some holidays, holding themselves out as a couple, and defendant
being mentioned in S.G.'s mother's obituary "fall short of establishing a pr ima
facie showing that defendant is in a cohabiting relationship tantamount to
marriage." "[P]laintiff provides no proofs that defendant and the third party
named in plaintiff's [n]otice of [m]otion spend any meaningful amount of
overnights together."
On appeal, plaintiff argues that the judge abused his discretion by failing
to enforce the terms of the MSA; find plaintiff established a prima facie case of
cohabitation; permit discovery or conduct a plenary hearing; and abused his
discretion by awarding defendant counsel fees.
II.
Plaintiff argues that the judge erred by evaluating the cohabitation issue
under Konzelman v. Konzelman, 158 N.J. 185 (1999), instead of the standards
set forth in Gayet, and Ozolins, as contemplated in their MSA. We disagree.
A-5865-17T4
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We first consider the well-settled principles that guide our review.
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. Lepis v. Lepis, 83 N.J. 139,
146 (1980); see Weishaus v. Weishaus, 180 N.J. 131, 140-41 (2004). 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
Faucett v. Vasquez, 411 N.J. Super. 108, 129 (App. Div. 2009).
A prima facie showing of cohabitation constitutes sufficient changed
circumstances under Lepis. Gayet, 92 N.J. at 154-55. 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, "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 150. Alimony may be modified
"when (1) the third party contributes to the dependent spouse's support, or (2)
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the third party resides in the dependent spouse's home without contributing
anything toward the household expenses." Id. at 153.
"[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 cohabitant." Reese v. Weis, 430
N.J. Super. 552, 570 (App. Div. 2013) (quoting Ozolins, 308 N.J. Super. at 245).
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.
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.
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
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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).]
Plaintiff claims the judge rewrote the parties' MSA by applying the
incorrect standard and failed to follow our Supreme Court's mandate in Quinn
v. Quinn, 225 N.J. 34, 45 (2016), which requires a court to "discern and
implement the intentions of the parties." In support of his position, plaintiff
relies on the judge's reference to Konzelman:
As [our] Supreme Court explained in Konzelman . . .
cohabitation is typified by the existence of a marriage-
like relationship "shown to have stability, permanency,
and mutual interdependence." [158 N.J. at 202.] . . .
Although "living together, intertwined finances such as
joint bank accounts, shared living expenses and
household chores" may support a finding of
cohabitation, such illustrative examples must not be
considered in a vacuum. [Ibid.] "A mere romantic,
casual or social relationship is not sufficient," nor is
simply sharing a "common residence, although that is
an important factor." Ibid.
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Plaintiff notes Konzelman was decided in 2008, at the time the parties entered
into their MSA, but they specifically agreed to abide by the previous holdings
in Gayet and Ozolins.
Not only does plaintiff contend the judge's application of Konzelman was
improper, he also claims he met his burden of establishing a prima facie case of
cohabitation pursuant to Gayet and Ozolins. The Gayet court held that a
dependent spouse's cohabitation with another constitutes a change in
circumstances, warranting a modification or termination of the supporting
spouse's alimony obligation. 92 N.J. at 154-55. But Gayet also established "that
cohabitation of the dependent spouse without more was not a changed
circumstance that could justify the reduction or termination of alimony by the
supporting spouse." Konzelman, 158 N.J. at 196. Accordingly, plaintiff's
argument lacks merit.
In his certification, plaintiff argues the 2014 amendment to the alimony
statute, N.J.S.A. 2A:34-23, codified the issue of cohabitation. The statute sets
forth the following considerations that bear upon cohabitation issues:
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
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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.
[(Emphasis added).]
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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, e.g., Konzelman, 158 N.J. at 195-203. Plaintiff argues in the
alternative that N.J.S.A. 2A:34-23(n) can be applied here, as opposed to the
Gayet and Ozolins holdings, because in any event, defendant and S.G. satisfy
all the factors except for residing together on a full-time basis.
Plaintiff further argues that because he established a prima facie case of
cohabitation, the burden shifted to defendant to refute the presumption of an
economic benefit as a result of cohabitation. Ozolins, 308 N.J. Super. at 248-
49. "[A] dependent spouse must prove he or she remains dependent on the
former spouse's support." Reese, 430 N.J. Super. at 571. In Ozolins, we
remanded the matter because the trial judge improvidently terminated the former
wife's alimony payments based upon her failure to rebut the former husband's
prima facie showing of cohabitation, and because the former husband was
diagnosed with prostate cancer, thereby diminishing his earning capacity. 308
N.J. Super. at 247. We held the former wife's cohabitation did "not justify a
total termination of alimony[,]" because we reasoned that the economic benefit
she derived from cohabitation was less than her monthly alimony payments and
her former husband did not prove his cancer diagnosis reduced his earning
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capacity – in fact he testified he continued to work despite his prostate cancer –
as he maintained the same level of income for the prior six years. Id. at 249.
We remanded the matter for a modification of the alimony amount and we did
not terminate alimony.
Here, the judge thoughtfully cited to Gayet and Ozolins throughout his
opinion. Citing to Gayet, 92 N.J. at 154-55, the judge recognized "an alimony
payor who alleges cohabitation must first present a prima facie case that his or
her former spouse is in such a cohabiting relationship tantamount to marriage[,]"
and noted "[i]f such a prima facie showing is made, the disputing ex-spouses
may then engage in mutual discovery." The judge also quoted Gayet's holding
that the trial court must evaluate whether the relationship "bears the generic
character of a family unit as a relatively permanent household." 92 N.J. at 149
(quoting State v. Baker, 81 N.J. 99, 108 (1979)). Further, the judge noted that
"[t]he payor's prima facie showing of cohabitation creates a rebuttable
presumption of changed circumstances, which the dependent ex-spouse may
then attempt to rebut 'with proof that the need for [spousal] support remains the
same[,]'" quoting Ozolins, 308 N.J. Super. at 248-49. (first alteration in
original). Therefore, we reject plaintiff's claim that the judge re-wrote the MSA.
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Plaintiff contends he met this burden to prove S.G.'s relationship with
defendant reduces her financial need. In addition to his proofs, plaintiff
contends the 2018 surveillance report includes a picture from S.G.'s Facebook
profile, which shows the couple on vacation, and indicates the photo was posted
on October 5, 2012, "seemingly from Hawaii," during defendant's birthday
period. Defendant commented "[t]he best birthday gift ever . . . Thank you to
my sweet man!" on the photo, which received four comments from defendant's
friends, as well as twenty-five "thumbs up" by others. The report concludes
"[t]his clearly indicates an acknowledgement[] by friends and family of the post
and content."
Plaintiff also certified S.G. owns vacation homes in Vermont and in
Florida, which defendant frequently visits, and the parties' children have also
visited. According to plaintiff, this "establishes defendant and her paramour's
long-lasting relationship, as well as her reduced financial needs as a result of
her paramour's substantial entanglement in her everyday life." The 2016
surveillance report indicated defendant spends fifty-percent of overnights with
S.G., but surveillance only spanned eight days.
Defendant counters that plaintiff is attempting to enforce terms of the
MSA that do not exist. She claims, "[a]lthough [p]laintiff does not clearly
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articulate it, the essence of his argument is that . . . the MSA requires the trial
court to skip the prima facie showing of cohabitation and move immediately to
the economic needs analysis." Defendant reiterates that before applying the
economic needs test, plaintiff must make a prima facie showing of her
cohabitation, the judge was required to look beyond the holdings in Gayet and
Ozolins because those cases determined whether it was justified for the
supporting spouse to continue payments after cohabitation was established, by
admission of the dependent spouses, and the judge aptly referred to Quinn and
J.B. v. W.B., 215 N.J. 305, 326 (2013), in finding the strong public policy
favoring settlement agreements in matrimonial matters, as well as other cases
determine whether a plenary hearing was required.
Ultimately, the judge determined plaintiff's proofs were insufficient to
establish a prima facie case of cohabitation. The judge held the prima facie
showing of cohabitation was established in Gayet by "a dependent spouse [who]
admittedly cohabited four nights a week for a three-and-one-half month period.
92 N.J. at 150. Here, defendant made no admissions regarding overnights and
plaintiff did not establish any frequency or duration of overnights." In fact,
defendant's July 12, 2018 certification states:
I live only with my son. [S.G.] lives on his own, in his
own house. We do not have any intertwined finances
A-5865-17T4
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such as joint bank accounts; we do not share any living
expenses and we do not share household chores. We do
not and have not lived as [h]usband and [w]ife.
Giving plaintiff "every reasonable inference[,]" the judge found he only
established one overnight stay in 2018 and four overnight stays in 2016, whereas
defendant provided proofs of separate finances and living arrangements from
S.G. The judge reasoned:
[Plaintiff's] private investigator reported one overnight
stay in 2018. Taking that substantially refuted finding
as true – which eliminates any factual disputes between
the parties – and giving him every reasonable inference
from that fact, plaintiff's evidence falls far short of
establishing that defendant and the alleged cohabitator
spend any significant number of overnights together.
One night does not cohabitation make.
Defendant contends that even if plaintiff satisfied his burden and made a
prima facie showing of cohabitation, he failed to provide proofs that a
modification or termination of alimony is warranted under Gayet. We agree.
The judge found:
The present record lacks any evidence that the couple's
finances are intertwined or that defendant is financially
dependent upon the significant other. There is no proof
of joint bank accounts or other joint asset holdings of
liabilities; no proof that the couple shares living
expenses; and no proof of any enforceable promise of
support. There is no proof of shared household chores.
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In both Gayet and Ozolins, the supported spouses admitted to
cohabitation. See Gayet, 92 N.J. at 150 (where the parties stipulated to the wife's
cohabitation with a significant other for three and a half months); see also
Ozolins, 308 N.J. Super. at 246 (where the dependent spouse conceded to
cohabitation with a male friend for economic reasons). Accordingly, only after
a prima facie showing of cohabitation was made was the trial court able to
evaluate the economic impact of cohabitation. Ozolins, 308 N.J. Super. at 247.
For this reason, plaintiff's argument that the judge improperly rewrote the
parties' MSA and applied the incorrect standard is devoid of merit.
III.
Plaintiff next argues that despite the judge's alleged failure to apply the
Gayet and Ozolins standards, plaintiff nevertheless established cohabitation
pursuant to Konzelman. He claims Konzelman set forth a three-prong test to
determine whether a dependent spouse is cohabiting with another. The three
factors are: (1) common residence; (2) an intimate relationship wherein the
parties undertake duties and privileges generally associated with marriage; and
(3) a serious and lasting relationship. Plaintiff argues the judge failed to
"delineate or define the factors outlined in Konzelman[,]" and placed little
weight on the second and third factors and substantial weight on the first factor.
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Konzelman differed from the economic needs test set forth in Gayet, and
found that an agreement between the parties to terminate alimony upon
cohabitation is valid "without regard to the economic consequences of that
relationship." 158 N.J. at 196. The Court reasoned that N.J.S.A. 2A:34-25
provides for termination of alimony upon remarriage,
without regard to the financial condition of the
dependent spouse, evincing an understanding on the
part of the Legislature that the autonomous decision of
the dependent former spouse to form new bonds
creating mutual obligations of support must be
recognized, and . . . therefore, supplant[s] the legal
vestiges of the prior marriage.
[Ibid.]
When a "dependent spouse enters a relationship that has all the indicia of
a marriage[,]" a settlement agreement terminating alimony is enforceable. Id.
at 197. The Court held:
[A] specific consensual agreement between the parties
to terminate or reduce alimony based on a
predetermined change of circumstances does not
require an inquiry into the financial circumstances or
economic status of the dependent spouse so long as the
provision itself is fair. Thus, where the parties have
agreed that cohabitation will constitute a material
changed circumstance, and that agreement has been
judged fair and equitable, the court should defer to the
arrangements undertaken by the parties. In that
situation where the dependent spouse has entered into a
new marriage-like relationship, the court need not delve
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into the economic needs of the dependent former
spouse.
[Ibid.]
These agreements must be consensual, fair and equitable. Id. at 198-201. "A
mere romantic, casual or social relationship is not sufficient to justify the
enforcement of a settlement agreement provision terminating alimony." Id. at
202. "While the use of consensual agreements to resolve marital controversies
is generally favored, we seriously question whether the language of the
provision at issue or the proofs proffered are sufficiently clear to justify
termination of alimony under the standard of enforceability recognized in
[Konzelman]." Palmieri v. Palmieri, 388 N.J. Super. 562, 564 (App. Div. 2006).
A supporting spouse must show "stability, permanency and mutual
interdependence" between the dependent spouse and their significant other.
Konzelman, 158 N.J. at 202. Although living together is an important factor,
cohabitation requires more than a common residence. Ibid.
Cohabitation involves an intimate relationship in which
the couple has undertaken duties and privileges that are
commonly associated with marriage. These can
include, but are not limited to, 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.
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[Ibid.]
We are mindful that the materials submitted to the judge—including the
vacation S.G. paid for to Hawaii to celebrate defendant's birthday—reflect that
he and defendant take part with one another in a variety of social and family
activities. Even so, the present record lacks any evidence that the couple's
finances are intertwined or that defendant is financially dependent upon S.G.
We agree with the judge that plaintiff also failed to establish a prima facie case
under Konzelman, and find no abuse of discretion.
IV.
Plaintiff argues that the judge abused his discretion by failing to give
proper weight to the 2016 surveillance report by failing to properly consider
Rule 403. N.J.R.E. 403. We disagree.
Rule 403 provides: "relevant evidence may be excluded if its probative
value is substantially outweighed by the risk of (a) undue prejudice, confusion
of issues, or misleading the jury or (b) undue delay, waste of time, or needless
presentation of cumulative evidence." The judge found the 2016 "surveillance
report—which documented four overnight stays—out of date; this is plaintiff's
application in 2018 and the [c]ourt puts little weight in a report from 2016."
Moreover, the judge found that even if he had given equal weight to both reports,
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at best they collectively established five overnights over a three year period, and
not fifty-percent of the time as alleged by plaintiff.
We reject plaintiff's argument that if the judge had given more weight to
the 2016 report, the balance would have tipped in favor of a prima facie showing
of cohabitation. The critical factor is "[t]he extent of actual economic
dependency[.]" Gayet, 92 N.J. at 154. The economic benefit to either
cohabitator must be sufficiently material to justify relief. Id. at 153-54. Our
review of a trial judge's evidentiary rulings are subject to an abuse of discretion
standard, Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-
84 (2010), and not a de novo standard as urged by plaintiff.
[A]ppellate review of a trial court's application of the
balancing test of [Rule] 403 . . . is subject to the abuse
of discretion standard, which sustains the trial court's
ruling "unless it can be shown that the trial court
palpably abused its discretion, that is, that its finding
was so wide [of] the mark that a manifest denial of
justice resulted."
[State v. Lykes, 192 N.J. 519, 534 (2007) (third
alteration in original) (quoting Verdicchio v. Ricco,
179 N.J. 1, 34 (2004)).]
Even if all of the materials proffered by plaintiff are considered, we
remain convinced of the soundness of the judge's finding that plaintiff has not
A-5865-17T4
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presented a prima facie case. Therefore, the judge did not abuse his discretion
under Rule 403 in respect of the 2016 surveillance report.
V.
Next, plaintiff argues that the judge abused his discretion by failing to
permit a period of discovery or conducting a plenary hearing to establish
economic interdependence between defendant and S.G. We reject this
argument.
If a prima facie showing of cohabitation is made, then the disputing ex-
spouses may engage in mutual discovery. Gayet, 92 N.J. at 154-55. Here, the
judge concluded "[defendant] and S.G. are in a relationship, but they are not
[cohabiting]. . . . They do not live together. They do not have intertwined
finances. They do not share living expenses. . . . They do not live as husband
and wife." Regardless of whether the criteria expressed in case law or codified
in N.J.S.A. 2A:34-3(n) are applied, the record amassed by plaintiff was
reasonably deemed insufficient by the judge to rise to the level of a prima facie
case that would justify the additional discovery he sought.
We also reject plaintiff's argument that a plenary hearing was necessary.
In concluding a plenary hearing was unwarranted, the judge stated:
It is customary for the factual disputes relating to the
alleged cohabitation to be resolved at a plenary hearing,
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at which the [c]ourt could evaluate the credibility of the
competing witnesses. See, e.g., [Winegarden v.
Winegarden, 316 N.J. Super. 52, 56 n.1 (App. Div.
1998)]. Conducting such a plenary hearing in
cohabitation disputes is consistent with the general
principle in post-judgment matrimonial cases that
"[d]isputes of material fact should not be resolved on
the basis of [written] certifications." [Palmieri, 388
N.J. Super. at 564]; see also Shaw v. Shaw, 138 N.J.
Super. 436, 440 (App. Div. 1976).
[(Third and Fourth alterations in original).]
The judge aptly noted, "[t]he need for a plenary hearing is not inexorable,
however, and the [c]ourt may dispense with a hearing if the parties present no
disputed issues of material fact and the matter is otherwise suited for disposition
on the papers." Ibid. Because plaintiff failed to establish a prima facie showing
of cohabitation, the judge correctly determined there were "no material facts in
dispute that would warrant a plenary hearing[,]" and we conclude there was no
abuse of discretion.
Plaintiff failed to set forth his argument that the judge failed to articulate
his reasons for denying discovery and a plenary hearing pursuant to Rule 1:7-
4(a) in a proper point heading in violation of Rule 2:6-2(a)(6). Accordingly, we
decline to consider the argument. See Mid-Atl. Solar Energy Indus. Ass'n v.
Christie, 418 N.J. Super. 499, 508 (App. Div. 2011) (declining to consider a
"cursory discussion" that was "raised for the first time . . . at the end of [the
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plaintiff]'s brief without a separate point heading"); Pressler & Verniero,
Current N.J. Court Rules, cmt. 2 on R. 2:6-2 (2019).
VI.
Lastly, the record belies plaintiff's argument that the judge gave particular
weight to factors three, seven, and nine of Rule 5:3-5(c),2 which permits an
award of fees in a Family Part action. The judge explicitly evaluated all of the
Rule 5:3-5(c) factors and determined that "defendant prevailed on her claims;
plaintiff did not[,]" emphasizing the entirety of defendant's motion sought
enforcement of plaintiff's obligations set forth in the MSA.
Regarding factors one and two, the judge found plaintiff to be in "a
superior ability to pay his own counsel feels and those of defendant[.]" As to
the bad or good faith of the parties' claims, the judge found "[p]laintiff's asserted
2
Pursuant to Rule 5:3-5(c) the court may consider:
(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; (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.
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defense of laches to have been made in good faith, even if not successful. The
[c]ourt finds his position on cohabitation to be less so. Consistent with the
results obtained, the [c]ourt finds defendant's positions and claims to be
reasonable and advanced in good faith." Further, plaintiff incurred $6,762.50 in
counsel fees and defendant incurred $9914 in fees.
Additionally, the judge found factor five to be irrelevant since this was
the parties' first post-judgment matter. Regarding factor eight, the judge found
"the entirety of defendant's [motion] sought to enforce rights and obligations s et
forth in the parties' agreement." And, the judge recounted "that the parties'
agreement contains a provision calling for reasonable counsel fees and costs in
the event that a party has to litigate enforcement issues." The judge noted, "the
Appellate Division has made clear, it is error to ignore an attorney's fee award
provision in a matrimonial settlement agreement[,]" citing to Strahan v. Strahan,
402 N.J. Super. 298, 317 (App. Div. 2008).
The judge next considered N.J.S.A. 2A:34-23, which provides:
The court may order one party to pay . . . [for the
other's] legal services when the respective financial
circumstances of the parties make the award reasonable
and just. In considering an application, the court shall
review the financial capacity of each party to conduct
the litigation and the criteria for award of counsel fees
that are then pertinent as set forth by court rule. . . . and
shall consider the factors set forth in the court rule on
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counsel fees, the financial circumstances of the parties,
and the good or bad faith of either party.
The judge indicated he "assign[ed] particular weight to factors" one, two,
three, six, seven, eight and nine. He did not state he afforded any one factor
more weight than the others, and he detailed the concept of bad faith in his
opinion. Plaintiff defaulted on six required payments totaling $70,865.75,
which was owed to defendant. Accordingly, the judge properly exercised his
discretion in awarding counsel fees to defendant.
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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