Opinion
DOCKET NO. A-3878-13T3
08-28-2015
MARY E. COSHLAND, Plaintiff-Respondent, v. EDWARD COSHLAND, SR., Defendant-Appellant.
Dean R. Wittman argued the cause for appellant (Zeller & Wieliczko, LLP, attorneys; Mr. Wittman, on the briefs). Frank H. Rose argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Rothstadt. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1154-10. Dean R. Wittman argued the cause for appellant (Zeller & Wieliczko, LLP, attorneys; Mr. Wittman, on the briefs). Frank H. Rose argued the cause for respondent. PER CURIAM
Defendant Edward Coshland, Sr. appeals from a Family Part order denying his motion to terminate alimony payments. Defendant filed the motion contending that his former spouse, plaintiff Mary E. Coshland was cohabitating with a boyfriend. In finding defendant failed to prove cohabitation, the motion judge held that although the male was a "frequent visitor and guest," plaintiff did not derive an economic benefit from his presence at the residence. We affirm.
I.
We glean the following from the record before us. After twenty-seven years of marriage and two children, the parties entered into a Property Settlement and Support Agreement (PSSA) in March 2011, which the Family Part judge incorporated into the Final Judgment of Divorce. The PSSA stipulated defendant would pay plaintiff $230 in weekly alimony. However, the agreement provided the obligation would terminate upon plaintiff's "residing with an unrelated person, or vice versa, where [plaintiff] is receiving an economic benefit, for a period of not less than 30 consecutive days."
Following the divorce, plaintiff moved into an apartment in Marlton. But after several rent increases, plaintiff moved into a nearby townhouse recently vacated by plaintiff's two friends, K.C. and her brother J.C., who was also plaintiff's co-worker. The townhouse, individually owned by K.C., was made available to plaintiff because the siblings left the residence to live with their mother who had become ill and needed their care. However, after plaintiff moved in, J.C. began spending two-to-five nights a week at his former home. They "attempted to be romantic — intimate," but at the time of the hearing, each claimed that the relationship was platonic.
When defendant suspected that his wife was cohabitating with J.C., he hired a private investigator to gather information about the relationship. Between March and August 2013, the investigator visited plaintiff's residence seventeen times and observed plaintiff and J.C. arriving at the residence together from the Shop-Rite where they both worked. The investigator also observed J.C. at the apartment alone during the early morning or late evening hours. J.C. later testified that he still kept a key which he used to let himself in and left behind personal items, such as clothing and toiletries.
Defendant filed a motion to terminate his alimony obligation. The motion judge denied defendant's motion without prejudice and scheduled a plenary hearing which took place on March 19, 2014.
At the hearing, the judge heard testimony from the private investigator, defendant's real-estate expert, plaintiff, K.C. and J.C. The real-estate expert testified that plaintiff's rent, $650 per month, was well under the market value based upon comparable properties. Plaintiff testified that J.C. did not contribute to her rent or utilities; however, he did provide free dog-sitting, security services and property maintenance.
While K.C. and plaintiff did not enter into a formal lease agreement, the two had a "written memoranda," which was submitted into evidence at the hearing. It stated in relevant part: "ONLY [plaintiff], her children, [her dogs], [K.C.] and [J.C.] shall occupy the subject residence for more than 20 days [annually] unless the expressed written consent of [K.C.] is obtained in advance." (emphasis omitted)). According to plaintiff's testimony, the language regarding occupants included J.C. and K.C. because,
[w]hen [J.C.] and [K.C.] moved into their mother's house it was because she was ill and as time went on it got worse and worse and I wanted [K.C.] and [J.C.] to know they always had somewhere they could walk away and breath - - respite, I believe would be the word.Plaintiff further testified that J.C.'s and K.C.'s mother had just passed away a week before the hearing and, as a result, she was looking for, "somewhere else to live."
After hearing testimony and oral argument, the judge issued an oral decision denying defendant's motion to terminate alimony. The judge found the PSSA's provision for termination of alimony, requiring both cohabitation with another and an economic benefit, was not met. In reaching this conclusion, the judge reasoned that
[T]he issue is whether or not the proofs presented indicate that [] plaintiff isThe judge went on to state: "The provision[] against cohabitation . . . is to preclude the unfairness of one spouse supporting another spouse who is, in effect, in a family-like or husband/wife or [] equivalent type of relationship . . . that is what is not present in this particular case."
residing with an unrelated person where it — and, where she is receiving an economic benefit and for a period of not less than 30 consecutive days.
The first question I have is, is this a continuing residing within the home and I think even taking the testimony in a light most beneficial to the moving party — to the defendant — there are proofs obviously, and it's not disputed by the parties that [J.C.] spends a significant amount of time in the home.
I think plaintiff testified it was like three days a week, he said it varied from — anywhere from two to nothing to five days a week — in any event, I don't — and I don't think there's any issue but that he frequents and is a frequent visitor and guest in the home, but as we know, the case law says that just mere cohabitation alone is not a basis for termination of a support obligation.
The judge also found plaintiff did not derive an economic benefit from J.C.'s presence, whatever its extent, at the residence. This appeal followed.
II.
Our review of alimony modifications is "limited to whether the court made findings inconsistent with the evidence or unsupported by the record, or erred as a matter of law." Reese v. Weis, 430 N.J. Super. 552, 572 (App. Div. 2013). A "motion to modify an alimony obligation 'rests upon its own particular footing 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.'" Id. at 571-72 (quoting Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009)).
Applying this standard, we turn to the legal issues before us. Defendant contends the judge erred in concluding plaintiff did not derive an economic benefit from her cohabitation with J.C. Moreover, the judge erred in failing to shift the burden to plaintiff to prove there was no economic benefit once defendant established a prima facie case of cohabitation. Plaintiff argues the motion judge properly found there was neither cohabitation nor economic benefit. We agree with the motion judge's decision, and accordingly, we affirm.
In recognizing that "alimony is awarded because of an 'actual economic dependency' and not because of one's status as a spouse," Reese, supra, 430 N.J. Super. at 569 (quoting Lepis v. Lepis, 83 N.J. 139, 155 (1980)), a court "is required to consider, among other things, the actual need of the party to whom the [alimony] award is to be made." Garlinger v. Garlinger, 137 N.J. Super. 56, 63 (App. Div. 1975) (citing N.J.S.A. 2A:34-23). While alimony can be modified if a party demonstrates a significant financial change since the alimony was first awarded, Reese, supra, 430 N.J. Super. at 569, such finding of changed circumstances rests with the discretion of the judge. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006).
One type of changed circumstance is cohabitation by a former spouse. Gayet v. Gayet, 92 N.J. 149, 155 (1983). Cohabitation is typified by the existence of a relationship "shown to have stability, permanency, and mutual interdependence." Konzelman v. Konzelman, 158 N.J. 185, 202 (1999); see also Reese, supra, 430 N.J. Super. at 570 ("Cohabitation involves an 'intimate[,]' 'close and enduring' relationship, requiring 'more than a common residence' or mere sexual liaison." (alteration in original) (quoting Konzelman, supra, 158 N.J. at 202)). Therefore, a former spouse residing with a significant other is not, by itself, enough to terminate alimony, rather, there must be additional proof that the cohabitating spouse received some form of economic benefit from the cohabitation, Reese, supra, 430 N.J. Super. at 557-58, 576, or the supported cohabitant "supports or subsidizes the other under circumstances sufficient to entitle the supporting spouse to relief." Gayet, supra, 92 N.J. at 153-54.
Proving cohabitation creates a rebuttable presumption of changed circumstances. Ozolins v. Ozolins, 308 N.J. Super. 243, 248 (App. Div. 1998). Accordingly, the "burden of proof, which is ordinarily on the party seeking modification, shifts to the dependent spouse" to prove the lack of economic benefit and continued need for support. Id. at 248-49. If the supported spouse fails to meet the burden, alimony should be modified or terminated. Gayet, supra, 92 N.J. at 150; see also Reese, supra, 430 N.J. Super. at 571 ("Modification of alimony is warranted when either the cohabitant contributes to the defendant spouse's support or lives with the dependent spouse without contributing." (citing Garlinger, supra, 137 N.J. Super. at 64)).
In this case, we first review whether the judge was correct in finding a lack of cohabitation, see Reese, supra, 430 N.J. Super. at 570, recognizing that the motion judge did not perfectly articulate reasons for finding a lack of cohabitation. Nevertheless, "we affirm or reverse judgments and orders, not reasons," State v. Maples, 346 N.J. Super. 408, 417 (App. Div. 2002), and note the motion judge addressed "[t]he provisions against cohabitation" and found the family-like nature of the relationship was "not present in this particular case."
Moreover, a separate review of the Konzelman factors which may establish cohabitation, shows that the record falls short of proving a prima facie case of cohabitation. See Konzelman, supra, 158 N.J. at 202 (noting that the factors "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").
Here, defendant does not contend that J.C. lived with plaintiff full-time, rather it is undisputed that he stayed overnight two to five nights a week on average. In any event, there is no evidence in the record of a "close and enduring" relationship between J.C. and plaintiff with "stability, permanency, and mutual interdependence." Konzelman, supra, 158 N.J. at 202. Rather, at the hearing, plaintiff testified that they only "attempted to be romantic — intimate," and now, since the K.C.'s and J.C.'s mother had passed way, plaintiff was looking for, "somewhere else to live." Further, there is no evidence that plaintiff and J.C. shared finances or expenses. And, although there was evidence that J.C. helped maintain the property and that plaintiff's rent was below market value, the nature or meaning of this evidence is convoluted by the fact that J.C.'s sister owned the property and he once lived there.
In sum, apart from proving defendant's frequent overnight stays at plaintiff's residence, defendant failed to present any evidence in support of an "intimate relationship in which" plaintiff and J.C. shared the "duties and privileges that are commonly associated with marriage." Konzelman, supra, 158 N.J. at 202. Therefore, we affirm the judge's decision which found that defendant failed to establish cohabitation.
III.
Finally, we briefly address defendant's contention that the motion judge grossly exceeded her authority in questioning witnesses at the plenary hearing. Specifically, defendant submits the judge improperly interjected questions during defense counsel's examination of the parties and "instructed the witnesses to not answer relevant, probative questions. Defendant asserts these actions "crossed the fine line between impartiality and advocacy," and merit reversal.
A trial court has "wide discretion in controlling the courtroom and the court proceedings," and any "[a]lleged misconduct by a trial judge must be reviewed within the context of the entire record in order to determine whether it had prejudicial impact." D.G. ex rel. J.G. v. N. Plainfield Bd. of Educ., 400 N.J. Super. 1, 26 (App. Div.), certif. denied, 196 N.J. 346 (2008).
Rule 614 of the New Jersey Rules of Evidence "specifically authorizes judges to call or question witnesses 'in accordance with law and subject to the right of a party to make timely objection.'" State v. Taffaro, 195 N.J. 442, 450 (2008) (quoting N.J.R.E. 614). "[I]t is entirely proper for judges to ask witnesses questions to clarify their testimony," or, "when a witness is in severe distress, . . . pose questions to help elicit facts." Id. at 450-51.
While a judge's discretion is not entirely unbounded, see Ridgewood v. Sreel Inv. Corp., 28 N.J. 121, 132 (1958), "[t]hese concerns are less acute in the context of bench trials, where judges serve as fact finders and have more latitude in questioning witnesses." Taffaro, supra, 195 N.J. at 451. But see In re DiLeo, 216 N.J. 449, 481 (2014) (reversing conviction following a bench trial where "[t]he judge himself took on the role of prosecutor . . . by pointedly questioning witnesses and, ultimately, using evidence that he secured through his cross-examination of the defendants to convict them").
In the case before us, the judge served as factfinder. In addition, the judge's use of leading questions to elicit information from plaintiff regarding proof of bill payment falls far short of the judicial impropriety in DiLeo. See id. at 457-59. Therefore, because we grant broad discretion to trial judges to control their courtrooms, and because judges, in general, may question witnesses, we are not persuaded by defendant's argument and find that it lacks merit. See R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION