Opinion
DOCKET NO. A-3649-13T3
06-30-2015
JOYCE GRIFFIN, n/k/a JOYCE PIZZICHILLO, Plaintiff-Respondent/Cross-Appellant, v. JAMES JOSEPH GRIFFIN, Defendant-Appellant/Cross-Respondent.
Larry S. Loigman argued the cause for appellant. Gregory S. Baxter argued the cause for respondent (Caruso & Baxter, P.A., attorneys; Mr. Baxter, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Accurso. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1952-97C. Larry S. Loigman argued the cause for appellant. Gregory S. Baxter argued the cause for respondent (Caruso & Baxter, P.A., attorneys; Mr. Baxter, on the brief). PER CURIAM
Defendant James Joseph Griffin appeals from two post-judgment Family Part orders: the first denied his motion seeking an order terminating alimony and other relief, and granted in part plaintiff's cross-motion seeking an order finding defendant in violation of litigant's rights and other relief; the second denied defendant's motion for reconsideration. Plaintiff Joyce Pizzichillo, formerly Joyce Griffin, cross-appeals from two paragraphs of two orders, both denying her application for counsel fees.
For the reasons that follow, we reverse the trial court's March 31, 2014 order insofar as it denies defendant the right to a plenary hearing on the issue of plaintiff's cohabitation, and we modify the conditions precedent to defendant taking discovery on that issue. We also reverse the provision of the March 17, 2013 order awarding plaintiff counsel fees. We affirm the trial court's orders in all other respects.
The parties' February 5, 1998 Judgment of Divorce (JOD) terminated their nearly twenty-seven year marriage. The provisions of the JOD relevant to this appeal are these: paragraphs two and three, which awarded plaintiff "one-half interest of $93,618.00 of [d]efendant's pension under the Police and Fireman's Retirement System — the agreed upon value of [d]efendant's interest being $187,236.00" — and mandated that the parties enter into a "Domestic Relations Order" providing that defendant "irrevocably assign that amount of his insurance death benefits to [p]laintiff until such time as her interest in said plan is satisfied in full"; paragraph eleven, which required defendant to pay plaintiff weekly permanent alimony of $225 and stated that defendant's alimony obligation "shall terminate upon the death of either party, [p]laintiff's remarriage or cohabitation"; and paragraph thirteen, which required defendant to irrevocably assign to plaintiff $100,000 of life insurance benefits and provide her annually with proof of payment of the premium unless defendant's obligation was satisfied by his continued enrollment in the Police and Fireman's Retirement System.
Defendant's brief states that the JOD incorporated the terms of the parties' property settlement agreement. The record on appeal does not support that assertion and the JOD does not reference a property settlement agreement.
The parties have engaged in post-judgment motion practice over the years. The motion and cross-motion culminating in this appeal were filed in 2013. In August 2013, defendant filed a notice of motion "for an order terminating and refunding alimony, for counsel fees, and for other relief." In his motion, defendant alleged that plaintiff had been cohabitating with the same man since June 1999. He supported his motion with, among other documents, a private detective's certification summarizing public records in which plaintiff listed her address at the man's house. The investigator also certified that he had observed a Cadillac parked in the open garage of the man's house and the Cadillac bore the same New Jersey registration for which plaintiff was issued parking summonses, as evidenced by municipal court records.
Based on the certifications and public records, defendant asked the court to "terminate alimony, require repayment of all alimony since 1999, and also terminate all other payments, insurance, or any similar obligations." Alternatively, defendant asked for the opportunity to conduct discovery and present his proofs at a plenary hearing.
Plaintiff filed a cross-motion seeking an order that defendant had violated litigant's rights by refusing to pay alimony since June 2011 when he retired and by refusing since the divorce to provide proof that he had named plaintiff as irrevocable beneficiary on the life insurance policies referenced in the JOD.
The court disposed of the motion and cross-motion in a written order dated January 16, 2014, and thereafter, on March 17, 2014, denied defendant's motion for reconsideration and denied in part plaintiff's cross-motion. The court amended the January 16, 2014 order on March 31, 2014, two weeks after it had denied defendant's motion for reconsideration.
The parties have not provided the January 16, 2014 order. They appear to agree that the March 31, 2014 order did no more than clarify one of the twenty-three paragraphs in the earlier order. In any event, due to the parties' failure to provide the January 16, 2014 order, we refer to the provisions of the March 31, 2014 order, even though it was entered after the court denied the motions for reconsideration.
In the March 31, 2014 order, the court denied defendant's motion without prejudice. Although the court was "not confident that [p]laintiff has been completely truthful, as she does not deny [defendant's] cohabitation allegations[,]" the court nonetheless concluded defendant had failed to establish a prima facie case that plaintiff was cohabitating. The court explained that "[t]o prove that the dependent spouse is cohabitating, the supporting spouse offers evidence of an intimate relationship in which the couple has undertaken duties and privileges commonly associated with marriage." The court noted that such duties and privileges included joint back accounts, sharing living expenses and household chores, holding themselves out as a social couple, and sharing common meals. Defendant produced evidence of none of those factors. Consequently, the court determined he had failed to establish a prima facie case that plaintiff was cohabitating. Nevertheless, the court ruled that "[a]fter [d]efendant has fully complied with this [c]ourt's [o]rder, he may have limited discovery for the purpose of determining whether cohabitation has been established . . . . Discovery shall be written only. No depositions may be taken."
The court made its comment concerning plaintiff's candor in the section of its order concerning counsel fees. Although the reason for the court's questioning plaintiff's candor is not entirely clear, we discern that it stems from plaintiff's attack on the procedural aspects of defendant's motion coupled with plaintiff's failure to explicitly deny the substantive allegation that she was cohabitating.
The court granted most of the relief plaintiff sought in her cross-motion. The court explained that "[a]fter fifteen years since the parties' divorce and six . . . enforcement orders, [p]laintiff asserts that she has still not received proof that [d]efendant has irrevocably assigned $100,000 in life insurance benefits to her." The court also noted that, without filing a motion, defendant unilaterally chose to stop paying his alimony obligation based on his belief that when plaintiff began receiving a portion of his pension upon retirement, "she should not receive alimony as well." The court determined defendant was in violation of litigant's rights and granted plaintiff's motion to enforce the conditions of three of the court's previous orders.
To enforce the previous orders, the court permitted plaintiff to serve subpoenas duces tecum and ad testificandum on defendant's previous employer and on the State Division of Pension and Benefits, as well as any entity administering defendant's work-related life insurance benefits, to obtain a copy of defendant's work-related life insurance policy. The court also ordered that defendant be responsible for all costs associated with plaintiff's issuing the subpoenas; that defendant name plaintiff as an irrevocable beneficiary of any life insurance benefits afforded through his prior employer up to the amount of $193,618; and that any order the court entered "in this matter serve as an [o]rder compelling and authorizing the Township of Middletown and/or the Division of Pension and Benefits and/or the entity administering [d]efendant's work related life insurance benefits to remove the current beneficiary if . . . other than [p]laintiff, and to name [p]laintiff, . . . as irrevocable beneficiary . . . in the amount of $193,618.00[.]"
The court further ordered that defendant obtain a policy "in an amount equal to the difference between $193,618.00 and the actual amount of life insurance benefits that [d]efendant [] is provided through his prior employer . . . within ten days of the date of any [o]rder the [c]ourt enters in this matter[,]" and provide written proof within ten . . . days of insurance policies in the amount of $100,000 and $93,618, naming plaintiff as irrevocable beneficiary; and provide plaintiff on October 1 of each year with proof of insurance in the amounts of $100,000 and $93,618.
As to alimony, the court set defendant's arrears at $27,225 for the period between June 15, 2011 and October 11, 2013; and $29,475 as of the date of the motion. The court ordered defendant to pay the arrears at the rate of $225 per week through the Monmouth County Probation Department, and to plaintiff directly until the probation account was established. The court denied plaintiff's application for counsel fees.
Defendant moved for reconsideration. Plaintiff cross-moved for counsel fees on the original motion as well as counsel fees for opposing the motion for reconsideration. On March 17, 2014, the court denied defendant's motion, granted plaintiff's application for counsel fees in the amount of $2000 on the reconsideration motion, and denied plaintiff's application to grant her fees for the cross-motion she had previously filed.
Defendant appealed from the order denying his motion and granting in part plaintiff's cross-motion, as well as from the order denying the motion for reconsideration. Plaintiff cross-appealed from the paragraphs in both orders denying her application for counsel fees.
We begin our analysis with familiar legal principles. The duty to pay alimony is always subject to modification or termination upon a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 146 (1980). "The party seeking modification has the burden of showing such 'changed circumstances' as would warrant relief from the support or maintenance provisions involved." Id. at 157 (quoting Martindell v. Martindell, 21 N.J. 341, 353 (1956)). Such party must make a prima facie showing of changed circumstances before a court will order discovery. See ibid.
Trial courts are afforded wide discretion when deciding motions to modify alimony obligations. Reese v. Weis, 430 N.J. Super. 552, 572 (App. Div. 2013). Such discretion, however, "is not unguided or uncontrolled." Id. at 572 (quotation omitted). Given the wide but not unlimited discretion of trial courts in such matters, our review is limited "to whether the court made findings inconsistent with the evidence or unsupported by the record, or erred as a matter of law." Ibid. (citations omitted).
Here, the trial court's decision as to whether defendant is entitled to a hearing is somewhat equivocal. On the one hand, the court determined that defendant had not established a prima facie case that plaintiff was cohabitating. On the other hand, the court permitted defendant to take limited discovery on that issue. Defendant argues that he not only established a prima facie case, but proved defendant was cohabitating. Plaintiff replies that "[d]efendant's motions below do not address the issue of economic interdependency, but, rather, only focus on time spent by the plaintiff with her boyfriend." We conclude defendant did not establish cohabitation, but is entitled to a hearing on the issue.
Plaintiff also argues that defendant's appeal should be dismissed because defendant failed to include in his appendix "critical filings" such as the trial court's January 9, 2016 and January 16, 2014 amended orders. Rule 2:6-1 requires an appellant to include in the appendix certain enumerated documents as well as "such other parts of the record . . . as are essential to the proper consideration of the issues, including such parts as the appellant should reasonably assume will be relied upon by the respondent in meeting the issues raised." R. 2:6-1(c). Plaintiff did not, however, file a motion to strike defendant's brief for not complying with the rules governing appellate practice. Moreover, Rule 2:6-3 provides that "when a joint appendix has not been filed, the respondent may prepare an appendix, conforming to the requirements of R. 2:6-1, insofar as applicable, and containing such parts of the record not included in the appellant's appendix as the respondent considers necessary to the proper consideration of the issues." Accordingly, we find no merit in plaintiff's argument.
Our Supreme Court has held that "an agreement between the parties to allow cohabitation to terminate alimony obligations can be a valid basis for discontinuing alimony, without regard to the economic consequences of that relationship[,] . . . provided that both parties have agreed to the contingency." Konzelman v. Konzelman, 158 N.J. 185, 196 (1999). Thus, where the parties have knowingly and voluntarily agreed that a dependent party's cohabitation will terminate a supporting party's alimony obligation, cohabitation constitutes a changed circumstance warranting a modification of alimony. Id. at 197. The question in this case is whether defendant made a sufficient showing to warrant a plenary hearing.
Neither party argued before the trial court, nor has either party argued before us, that the provision in the JOD allowing plaintiff's cohabitation to terminate defendant's alimony obligation is invalid because it was not consensually, voluntarily, or knowingly agreed upon.
Cohabitation requires more than "[a] mere romantic, casual or social relationship[,]" and it also requires "more than a common residence, although that is an important factor." Id. at 202. Rather,
[c]ohabitation 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.
[Ibid.]
Here, defendant produced sufficient evidence on the motion record to permit the court to infer that plaintiff shared a common residence with a man, a factor recognized by the Supreme Court as "important" in determining the issue of cohabitation. That our Supreme Court has characterized common residence as an important factor in establishing cohabitation raises an interesting question as to whether common residence alone establishes a prima facie case. We recognize the difficulties of developing proofs of things such as intertwined finances, joint bank accounts, shared living expenses and household chores, and recognition of the relationship in the couple's social and family circle, without either invading a former spouse's privacy or taking some discovery on the issue.
Plaintiff admits in her appellate brief that the man who owned the home she once listed as her address is her boyfriend. The appellate record is not clear as to whether plaintiff so informed the trial court. Neither party has provided the certification she submitted in opposition to defendant's motion. --------
The trial court also appears to have recognized the problem. Although the court determined defendant had not demonstrated a prima facie case of cohabitation, it permitted him to take limited written discovery on the issue.
We need not resolve the question of whether common residence alone establishes prima facie proof of cohabitation, however, because plaintiff did not deny defendant's allegation that she was cohabitating. Defendant's proof of common residence with a man coupled with plaintiff's non-denial of defendant's cohabitation allegations established a prima facie case entitling defendant to discovery.
Having said that, and recognizing that the parties are entitled to discovery, we find no abuse of the court's discretion in preliminarily restricting discovery to written discovery. The restriction provides some level of protection of the privacy interests of all concerned and allows for the possibility that with appropriate written discovery the issue can be resolved on a competent motion record without a plenary hearing. We do not discern from the court's exercise of discretion in restricting discovery that the court will not lift that restriction on an appropriate showing by either party of a need to expand the manner of discovery.
With two exceptions, we also conclude the court exercised its discretion appropriately by conditioning defendant's right to take written discovery on his compliance with the court's order. As the court noted, during more than fifteen years since the divorce, and notwithstanding six enforcement orders, defendant has still not provided proof that he has complied with the JOD's provisions concerning life insurance policies. Defendant has no right to insist that plaintiff comply with the court's orders while he unilaterally decides which orders he will comply with and which orders he will disregard. Defendant has offered no legitimate reason why he has not made the irrevocable assignment to secure the pension distribution as required by the JOD, and why he has not provided proof that he has designated plaintiff beneficiary of a $100,000 life insurance policy.
Yet, defendant may not qualify for life insurance and he may not be financially able to comply with those provisions of the order requiring him to make monetary payments. If such is the case, he should not be deprived of the opportunity to demonstrate that he is no longer obligated to make alimony payments, particularly in view of his having established a prima facie case of cohabitation. Moreover, if his disregard of previous court orders has affected his ability to comply with the JOD, the court can conduct a hearing and fashion remedies, such as those it imposed in the March 31, 2014 order concerning existing insurance policies. The court may also consider, if appropriate, entering a judgment for plaintiff so that she can perfect a lien against any real property defendant owns.
To summarize, defendant is required to comply with the court's March 31, 2014 order in its entirety. His right to serve written discovery on plaintiff is conditioned upon his compliance with the order, with the exception of paragraph nine, which requires him to obtain a life insurance policy, and paragraphs fourteen and fifteen, which require him to make payments on alimony arrears. Plaintiff must comply with paragraphs nine, fourteen and fifteen, and shall be subject to the order's sanctions for non-compliance after being afforded due process; but he shall not be deprived by reason of his non-compliance with those paragraphs of the opportunity to take discovery on the issue of plaintiff's cohabitation.
In view of our conclusion that defendant established a prima facie case of cohabitation, we also reverse the award of counsel fees to plaintiff for having to oppose defendant's motion for reconsideration. We have considered the parties' remaining arguments and found them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION