Opinion
DOCKET NO. A-6053-12T2
03-04-2015
G.M., Plaintiff-Appellant, v. A.M., Defendant-Respondent.
G.M., appellant pro se. A.M., respondent pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Kennedy. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-0371-08. G.M., appellant pro se. A.M., respondent pro se. PER CURIAM
Plaintiff G.M. appeals from an order entered by the Chancery Division, Family Part on July 11, 2013, denying his motion to terminate his obligation to pay alimony support to his former wife, defendant A.M. Plaintiff also challenges the court's denial of his application to require defendant to pay thirty-five percent of $35,020 charged by Silver Hill Hospital for medical treatment provided to the parties' eldest son in May 2012.
The trial court also determined: (1) defendant's child support obligation; (2) plaintiff's arrears with respect to both alimony and equitable distribution; and (3) the percentage of each party's financial responsibility involving an array of items related to child care. Finally, the court ordered each party to pay their own counsel fees. Because plaintiff has not briefed any of these issues in this appeal, they are deemed waived. See Gormley v. Wood-El, 422 N.J. Super. 426, 437 n.3 (App. Div. 2011).
The parties separated in 2008 and divorced in October 2009 after twenty years of marriage. Defendant left the marital residence and plaintiff retained physical custody of their three sons. According to plaintiff, each child has "his share of challenges." Plaintiff attributes the breakup of his marriage to "disputes about how to properly care for [their youngest son]."
The Dual Judgment of Divorce (JOD) was entered by the Family Part on October 14, 2009. Paragraphs 2 and 3 of the JOD includes the following provisions with respect to alimony:
Alimony: The Plaintiff shall pay to the Defendant alimony in the amount of $1,154.00 per month. The alimony shall be taxable to the Defendant and deductible by the Plaintiff on his State and Federal income tax returns. The alimony shall be terminated upon the Defendant's death, Plaintiff's death, remarriage of the
Defendant, Defendant's cohabitation with an unrelated adult in a relationship similar to marriage and any other circumstance which would constitute a change of circumstances warranting modification or termination of alimony as prescribed by New Jersey law. The alimony shall be paid directly to the Defendant and subject to an offset as outlined below under the child support section.
Child Support: The Defendant shall pay to the Plaintiff $650.00 per month in child support for the three minor children. The child support will be utilized as an offset against alimony. The Plaintiff shall pay to the Defendant $504.00 monthly which will reflect the alimony less the child support.
[(Emphasis added).]
On June 15, 2010, approximately eight months after the trial court entered the JOD, plaintiff filed a motion seeking to terminate his alimony support obligation to defendant and increase defendant's child support obligation by $200 per month to address the special needs of the parties' middle son. On June 25, 2010, defendant submitted an opposition to plaintiff's motion and filed her own cross-motion seeking an order from the court directing plaintiff to pay alimony arrears and a judicial declaration of emancipation with respect to the parties' youngest son.
The parties' youngest son was born in 2000. Plaintiff described him as "low functioning to severely autistic," "totally nonverbal [and] . . . [s]elf-injurious[.]" He requires "behavioral" medication to manage his daily activities and currently resides in a group home. Despite his minority age status, defendant claimed the court should emancipate this child because he "is on or should be on [Social Security Disability] and lives in a group home[.]"
By order dated July 9, 2010, the trial court entered a comprehensive order consisting of twelve numbered paragraphs addressing the parties' respective applications for relief. The court found plaintiff "has shown a prima facie case" with respect to his motion to terminate alimony, "allowing discovery to demonstrate cohabitation." The court directed the parties "to exchange interrogatories and notice to produce by August 15th 2010 and answered [sic] by September 30, 2010."
The next significant event relevant to the issues raised in this appeal occurred three years later in 2013, when the court conducted a plenary hearing to adjudicate plaintiff's motion to terminate alimony based on defendant's cohabitation with a man. Both parties were represented by counsel. Over a period of three non-sequential days from May to June 2013, the motion judge heard testimony from plaintiff, defendant, and defendant's parents. In this appeal, they have both decided to proceed pro se. However, plaintiff is an attorney admitted to practice law in this State. At the time of the plenary hearing, defendant described herself as a tutor for a learning disabled child.
Despite defendant's lack of formal legal training, we will review the parties' submissions under the same relevant standards of appellate practice.
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As a threshold issue, the trial court denied defendant's application to rely on a document purporting to contain a legally binding definition of "cohabitation" that was materially different from the definition reflected in paragraph 2 of the JOD. As indicated in the July 11, 2013 memorandum of opinion, the motion judge agreed with plaintiff's argument that "the eleventh hour insertion of that issue into the mix denied him due process." Thus, the trial judge accepted plaintiff's argument to review the motion to terminate alimony under the standards established the Supreme Court in Konzelman v. Konzelman, 158 N.J. 185 (1999):
A mere romantic, casual or social relationship is not sufficient to justify the enforcement of a settlement agreement provision terminating alimony. Such an agreement must be predicated on a relationship of cohabitation that can be shown to have stability, permanency and mutual interdependence. The Appellate Division expressed that standard by defining cohabitation as a domestic relationship whereby two unmarried adults live as husband and wife. Cohabitation is not defined or measured solely or even essentially by "sex" or even by gender[.] The ordinary understanding of cohabitation is based on
those factors that make the relationship close and enduring and requires more than 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. 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.
[Id. at 202 (emphasis added) (internal citations omitted).]
Applying these standards to the evidence presented at the plenary hearing, the judge concluded plaintiff failed to establish defendant was cohabitating as the Court defined it in Konzelman. The judge found plaintiff was only able to establish that defendant's vehicle was seen "on frequent and constant occasions" at two specific addresses where a man, identified here only as "Patrick," resided. Defendant admitted to having an occasional "dating" relationship with Patrick in 2009. She described her dating relationship with Patrick as an unstable one - "we were off and on."
Defendant explained she began listing Patrick's address as her own to obtain overnight parenting time with her middle son, who was extremely difficult to interact with due to his neurological disorder. Both parties agreed this young man suffers from autism. Due to this child's highly volatile and often dangerous behavior, defendant testified she was unable to have overnight parenting time with him at her parents' home. Defendant's testimony illustrates the point:
DEFENDANT: I put that address down there for the reason being that I was afraid that if I didn't have a residence, you know . . . a place to put down that I could bring [the child] to that -- that [plaintiff] wouldn't let me have, you know, a visitation for [the child]. Because -- because he insisted on sleep overs and my parents wouldn't let me.
DEFENSE COUNSEL: Okay. Now, back in 2009 in July what was [the child]'s condition?
DEFENDANT: The -- the -- the same as it always was.
DEFENSE COUNSEL: Okay. The same that it is now?
DEFENDANT: Yeah. He -- he was difficult. He would -- he would --
DEFENSE COUNSEL: And you heard your former husband say he was hard to handle. Is that an accurate description?
DEFENDANT: Yeah.
DEFENSE COUNSEL: Okay. And were you visiting with [the child] at that time?
DEFENDANT: I -- I don't remember. I -- I might have been. I don't know. I don't remember.
DEFENSE COUNSEL: Okay. Were you looking for a place to visit [the child] at that time?
DEFENDANT: Yes.
DEFENSE COUNSEL: And where did you find that you could exercise parenting time?
DEFENDANT: Pat -- Patrick said he would let me.
DEFENSE COUNSEL: He said he would let you what?
DEFENDANT: Have [the child] stay over.
DEFENSE COUNSEL: Now, you said your parents wouldn't. Why wouldn't your parents?
DEFENDANT: Because my -- my parents didn't want to deal with the sleepovers, because [the child] would get up at 2:00 in the morning, and make scrambled eggs, and leave the stove on or, you know . . . he -- he would -- he would do dangerous things, you know?
One time at -- at Christmas he -- he took off in his pajamas and with -- with no coat. And -- and, you know, went down a mile away to the train tracks, because he was into trains at that time and he wanted to see the trains go. And -- and the police had to bring him home at -- at -- at 5:00 in the morning. You know, because, you know, he -- he took off -- he took off on us and my -- my parents were afraid of things like that happening, you know, if [the child] was with them. And he wouldn't allow for it, you know, so I -- I put that down there, because, you know, I was afraid if I didn't have a place for [the child], I wouldn't be allowed to see [the child].
DEFENSE COUNSEL: Okay. So, you put Patrick's address down there?
DEFENDANT: I put Patrick's address down there, because I needed a place to see [the child].
DEFENSE COUNSEL: Okay. And did you start taking [the child] to Patrick's place?
DEFENDANT: Yes.
DEFENSE COUNSEL: When?
DEFENDANT: I don't know. At the first opportunity I could.
DEFENSE COUNSEL: And when you took . . . [the child] to Patrick's place where did you stay?
DEFENDANT: I -- I stayed with Patrick and -- [the child] stayed on the couch.
. . . .
DEFENSE COUNSEL: And how often would you do that?
DEFENDANT: On the weekends.
DEFENSE COUNSEL: Where were you residing on the non-weekends?
DEFENDANT: At my parent's [sic] house.
The motion judge accepted this aspect of defendant's testimony as credible. The judge specifically noted:
The need for constant supervision is a circumstance acknowledged by both parties. [The child], who is apparently a substantially-sized man at about 6'2", 245 pounds, could not be managed by . . . the defendant's parents, who are in their mid-to late 70s. Fortunately, [Patrick] was willing to assist the defendant with her supervised parenting with [the child], including overnights, and [defendant] would stay at [Patrick]'s residence with [the child] in order to facilitate her parenting time.
Our review of a trial court's findings of fact is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). We are bound to uphold a trial court's findings as long as they are supported by "adequate, substantial, credible evidence." Id. at 411-12 (citation omitted). We accord an enhanced deferential standard of review to the Family Part because of that court's "special jurisdiction and expertise in family matters[.]" Id. at 413. We will reverse only when the record shows the court's findings are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).
We defer to a trial judge's credibility determination of a witness's testimony because the judge has a "feel of the case" and is in the best position to "make first-hand credibility judgments about the witnesses who appear on the stand[.]" Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citation omitted) (internal quotation marks omitted). However, we do not owe any deference to the judge's legal conclusions and the application of those conclusions to the facts. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Our review of the judge's legal conclusions is de novo. Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007).
With these principles in mind, we discern no legal basis to question the motion judge's factual findings or to interfere with the legal conclusions he reached based on those facts. Plaintiff was unable to present sufficient competent evidence to meet the standard for termination of alimony under Konzelman, supra, 158 N.J. at 202. The motion judge accepted defendant's testimony that she did not cohabitate with Patrick. Although she admitted to having had an intermittent dating relationship with this man, plaintiff did not present any evidence that defendant had the kind of relationship with Patrick the Supreme Court described in Konzelman. See Ibid.
Finally, we reject plaintiff's argument challenging the trial court's decision finding defendant was not liable to pay plaintiff any part of the $35,020 bill issued by Silver Hill Hospital for medical treatment it provided to the parties' eldest son. The evidence supports the judge's finding that plaintiff made this decision unilaterally, without seeking defendant's input or consent. We discern no legal reason to disturb this ruling.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION