Opinion
DOCKET NO. A-1948-13T4
05-22-2015
PAMELA KUNDRO, Plaintiff-Respondent, v. CHRISTOPHER KUNDRO, Defendant-Appellant.
The De Tommaso Law Group, L.L.C., attorney for appellant (Michael J. De Tommaso, on the brief). Einhorn, Harris, Ascher, Barbarito & Frost, attorneys for respondent (Matheu D. Nunn and Mark Wechsler, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Hayden. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1302-14. The De Tommaso Law Group, L.L.C., attorney for appellant (Michael J. De Tommaso, on the brief). Einhorn, Harris, Ascher, Barbarito & Frost, attorneys for respondent (Matheu D. Nunn and Mark Wechsler, on the brief). PER CURIAM
Defendant, Christopher Kundro, appeals from the November 18, 2013 Family Part order denying his motion to terminate his alimony obligation to plaintiff, Pamela Kundro, due to her alleged cohabitation with a third party, and granting plaintiff's request for certain relief. For the reasons that follow, we affirm.
We discern the following facts from the record. Plaintiff and defendant were married in November 1989 and had two children together, born in 1994 and 1997 respectively. Plaintiff filed for divorce in 2006, and the judgment of divorce (JOD) was entered on March 25, 2011 after a fourteen-day trial. The JOD required defendant pay plaintiff $3500 per week in alimony, which would terminate upon the "death of either party, remarriage or cohabitation of [plaintiff.]" The parties were also required to exchange their filed tax returns by June 1 of each year, and their W-2s, K-1s, and 1099s by April 1 of each year. Defendant's bonus information and other deferred compensation was required to be provided not later than September 30 of each year or within thirty days of receipt of the bonus.
In its statement of reasons, the trial court noted that during the proceedings the court struck defendant's pleadings and declared him in default due to his "failure to comply with multiple prior Court Orders." As such, the court precluded defendant from testifying, or presenting witnesses or evidence. Even so, the trial court permitted defendant to cross-examine plaintiff and to mark twenty-three items for identification. Consequently, defendant was able to question plaintiff during the trial regarding her alleged cohabitation with Eugene Sheninger. Indeed, the divorce trial court took plaintiff's relationship with Sheninger into account when awarding alimony and counsel fees.
On August 6, 2013, defendant filed a motion to terminate his alimony obligation, arguing that plaintiff's cohabitation with Sheninger constituted a change in circumstances warranting relief. Defendant also requested a plenary hearing to determine the extent of economic interdependence between plaintiff and Sheninger. Additionally, defendant sought to vacate the alimony award based on plaintiff's fraud on the court since the beginning of the divorce action. In support of his claim, defendant filed a certification which relied primarily on evidence from 2005 through 2008.
Defendant also submitted a certification and supporting documentation from a private investigator, who had installed surveillance cameras on or around plaintiff's property from March 20, 2012 through July 9, 2013. Plaintiff cross-moved for various relief and submitted her own certification and one from Sheninger.
After hearing oral argument, the trial court issued its order and written statement of reasons on November 18, 2013. The judge denied defendant's request to terminate his alimony obligation, finding that he failed to meet his prima facie burden establishing that plaintiff and Sheninger were cohabitating. The judge noted that defendant had failed to provide "proof that either party is supporting the other or that Plaintiff and Mr. Sheninger have comingled their funds." The judge further reasoned that despite a fifteen-month investigation, the surveillance showed that plaintiff and Sheninger spent the night together only a handful of times. Moreover, the judge found that there was no proof "that Plaintiff and Mr. Sheninger spend any overnights together during the week, let alone a majority of overnights." Additionally, the judge granted plaintiff's request that defendant execute an IRS authorization so that she could obtain complete copies of his 2011 and 2012 tax returns, ordered defendant to certify as to whether there remained any surveillance equipment on or near plaintiff's property, and to provide copies of all surveillance materials to her. Finally, the court denied defendant's request for attorney's fees and granted plaintiff's request. This appeal followed.
On appeal, defendant argues that the judge erred in finding that he failed to establish a prima facie case of cohabitation. Specifically, defendant contends that the limited economic evidence that he provided was sufficient to order a plenary hearing as such financial information is largely within the control of plaintiff and Sheninger. Defendant also claims that the judge failed to make sufficient findings of fact and conclusions of law to support its order regarding the surveillance reports, IRS authorization, and counsel fee award. We disagree.
We first consider the well-settled principles that guide our review. Alimony and child support "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) (internal quotation marks and citations omitted); see also 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) (internal citations omitted), certif. denied, 203 N.J. 435-36 (2010); see also Stamberg v. Stamberg, 302 N.J. Super. 35, 42 (App. Div. 1997) (citations omitted).
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 v. Konzelman, 158 N.J. 185, 202 (1999). 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, supra, 92 N.J. at 150. Alimony may be modified "when (1) the [cohabitating] third party contributes to the dependent spouse's support, or (2) the [cohabitating] 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)).
Courts examine a number of factors to determine if a cohabitating relationship exists, including whether the parties "liv[e] together, . . . shar[e] living expenses and household chores, and recognition of the relationship in the couple's social and family circle." Reese v. Weis, 430 N.J. Super. 552, 570 (App. Div. 2013) (quoting Konzelman, supra, 158 N.J. at 202). Additionally, courts consider "the length of cohabitation; the duration of receipt of the economic benefits, particularly in light of the length of the prior marriage; and whether the committed cohabitating relationship exhibits the indicia of marriage." Id. at 582; see also Konzelman, supra, 158 N.J. at 202 (noting that "stability, permanency and mutual interdependence" are the hallmarks of cohabitation). The critical factor though is "'the extent of actual economic dependency[.]'" Rose v. Csapo, 359 N.J. Super. 53, 59 (Ch. Div. 2002) (quoting Gayet, supra, 92 N.J. at 154). The economic benefit to either cohabitator must be sufficiently material to justify relief. Gayet, supra, 92 N.J. at 153-54.
"'[A] showing of cohabitation creates a rebuttable presumption of changed circumstances shifting the burden to the dependent spouse'" to show that "he or she remains dependent on the former spouse's support." Reese, supra, 430 N.J. Super. at 570-71 (quoting Ozolins v. Ozolins, 308 N.J. Super. 243, 248 (App. Div. 1998)). The court must focus on the cohabitants' economic relationship to discern "whether one . . . subsidizes the other." Id. at 571 (internal quotation marks and citations omitted). 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
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).]
Here, we agree with the judge that defendant failed to establish a prima facie case of cohabitation. Defendant failed to provide any proof, as opposed to pure speculation, in support of his allegations that plaintiff and Sheninger met in secret, held themselves out as a married couple, and intertwined their finances. Defendant's fifteen-month private investigation revealed few overnight visits between plaintiff and Sheninger and no evidence that they live together. See Konzelman, supra, 158 N.J. at 202 (discussing the importance of living together or sharing a common residence to a determination of cohabitation). While we acknowledge that economic interdependence is difficult to prove, defendant presented no proof whatsoever to support his claim that plaintiff and Sheninger operated a joint business or otherwise shared expenses. Cf. Reese, supra, 430 N.J. Super. at 559-60, 582; Konzelman, supra, 158 N.J. at 202-03 (the cohabitant paid for improvements on the plaintiff's property, shared the cost of vacations, and other household expenses).
Defendant's claim that plaintiff committed an "ongoing fraud upon defendant and the trial court since the commencement of the divorce action" based upon her alleged cohabitation is without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). Suffice it to say that in support of this claim, defendant relied substantially on pre-divorce judgment evidence of plaintiff's affair, which is stale and insufficient. See Faucett, supra, 411 N.J. Super. at 129. We also reject defendant's veiled attempts to relitigate the divorce and award of alimony. It is clear from the divorce trial court's opinion that plaintiff's affair with Sheninger as well as her prior denials of the affair, were taken into account when awarding alimony and counsel fees. We are also satisfied that the trial judge's order regarding the IRS authorization and surveillance materials was supported by the record and followed the applicable legal principles. Moreover, we can infer the judge's reasoning from the undisputed facts in the record. It is undisputed that surveillance cameras were placed on or around plaintiff's property by defendant's investigator. As such, we find that the order requiring defendant to provide any and all copies of the surveillance materials to plaintiff was reasonable. Additionally, the judgment of divorce explicitly required the parties to provide yearly tax returns and other income documentation, and defendant failed to do so. In ordering the IRS authorization, the trial judge was simply enforcing the JOD. See Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 115 (2005) (noting that trial courts have "an array of available remedies to enforce compliance with a court rule or one of its orders.").
Likewise, we conclude that the trial judge did not abuse her discretion in denying defendant's request for counsel fees while granting plaintiff's request. A judge in a matrimonial action may award a party reasonable attorney's fees and costs, and in making that determination "shall consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party." N.J.S.A. 2A:34-23. See R. 5:3-5(c). The decision to award counsel fees "in a matrimonial action rests in the discretion of the trial court[,]" Addesa v. Addesa, 392 N.J. Super. 58, 78 (App. Div. 2007), and will be disturbed "only on the 'rarest occasion,' and then only because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).
In its order concerning counsel fees, the court specified that it considered all the factors of R. 5:3-5(c), including the degree that fees were incurred to enforce existing orders, the reasonableness and good faith of the parties, the results obtained, and the discrepancy in income. The court emphasized its finding that defendant brought this baseless motion in bad faith without sufficient proof. For purposes of awarding counsel fees, bad faith relates to the party's conduct during the litigation. Mani v. Mani, 183 N.J. 70, 95 (2005). The purpose of an award of fees against a "bad faith" litigant "is to protect the innocent party from unnecessary costs . . . ." Yueh v. Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000).
We are satisfied that the court properly applied the factors set forth in Rule 5:3-5(c) and did not abuse its discretion in awarding counsel fees to plaintiff. The record supports the trial judge's finding that defendant's motion was brought in bad faith as a way to litigate that which he was prohibited from doing earlier in the divorce trial because of his misconduct. While the trial court could have been clearer in setting forth its reasons, we find that there was sufficient evidence in the record to support its decision.
We have considered defendant's other contentions and find them without sufficient merit to warrant discussion. 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