Opinion
DOCKET NO. A-2876-11T1
05-14-2014
CATHLEEN QUINN, Plaintiff-Respondent/Cross-Appellant, v. DAVID J. QUINN, Defendant-Appellant/Cross-Respondent.
Bonnie C. Frost argued the cause for appellant/cross-respondent (Einhorn, Harris, Ascher, Barbarito & Frost, attorneys; Ms. Frost, on the brief). John V. McDermott, Jr., argued the cause for respondent/cross-appellant.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi, St. John and Leone.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-0256-05.
Bonnie C. Frost argued the cause for appellant/cross-respondent (Einhorn, Harris, Ascher, Barbarito & Frost, attorneys; Ms. Frost, on the brief).
John V. McDermott, Jr., argued the cause for respondent/cross-appellant. PER CURIAM
Several years after divorce, husband David J. Quinn filed a motion seeking to enforce a term of the divorce settlement agreement stating that his obligation to pay alimony would terminate upon wife Cathleen Quinn's "cohabitation, per case or statutory law." After a lengthy evidentiary hearing, the trial court suspended alimony for the period of wife's cohabitation, which she had ended soon after husband filed his motion, but the court declined to terminate alimony altogether. Husband appeals from that decision.
Wife denied she had cohabited, despite overwhelming documentary and testimonial evidence proving such a relationship. The court concluded that wife was not credible in her testimony and that she had litigated the issue in bad faith and prolonged the hearing. The court awarded husband more than $145,000 in attorney's fees in addition to suspension of his alimony obligation. The court permitted husband to recoup the overpaid alimony and the attorney's fees by reducing his future alimony payments to one half the required amount until he had recovered the full amount owed. Wife cross-appeals, raising several challenges to the trial court's decision.
We reject wife's cross-appeal in its entirety. As to husband's appeal, we caution against the equitable remedy crafted by the court being utilized to circumvent an enforceable settlement agreement, but we affirm the order from which his appeal is taken because it did not exceed the court's equitable powers and discretionary authority.
I.
The parties married in 1983 and divorced in 2006. They had a daughter and a son, both in their twenties at the time of the post-divorce litigation. During the marriage, husband worked as an insurance executive and wife as a homemaker and a school cafeteria cook. Husband's income at the time of the divorce was about $2 09,000 per year and wife's about $21,500. The divorce settlement agreement required that husband pay permanent biweekly alimony of $2,634 (about $68,500 per year), to be adjusted annually in accordance with increases in the consumer price index. Husband was also required to pay child support to wife, which at the time of the divorce was $360 per week and continued in a lesser amount for the younger child at the time of the post-divorce litigation.
At the time the post-divorce hearing was concluded in 2011, adjustments to the alimony had raised it to $2,799 every two weeks (about $72,800 per year). Husband's income at that time was conceded to be at least $225,000. Wife's income apart from alimony had dropped to less than $20,000 because she was then working part-time as a cook in the county jail.
Most pertinent to the issues on appeal, the 2006 divorce agreement provided that: "Alimony shall terminate upon the Wife's death, the Husband's death, the Wife's remarriage, or the Wife's cohabitation, per case or statutory law, whichever event shall first occur."
After the divorce in January 2006, wife purchased a house in Wantage, where she lived with the two children. In August 2007, she began an exclusive romantic relationship with John Warholak. The nature of that relationship was the subject of the lengthy evidentiary hearing. The hearing was prompted by husband's March 4, 2010 motion requesting various forms of relief, including the termination of alimony on the ground that wife was cohabiting with Warholak. Wife responded with a cross-motion denying cohabitation and seeking various forms of relief pertaining to financial matters.
In the initial oral argument for the motions in April 2010, the court noted conflicting factual assertions in the certifications submitted in support of and in opposition to the motion to terminate alimony. Husband's attorney argued that documentary evidence, together with wife's admissions such as they were, proved she was cohabiting with Warholak. Wife's attorney argued he would show there was no cohabitation. The court ruled that an evidentiary hearing would be conducted. Both attorneys agreed with the judge that the hearing should focus on establishing or refuting indicia of cohabitation as set forth by the Supreme Court in Konzelman v. Konzelman, 158 N.J. 185 (1999).
The court permitted discovery to be conducted before the evidentiary hearing, but it also warned the attorneys and the parties that the direct conflict in factual assertions, and the likelihood of one side or the other having presented false certifications, inclined the court to award attorney's fees in favor of the party that prevailed at the hearing. Counsel for wife agreed that an award of attorney's fees to the prevailing party would be warranted.
The evidentiary hearing began in August 2010 and continued for the next eleven months on seventeen non-consecutive court dates. More than ninety exhibits were presented in evidence, and eight witnesses testified — the parties, both children, wife's supervisor at her school cafeteria job, an insurance agent, and even two friends of the parties' daughter. Warholak was not one of the eight witnesses, although wife continued to date him during some of the time that the hearing was conducted.
On October 20, 2011, the court issued a detailed written decision by which it found that husband and wife had entered into their 2006 divorce agreement knowingly and voluntarily after they had negotiated its terms with the help of independent counsel. Wife had testified at the time of the divorce, and also confirmed at the post-divorce hearing, that she entered into the settlement agreement voluntarily, that she understood its terms, and that the agreement was fair and equitable.
The court further found that wife and Warholak had cohabited from January 2008 through April 2010. It found much of wife's testimony at the hearing not to be credible. The court also found the testimony of the parties' daughter credible in describing the living arrangements at the Wantage home, and the testimony of the parties' son not credible on the same subject.
Despite rejecting much of wife's factual testimony, the court accepted her claim that she had ended her living arrangement with Warholak in April 2010; that is, one month after husband filed his motion. According to wife, she continued to see Warholak after he was no longer staying overnight at the her home, but the dating relationship had also ended by the early part of 2011.
The court concluded that husband should not have been required to pay alimony during the twenty-eight months that wife cohabited with Warholak. But the court declined to terminate alimony entirely. Instead, it ruled that wife's ending of the cohabitation and her financial need for alimony permitted the court, in applying its equitable powers, to suspend alimony during the period of cohabitation rather than to terminate it. The court allowed husband to reduce his continuing alimony payments by 50% for fifty-six months until he recouped the alimony payments he had made during the time of wife's cohabitation.
Finding that wife had litigated the matter in bad faith and had falsely denied cohabitation, the court awarded attorney's fees of $145,536 to husband, and allowed him to recoup that amount as well through his future alimony payments. The effect of the court's decision was to authorize husband to pay half the amount of alimony he would otherwise have to pay for a period of about nine years as the remedy for wife's twenty-eight-month cohabitation with Warholak and subsequent litigation of that issue in bad faith.
II.
We will address wife's cross-appeal first. Wife contends that the trial court erroneously modified husband's alimony obligation because: (1) she was not cohabiting with Warholak within the legal meaning of that term, there being insufficient evidence of a fulltime living arrangement or of economic benefit to wife in her relationship with Warholak; (2) the court abused its discretion in crediting the testimony of the parties' daughter over wife's testimony and that of the parties' son; (3) the cohabitation term of the divorce settlement is unenforceable because it is vague, and wife did not understand it and agree to it knowingly; and (4) wife's constitutional right of privacy and her statutory right against gender discrimination were violated by enforcement of the cohabitation term. Wife also contends emphatically that the court abused its discretion in awarding $145,536 in attorney's fees to husband instead of awarding attorney's fees to her. We reject all of these contentions.
A.
"Alimony in New Jersey is primarily governed by statute." Gayet v. Gayet, 92 N.J. 149, 150 (1983) (citing N.J.S.A. 2A:34-23). The Legislature has directed that alimony terminates upon the remarriage of the recipient spouse. N.J.S.A. 2A:34-25. There is no statutory provision, however, pertaining to termination of alimony because of the recipient's cohabitation with another in the absence of marriage.
In Gayet, supra, 92 N.J. at 153-54, our Supreme Court held that alimony should be terminated or modified only where such cohabitation results in an economic benefit to the recipient spouse. See also Garlinger v. Garlinger, 137 N.J. Super. 56, 64 (App. Div. 1975) (Alimony should be modified because of cohabitation only when there is an economic benefit to the dependent spouse or it appears that the alimony is being used to support the cohabitant.). Gayet, however, did not involve a divorce settlement agreement that specifically addressed cohabitation, as in this case.
In Konzelman, supra, 158 N.J. at 196, which was decided after Gayet and more than six years before the divorce in this case, the Supreme Court stated: "The enforcement of a cohabitation agreement terminating alimony comports generally with the legislative and public policy of our matrimonial laws." The Court held that such a contractual term would be enforceable provided that the settlement agreement is shown to be "voluntary and consensual, based on assurances that these undertakings are fully informed, knowingly assumed, and fair and equitable." Id. at 198.
Furthermore, where an enforceable cohabitation agreement provides for termination of alimony, the economic needs of the dependent spouse at the time of termination are not a relevant factor. Id. at 197. Thus, the holding of Gayet regarding the economic basis of terminating alimony does not apply where the parties voluntarily and knowingly entered into a settlement that provides for termination of alimony upon cohabitation, and the settlement is determined to be fair and equitable.
What constitutes cohabitation is often the disputed issue. In Konzelman, the Court discussed the meaning of cohabitation, as distinguished from a romance or a dating relationship that might include sexual intimacy and overnight stays. Id. at 202. Cohabitation must have "stability, permanence and mutual interdependence," and it occurs when there is "an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage." Ibid. Living together and personal intimacy are the most important factors. Additional duties and privileges can include "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. The seriousness and duration of the relationship are crucial to finding cohabitation. Id. at 203.
In this case, the evidence presented at the hearing proved overwhelmingly that wife was cohabiting with Warholak. That evidence included the following.
In August 2007, wife began dating Warholak. By January 2008, Warholak was sleeping overnight at wife's Wantage home, and keeping his clothing, personal belongings, and medications there, although he also maintained his own residence in Greenwood Lake, New York. Wife and Warholak shared her bedroom. She acknowledged at the hearing that they had an intimate relationship and that she loved Warholak. By May 2009, wife was wearing a "promise" ring on her ring finger given to her by Warholak. The ring symbolized his commitment to her.
Warholak was at the Wantage home many days of the year and at all hours of the day and night, whether wife was home or not. He used the telephone to call his relatives in other states. He gave the address as his mailing address. He signed for wife's deliveries and, in fact, signed for husband's certified mailing of the March 2010 motion that initiated this litigation. He did yard work there, built a shed on the property, and made improvements to the home.
According to the testimony of the parties' daughter, Warholak stayed at the Wantage home the majority of the week every week in 2008 and 2009. Although the daughter came home from college only about once every two weeks, she had the impression that Warholak lived at her home because of her frequent telephone conversations with her mother as well as her personal visits. Wife confided to her daughter that she and Warholak planned to stay together permanently, although they would not get married because they did not want her alimony payments to end.
In May 2009, the daughter graduated from college and then lived at the Wantage home for about six months, until the end of November 2009. During that time, she saw Warholak living fulltime at that home, storing his belongings there, and sharing wife's bedroom and bed. Warholak had set up his elaborate model train display in the basement. Two of the daughter's friends testified at the hearing and confirmed Warholak's presence in the home when they visited and that Warholak showed them his model railroad set in the basement.
In her April 2010 certification in opposition to husband's motion, wife stated that Warholak did not keep a model train set in the basement of her home. This was one stark example of the kind of factual dispute that prompted the trial court to express its inclination to grant attorney's fees if the evidentiary hearing proved one party or the other to be filing false certifications.
At about the time the daughter graduated from college, husband dropped her off at the Wantage home following a visit with her. Warholak was outside doing yard work. He approached husband as he sat in his car and berated him as a bad father. At another time, wife left a telephone message for husband in which she said she and "John" had been reviewing their bills together, meaning bills for her home and other living expenses. During this litigation, wife attempted to say she was referring to her attorney when she mentioned "John," but she had to abandon that false explanation.
Wife and Warholak participated in the lives of each other's families. They traveled to South Carolina and to Canada to care for Warholak's mother in her two homes. Warholak's family members, including his mother and siblings, were invited to parties at the Wantage home. Wife and Warholak hosted his brother and sister-in-law for a week-long visit at the home. Wife also hosted graduation parties at her home for Warholak's two college-age sons. On Facebook, wife referred to Warholak's sons as her step-children. Both of Warholak's sons spent time at the Wantage home and kept clothing there. One of them began sleeping in the daughter's bedroom after she left for college. On his Facebook page, he referred to wife as "Mama Q." All four of wife's and Warholak's children referred to one another as siblings.
Warholak involved himself deeply in wife's problems at her job as a cook employed by the West Milford Board of Education. Sharon Sieber was wife's supervisor. Sieber testified that wife introduced Warholak to her as her boyfriend. Ten to fifteen times during the 2008-2009 school year, Warholak called Sieber in the evening or at night to report that wife would not be able to work the next day.
Also, in about September 2008, Warholak presented to Sieber a handwritten series of twenty questions inquiring about Sieber's work policies and practices, with check-off spaces for potential answers that he had pre-designated. The introductory paragraph of his written questions to Sieber stated: "Please complete the following questions and return to me" in a self-addressed envelope with the Wantage address; and he closed the correspondence with his assurance that "I will follow up." At a June 24, 2009 meeting of the West Milford Board of Education at which staff layoffs were the subject of discussion, Warholak spoke passionately about wife's alleged mistreatment by her employer, first identifying himself as a resident of the Wantage address.
In August 2009, wife's father died. An obituary referred to Warholak as wife's "partner." According to the daughter, wife had used that term when she introduced Warholak to family members at the funeral. After the father died, Warholak participated in the care of wife's mother.
The couple vacationed together. They went on cruises each fall in 2008 and 2009, and had one scheduled for the fall of 2010, which wife canceled after husband filed his motion to terminate alimony. Wife paid for the cruises, claiming at the hearing that Warholak had reimbursed her for his share, although she provided no documentation to prove the reimbursement.
In February 2010, wife and Warholak went to Florida for a vacation and then participated together in the purchase of a timeshare in Florida. Although wife claimed at the hearing that she had nothing to do with the Florida timeshare, one of her Facebook postings indicated otherwise. Documentary evidence at the hearing showed that she and Warholak had signed as co-borrowers for the timeshare, and she had used her credit card to make the down payment. She also made monthly installment payments until Warholak started making the payments in August 2010. Wife listed the timeshare on her April 2010 case information statement (CIS) filed with her cross-motions in this litigation.
The strength of this and other evidence at the hearing amply contradicted wife's claims that she was not cohabiting with Warholak.
Wife's attorney agreed before the evidentiary hearing that the meaning of cohabitation established in Konzelman, supra, 158 N.J. at 202-03, would control the trial court's decision. As wife's factual assertions were challenged and proven to be false, counsel shifted the emphasis of his arguments and claimed that the term cohabitation should be interpreted in accordance with wife's more restrictive understanding. Wife testified that she understood cohabitation to mean she would be living with a man "fulltime," as if they were married. She argues on appeal that her relationship with Warholak was not at that level, in particular, because Warholak still owned a home in New York State and stayed there at times. She also argues that the language used in the divorce agreement — "cohabitation, per case law" — is unduly vague and indefinite and should not be enforced. Wife points to the absence in the agreement of a designated length of time for living together and of any description of a cohabiting partner. We find no merit in these arguments.
First, since wife and Warholak lived together for twenty-eight months, there was no viable issue that the cohabitation was of too short a duration. Second, since wife admitted sexual intimacy and a committed romantic relationship which she intended to be permanent, the type of partner involved in the cohabitation was also not an issue.
The criteria established by the Supreme Court in Konzelman constituted the legal meaning of the term cohabitation at the time wife and husband entered into their settlement agreement. They bound themselves to that meaning, and arguably to any subsequent case law that elaborated on the legal meaning of the term. Wife's testimony that she believed cohabitation meant being together with Warholak every single night was contradicted by her own pre-motion statements and actions, in which she expressed a belief that her alimony might end because of her relationship with Warholak. In fact, her futile efforts at deception and minimization at the hearing showed that she understood very well what would constitute cohabitation under her divorce agreement.
Wife also argues there was no proof of her benefitting economically from her relationship with Warholak. In Reese v. Weis, 430 N.J. Super. 552, 577-80 (App. Div. 2013), we explained that economic benefits resulting from cohabitation can be both "direct" and "indirect," the latter consisting of shared expenses and contributions of joint living that cannot be precisely measured but nevertheless exist. Although shared economic advantages are relevant as indicia of cohabitation, husband was not required to prove economic benefit to wife because the divorce agreement fixed cohabitation as a ground for terminating alimony. See Konzelman, supra, 158 N.J. at 197. Moreover, in those cases controlled by the holding of Gayet, supra, 92 N.J. at 153-54, it is the dependent spouse's burden to prove the absence of economic benefit in living together with an intimate partner. Reese, supra, 430 N.J. Super. at 581; Ozolins v. Ozolins, 308 N.J. Super. 243, 248 (App. Div. 1998).
Reese v. Weis did not involve a divorce agreement to terminate or modify alimony upon cohabitation.
Here, a precise measure cannot be made of wife's indirect economic benefit from Warholak's presence in her house and in her life, including for example his building improvements to the property and his attempts to assist her in employment disputes. Furthermore, there can be no doubt that Warholak benefited economically from residing in a home financed in part by husband's alimony. Wife testified that she paid all the household bills from her funds, which included the alimony payments. To the extent economic benefit may be significant in defining what constitutes cohabitation, the evidence in this case did not contradict that wife and Warholak were cohabiting.
We reject without extensive discussion, R. 2:11-3(e)(1)(E), wife's argument that the trial court erred in crediting the testimony of the parties' daughter because she was in college much of the time and did not have personal knowledge of her mother's relationship with Warholak. The daughter explained the sources and limits of her knowledge, and the court found her testimony to be credible. We defer to the trial court's credibility findings. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007); Cesare v. Cesare, 154 N.J. 394, 412 (1998).
Likewise, we reject without extensive discussion wife's argument that enforcing a cohabitation term is invasive of a woman's constitutional right to privacy and also discriminates against women in violation of our State anti-discrimination statutes. The Supreme Court considered and rejected a similar argument in Konzelman, supra, 158 N.J. at 200-02. It stated: "The contractual termination of alimony upon cohabitation is not violative of either statutory or public policy." Id. at 196.
Furthermore, we have no empirical evidence that cohabitation clauses unfairly disadvantage women. Not only are alimony laws in this State facially gender-neutral, but we have no way to know from this record whether such cohabitation terms discriminate unfairly against women because they in fact hinder a dependent spouse's ability and inclination to enter into a new enduring relationship. Theoretically at least, our alimony laws impose an obstacle to entering into a new enduring relationship upon the paying spouse, who must continue to pay alimony while considering whether to take on additional financial responsibilities with a new partner and a new family. Wife argues that dependent spouses are most often women, but so are new spouses of ex-husbands who pay alimony, and they too must find a way to make financial ends meet in the circumstances of the new relationship.
The trial court correctly found that wife had cohabited with Warholak for at least twenty-eight months. It also had sufficient evidence from which to conclude that wife had entered into the divorce settlement agreement knowingly and voluntarily, with the assistance of independent counsel, and that the settlement agreement was fair and equitable.
B.
Wife argues that the trial court abused its discretion in awarding attorney's fees to husband rather than to her.
Generally in matrimonial cases, the shifting of attorney's fees and costs from one party to the other rests in the discretion of the trial court. Williams v. Williams, 59 N.J. 229, 233 (1971); Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004).
Rule 5:3-5(c) lists the factors that the court must take into consideration in deciding whether to award attorney's fees. Wife argues that the trial court should not even have considered husband's application for attorney's fees because he refused to provide a CIS, thus preventing the court from evaluating the first two listed factors — the financial circumstances of the parties and their ability to pay their own or the other party's fees. However, husband acknowledged that he earned at least $225,000 annually, and he conceded that he had the ability to pay attorney's fees. In fact, he had already paid his own attorney's fees for this litigation, which were originally billed at $232,428, but had been reduced voluntarily by husband's attorneys to $145,536. Because the court knew from the evidence the incomes of the parties and husband conceded his ability to pay, his CIS was not needed. His financial circumstances were not relevant to any of the other factors listed in Rule 5:3-5(c).
We also reject wife's argument that husband was not the prevailing party because his alimony obligation was not terminated. Husband proved the disputed issue at the evidentiary hearing — cohabitation. Despite the court's determination to apply equitable principles and thus to rescue wife from economic deprivation, husband was clearly the prevailing party at the hearing. In addition, the court's awarding of attorney's fees to husband was in conjunction with and an integral part of its equitable determination not to terminate alimony permanently.
Wife argues in hindsight that she was the prevailing party because she maintained the right to receive alimony permanently into the future, but that argument does not accurately reflect the purpose of the hearing and the position she took that necessitated the hearing. Had wife conceded in April 2010 the factual evidence showing that Warholak was living in her home and that she had a committed and enduring relationship with him, the court could have focused on her legal arguments about what constitutes cohabitation. It could have considered much earlier the appropriateness of the termination remedy provided in the settlement agreement after wife claimed that the cohabitation had ended. The length, complexity, and costs of the litigation would have been vastly reduced.
Instead, wife pursued a strategy of deception and denial. She contradicted facts that were beyond dispute because of the documentary evidence, including her own Facebook postings and those of the children. Her initial and continuing denials necessitated extensive litigation — multi-day depositions and an evidentiary hearing that lasted a year and involved many court appearances. Wife's unseemly attack on her own daughter's credibility when husband first filed his motion, and subsequently at the hearing, resulted in calling upon the young people to testify at the hearing, as well as wife's work supervisor. The trial court reacted reasonably in attributing bad faith to wife's litigation efforts.
The Legislature has unmistakably expressed its intent that the good or bad faith of litigants in matrimonial actions should be a significant consideration in determining whether to award attorney's fees. See N.J.S.A. 2A:34-23. In Kothari v. Kothari, 255 N.J. Super. 500, 513 (App. Div. 1992), we noted that the Legislature promptly amended N.J.S.A. 2A:34-23, and thus effectively overruled our earlier decision in Darmanin v. Darmanin, 224 N.J. Super. 427, 432 (App. Div. 1988), which had rejected a spouse's bad faith as a basis for granting attorney's fees to the other spouse.
Here, the trial court analyzed the relevant factors listed in Rule 5:3-5(c). It found the most important factor to be wife's lack of candor and her false insistence that she had not cohabited with Warholak. Bad faith certainly includes "an intent to mislead or deceive," such as by "the intentional misrepresentation of facts." Borzillo v. Borzillo, 259 N.J. Super. 286, 292, 294 (Ch. Div. 1992). It also includes unnecessary prolonging of litigation. See Marx v. Marx, 2 65 N.J. Super. 418, 429 (Ch. Div. 1993).
Furthermore, the trial court's award of $145,536 was not so disproportionate to the amount in dispute that it constituted punishment of wife for litigating the matter. See Chestone v. Chestone, 322 N.J. Super. 250, 259 (App. Div. 1999). It was a shifting of the reasonable expenses of litigating the matter to the party that had proceeded in bad faith and was responsible for the heavy costs of the legal representation.
In that vein, wife's own attorney's fees for the litigation were billed at more than $116,000, of which she had paid $110,000. Wife was the main reason that the litigation cost more than $250,000 in combined attorney's fees and expenses for both parties. Considering her role in causing that expense, we reject without further discussion, R. 2:11-3(e)(1)(E), wife's contention that she was entitled to reimbursement of her attorney's fees from husband.
The court reviewed the details of the time sheets and fees charged by husband's counsel, and it determined it would exclude certain items and charges. But the total of the court's exclusions from the original $232,428 billed was less than the amount that husband's attorneys had voluntarily discounted from the bill. The court found the $145,536 fees paid by husband to be reasonable in light of the length and complexity of the litigation and the prior discounting of the bill.
Finally, the court considered wife's limited income and inability to pay the full amount of husband's fees. Instead of requiring immediate reimbursement to husband, the court allowed wife to pay the debt without interest over approximately five years, and it did not require that she actually make payments. Rather, husband receives credits on his alimony obligation to her.
Having considered the record and the court's written explanation of reasons for awarding husband attorney's fees, we conclude the court did not abuse its discretion.
III.
On husband's appeal, we must determine whether the trial court erred as a matter of law in suspending rather than permanently terminating alimony because of wife's cohabitation. The divorce settlement agreement provides that "[a]limony shall terminate upon . . . the Wife's cohabitation, per case or statutory law." There is no reference to cohabitation that has come to an end and no provision for suspension during the period of cohabitation.
The court declined to terminate alimony because wife depended on it for support, and because the cohabitation and even the dating relationship with Warholak had ended by the time the hearing was completed. The court referred to the Supreme Court's statement in Konzelman, supra, 158 N.J. at 203, disclaiming any intent to address "what would happen if the cohabitation came to an end," and also the Supreme Court's affirmation that divorce settlement agreements "remain[] subject to judicial supervision." The court hinged its chosen remedy on those statements and generally the family court's equitable powers. It also viewed the ending of the cohabitation as a changed circumstances under Lepis v. Lepis, 83 N.J. 139 (1980), that permitted reinstatement of alimony based on the relative disparity of the parties' financial means. After noting that husband had the ability to continue paying alimony, the court crafted a partial remedy that would not deprive wife permanently of the financial support she needed from husband after their twenty-two-year marriage.
Of course, the main point of Konzelman, supra, 158 N.J. at 193-94, is that a voluntary and knowing settlement agreement, unless determined to be unfair and inequitable, should be enforced in accordance with its terms. Accord Weishaus v. Weishaus, 180 N.J. 131, 143 (2004); Petersen v. Petersen, 85 N.J. 638, 645 (1981). We have a "'strong public policy favoring stability of arrangements' in matrimonial matters." Konzelman, supra, 158 N.J. at 193 (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)). "The prominence and weight we accord such arrangements reflect the importance attached to individual autonomy and freedom, enabling parties to order their personal lives consistently with their post-marital responsibilities." Ibid. Taking into account these statements of our State's policy in matrimonial matters, a court should ordinarily enforce a fair and equitable settlement, including a provision that terminates alimony because of cohabitation.
Nevertheless, in enforcing a cohabitation provision such as the one before us, the family court maintained its equitable jurisdiction and its responsibility to ensure fairness. Id. at 201. While the economic detriment to the dependent spouse should not ordinarily prevent enforcement of a valid cohabitation provision, the court here could consider all the relevant factors to determine whether an alternative remedy was more equitable in the particular circumstances of this case. Such a case should be rare, and the court should have a compelling reason to adopt a remedy other than termination when the parties' agreement specifies that remedy.
In this case, the term cohabitation was briefly mentioned in the settlement agreement as a ground for termination of alimony. The only relevant description given in the agreement was a general reference to "per case or statutory law." Since there is no statute that applies, only case law is relevant to interpreting the phrase. As we have said, the most pertinent case law is Konzelman and its description of what cohabitation means. The parties bound themselves to that understanding of the term, at least as long as it is not supplanted or modified by future case law.
Konzelman, however, includes the Supreme Court's disclaimer of intent to determine the rights of the divorced parties if cohabitation ends. That limitation of Konzelman is also part of the case law to which the parties in this case bound themselves. Their settlement agreement did not exclude or otherwise address the possibility that alimony could be reinstated in circumstances where the dependent spouse is no longer cohabiting, where she needs alimony to maintain a semblance of the marital lifestyle, and where the supporting spouse will not have substantial difficulty in continuing to pay alimony. While the family court should avoid permitting a dependent spouse to dangle back and forth between cohabitation and dependency on the former spouse, we hesitate to deprive the court of its authority to exercise discretion and equitable authority in these circumstances and to reach a fair and just outcome.
We are cognizant of husband's argument that wife had no credibility and that the trial court should not have accepted her claim that she ended the relationship with Warholak. But like other factual determinations, we defer to the court's finding of fact that the cohabitation ended in April 2010 and that the dating relationship between wife and Warholak had also ended at a later time.
To avoid manipulation of the court by means of a hiatus from the status quo of cohabitation, the burden should be placed on the recipient spouse to prove the end of cohabitation if the court has found that it existed.
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Husband also argues that he will be placed in the undesirable position of having to monitor wife's status in the future to assure himself that he is not compelled to provide financial support if she is again cohabiting. We think the substantial remedy imposed by the court should provide a disincentive for any future effort by wife to avoid the consequences of the agreement she made.
In sum, although we caution trial courts against use of such an equitable remedy to sidestep the terms of an explicit and enforceable agreement, we conclude that the trial court in this case did not exceed its equitable powers or abuse its discretion in granting husband the partial remedy of suspension of alimony during the period of cohabitation rather than complete termination.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION