Opinion
DOCKET NO. A-5422-11T4
07-22-2013
APRIL LAJUNE SULLIVAN, Plaintiff-Appellant, v. ROY DAVID SULLIVAN, Defendant-Respondent.
Ari H. Gourvitz argued the cause for appellant (Gourvitz & Gourvitz, LLC, attorneys; Mr. Gourvitz and Elliot H. Gourvitz, and on the briefs). Roy David Sullivan, respondent, argued the cause pro se.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Ostrer.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-354-07.
Ari H. Gourvitz argued the cause for appellant (Gourvitz & Gourvitz, LLC, attorneys; Mr. Gourvitz and Elliot H. Gourvitz, and on the briefs).
Roy David Sullivan, respondent, argued the cause pro se. PER CURIAM
Following a plenary hearing, a Family Part judge concluded the cohabitation clause of the parties' property settlement agreement had been triggered by plaintiff April Lajune Sullivan's relationship with Stephen, and ordered defendant Roy David Sullivan relieved of his obligation to pay alimony. Plaintiff's motion for reconsideration was denied and she appeals. Following our review we conclude the trial judge erred as a matter of law, and reverse.
We limit our recital of the facts to the issues on appeal. The facts are taken from the record of the plenary hearing.
The parties were divorced after nearly sixteen years of marriage. They have four children, two of whom were emancipated at the time the parties divorced. Under the terms of a property settlement agreement, defendant agreed to pay plaintiff alimony of $385 a week for ten years, then $230 per week thereafter. The terms of the agreement further provided alimony would terminate upon the happening of: 1) either party's death; 2) plaintiff's remarriage; or 3) defendant's retirement at age sixty-five. The agreement also included a cohabitation clause affecting the continuation of alimony, which stated:
In the event the Wife cohabits with an unrelated male in a relationship tantamount to marriage, the Husband shall have the right to pursue a post[-]judgment application pursuant to applicable [c]ase [l]aw[,] including but not limited to Gayet v. Gayet, 92 N.J. 149 (1983) and Ozolins v. Ozolins, 308 N.J. Super. 243 (App. Div. 1998).
The final judgment of divorce, incorporating the parties' property settlement agreement, was filed on May 7, 2007. Over the next three years, several post-judgment motions were filed, addressing various enforcement or modification issues. Plaintiff also filed a complaint pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, and a final domestic violence restraining order was entered, which included provisions restraining defendant from all contact and communication with plaintiff, enjoining him from future acts of domestic violence, and removing him from the former marital home, granting plaintiff its exclusive possession.
On September 14, 2010, defendant filed a motion, which included a request to terminate or modify his obligation to pay alimony, because plaintiff was cohabiting with Stephen. Prior to filing his motion, defendant had stopped his alimony payments, claiming Stephen moved into the former marital residence once defendant was restrained by the PDVA order. Defendant principally supported his request by certified statements from the two emancipated children, Roy and Reggie. The brief certifications, one of which was four paragraphs, the other merely three, contained nearly identical statements, including: at the time defendant was removed from the home based on the PDVA order, "my mother's boyfriend, Stephen[,] moved into the residence"; "[o]n average, I estimate . . . he stayed there approximately four to five (5) nights per week"; Stephen "had his own personal key to the home to come and go as he pleased"; "[h]e stayed in our mother's room"; and "[h]e had all of his clothes at the home[.]" Finally, the certifications stated Roy and Reggie had a disagreement with Stephen in September 2009, Stephen changed the locks, and they were no longer welcome to reside in the home.
Plaintiff filed a cross-motion for enforcement of litigant's rights, supported by counsel's certification identifying various documents that focused on financial issues, including defendant's failure to satisfy previously ordered obligations regarding the former marital home. Counsel attached prior court orders showing Stephen and his mother, Barbara, had purchased the former marital home on February 22, 2010, which he argued explained his right to change the locks and have a key.
The record does not include an affidavit from plaintiff; however, the judge's findings reference facts provided by plaintiff.
A Family Part judge considered the arguments on October 22, 2010. Although the judge denied defendant's request to terminate alimony, he relied on Roy's and Reggie's certifications and Stephen's ownership of the residence and concluded defendant had established a prima facie case of a substantial change in circumstances warranting a modification of his alimony obligation. The judge set a discovery schedule and ordered discovery and a plenary hearing to be scheduled in January 2011.
On May 27, 2011, plaintiff moved to reverse the provision of the October 22, 2010 order temporarily suspending alimony. Plaintiff suggested Roy's original certification was provided in exchange for a car purchased for him by defendant, and noted Reggie's more recent certification attacked the authenticity of his initial certification, recanted its contents, and averred the document was created by defendant. Defendant cross-moved, denying he induced Roy and Reggie to file false statements and asserting Reggie's new certification was "a complete and utter lie." He attached purported handwritten statements from which the original certifications were based and requested plaintiff's application be denied as an untimely motion for reconsideration. The judge agreed and denied plaintiff's motion.
Although not explained whether and how they were filed, Reggie and Christina, Roy's girlfriend, executed certifications dated November 1, 2010, which recanted and rebutted the assertions presented in the original certifications of Roy and Reggie. After this motion was decided, Roy executed a certification dated July 14, 2011, recanting his original certification.
On October 27, 2011, a different Family Part judge conducted an evidentiary hearing on the cohabitation issue. The judge identified the scope of testimony, explaining he wanted to "focus on the cohabitation[,]" and not "deal[] with the economics at this moment[.]"
Defendant testified. He read aloud portions of plaintiff's answers to interrogatories, revealing Stephen visited the former marital residence "approximately five to six times a week[,]" plaintiff had a "sexual relationship" with Stephen, and she admitted he had stayed overnight at the marital residence, but was "uncertain with specificity of the number of nights[.]" Defendant testified when he retrieved his personal belongings from the former marital residence, he observed Stephen with plaintiff and the children in the home and also saw a picture of Stephen and plaintiff on the wall.
Defendant explained he was trying to "[re]establish[]" a relationship with his sons after being estranged for three years. When the boys came to visit, they stated Stephen was residing in the former marital residence and he authenticated the handwritten letters authored by Roy and Reggie. Defendant denied he promised either son anything in exchange for the letters, did not coerce them to make the statements and did not alter or amend the letters. However, defendant admitted he co-signed the note for Roy's purchase of an Infinity G35 vehicle and had recently made car payments when Roy fell behind. He denied ever threatening Roy that he would "[t]ake [his] signature off" the car.
Defendant testified he had not seen or contacted Reggie in over a year because of "this whole court deal."
Plaintiff, Christina, and Reggie also testified. Consistent with her certification, Christina testified she had dated Roy for eight years, during which time she visited plaintiff's home about four times per week and spent at least one night per week, "almost like [she] do[es] live there." She admitted she and others called Stephen "Uncle Steve." She asserted only plaintiff and the parties' children lived in the former marital residence, she had no reason to believe Stephen had a key to the home, and he usually left the home before she did.
Reggie discussed his handwritten letter, which was admitted into evidence by defendant. Reggie explained he wrote the document to help his father retain termination of alimony payments. He expected that in return, his father would dismiss a domestic violence restraining order he had against Reggie. Reggie believed the order interfered with his employment. Reggie testified defendant "asked [him] to write th[e] letter[,]" and promised, if Reggie did so, he would "drop the restraining order[,]" but defendant had not made an effort to follow through. In a telephone conversation that included defendant, Roy, and Reggie, defendant told Reggie and Roy to "[']make sure you put in that Ste[ph]en . . . lived at the house . . . so [I] can stop payment of the alimony.[']" On cross-examination Reggie steadfastly insisted the letter he wrote, which was turned into the original certification, was untrue and he wanted to set things right. Further, he suggested his signature on the original certification was forged. Reggie was also present when defendant promised Roy "he would get him a car[,]" and he knew defendant in fact bought Roy an Infinity G35.
Plaintiff was the last to testify. She explained the circumstances that led to Stephen and Barbara's purchase of the former marital home, stating foreclosure proceedings were started twice. The first time, around November 2007, the court ordered defendant to bring the mortgage current. The second time, plaintiff, with Barbara as co-signor, attempted to purchase the home but was unable to do so because of the foreclosure action. Thereafter, in February 2010, Barbara and Stephen purchased the realty and plaintiff began paying "rent," by making direct payments to the mortgagee, in accordance with the written lease with Barbara. She conceded she did not have any interest in the home "other than as a tenant[.]"
Plaintiff insisted although she had known Stephen for five-and-a-half years, they were intimate but not cohabiting. She did not deny they had a sexual relationship or that she saw him "five to six times during the week." She stated neither Stephen nor Barbara ever resided in the home, but he had stayed overnight about once a week. She denied Stephen kept clothing at the marital residence or that he had a key. She also testified she never lived in Stephen's Plainfield residence.
Various documents were introduced. Neither party called Roy to testify.
In an oral opinion, the judge evaluated the evidence. He "disregarded completely" Reggie's testimony, finding it incredible. Further, the judge acknowledged cohabitation does not require Stephen be present in the home "all of the time," but "spends the greatest portion of his time" at plaintiff's residence. He relied on Christina's reference to Stephen as "Uncle Steve[,]" showing he "is part of a family unit[.]" Weighing the duration of the relationship, the admission Stephen is "present at the house five or six times during the week[,]" "spends overnights," the frequency of which plaintiff could not quantify, and that plaintiff and Stephen were intimate, the judge found the relationship between plaintiff and Stephen was not a casual one, or mere dating, but rather had "the components indicia of a marriage." He concluded defendant had proved plaintiff was cohabiting with Stephen.
The judge next concluded Stephen received a financial benefit, stating:
[W]hile there is no testimony that would support a finding that [Stephen] is in any way contributing financially to Mrs. Sullivan, the court can [infer] from the circumstances . . . that [Stephen] is receiving a financial benefit from his relationship with Ms. Sullivan and that a portion of the alimony that is being paid by Mr. Sullivan is going toward various household expenses attributable to [Stephen], whether it be food, utilities, [or] shelter.
The parties were permitted to submit memoranda on whether alimony should be modified or terminated. Thereafter, the court's order, which included findings and conclusions, restated plaintiff was cohabiting with Stephen, and specifically found "[p]laintiff receives no economic benefit from the relationship[.]" However, the judge found the "relationship between the [p]laintiff and her paramour is a marriage-like relationship, only lacking the formality of a marriage ceremony." Consequently, the judge concluded termination of alimony was justified, stating:
If there were to be a finding that any period of cohabitation, in a relationship tantamount to marriage, but lacking a formal ceremony, would only modify alimony if there is an economic benefit to the ex-spouse, then is the supporting ex-spouse to be expected to continue alimony indefinitely, as long as the paramour and the supported ex-spouse don't formally marry?The order was made effective to September 21, 2010, the date defendant filed his motion.
. . . .
[B]ased on the length of the cohabitation, the nature of the relationship, and how the parties view themselves as well as how friends and family members view the relationship, the [c]ourt finds that the alimony obligation of the [d]efendant to the [p]laintiff should be, and is, terminated, effective immediately[.]
Plaintiff moved for reconsideration and modification of the court's order, challenging the termination of alimony, arguing plaintiff was being improperly "punished for having an ongoing sexual relationship with [Stephen], with no cohabitation." Six months later, the judge entered an order denying plaintiff's motion for reconsideration. The judge relied on his prior factual findings and concluded that although there was no direct evidence of Stephen's support, a reasonable inference drawn from the facts was alimony was used for Stephen's benefit. Plaintiff's motion was denied and this appeal ensued.
The scope of our review of a trial court's factual findings is limited. D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div. 2013) (citation omitted). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citation omitted). We are obliged to accord deference to the trial judge's credibility determinations. Id. at 412. Such deference is appropriate because the trial 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[.]" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (internal quotation marks and citation omitted).
However, when "the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citations omitted). Reversal is warranted when a trial court's findings "went so wide of the mark that a mistake must have been made[,]" ibid. (internal quotation marks and citation omitted), including factual findings "'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) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). See also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (discussing "limited" appellate review). Consequently, when a reviewing court concludes there is insufficient evidentiary support for the trial court's findings we reverse, and at times we are compelled to direct the matter be retried before a different judge. P.T. v. M.S., 325 N.J. Super. 193, 221 (App. Div. 1999).
A trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to our plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citations omitted). Our review of a trial court's legal conclusions is always de novo. Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007).
On appeal plaintiff urges reversal, asserting the trial judge erred in concluding the facts supported a finding plaintiff and Stephen were cohabiting. As she did before the trial judge, plaintiff argues the factors indicative of cohabitation are absent. Alternatively, plaintiff argues if cohabitation has been established, the judge erred by failing to analyze the financial aspects of the relationship between plaintiff and Stephen to determine the nature and extent of Stephen's financial contribution to the household, if any.
We agree the trial judge's findings do not identify sufficient facts to support a conclusion the relationship between plaintiff and Stephen "has all the components indicia of marriage" and they were cohabiting. The trial court erred by emphasizing the duration and intimacy of their liaison, without considering factors supporting the financial aspects of the relationship and its mutual interdependence, which is the essence of why cohabitation triggers a review of alimony. A long-standing sexual friendship without a "financial interdependence," is not cohabitation.
In a recent opinion we recited "the legal underpinnings necessary to establish cohabitation[.]" Reese v. Weiss, 430 N.J. Super. 552, 568 (App. Div. 2013). We explained:
Cohabitation involves an "intimate[,]" "close and enduring" relationship, requiring "more than a common residence" or mere sexual liaison. Konzelman v. Konzelman, 158 N.J. 185, 202 (1999). Cohabitation involves conduct whereby "the couple has undertaken duties and privileges that are commonly associated with marriage." Ibid. In addition to long-term intimate or romantic involvement, indicia of cohabitation may "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. The couple's relationship "bears the generic character of a family unit as a relatively permanent household[,]" Gayet, supra, 92 N.J. at 155 (internal quotation marks and citation omitted), is "serious and lasting[,]" and reflects the "stability, permanency and mutual interdependence" of a single
household, Konzelman, supra, 158 N.J. at 202-03.
[Id. at 570.]
The Court in Konzelman, supra, cautioned, "[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." 158 N.J. at 202. A court must examine an "intimate relationship" to find whether "the couple has undertaken [the] duties and privileges that are commonly associated with marriage[,]" which "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.
As every case turns on its own facts, we examine those presented in Konzelman and Reese. In Konzelman, supra, movant proved the former dependent spouse and her paramour had an exclusive relationship, had spent 127 consecutive nights together, and
lived together most of the time. [He] paid for improvements to the residence in the form of an above ground pool, and shared in various chores around the house. They had a joint savings account and [he] paid for
their vacations together. Their family holidays together further indicate[d] that their relationship was recognized as close and sustained.
[158 N.J. at 202.]
In Reese, supra, cohabitation was not contested; however, the facts supporting the relationship included: the parties openly and notoriously lived together in a jointly owned home for a period that, at the time of hearing, exceeded the length of the marriage; the couple owned joint bank accounts and credit cards; they maintained an "intertwined, ill-defined system of expense allocation and payment[;]" and they participated in family religious events, extensive vacations involving each of their children, and socialized as an exclusive couple and family unit. 430 N.J. Super. at 577-79.
In this matter, the indicia proffered to support cohabitation were far more limited than what was found sufficient in Konzelman and Reese. In his oral opinion following the hearing and on reconsideration, the judge identified these facts to conclude plaintiff and Stephen had a relationship equating to a "de facto marriage": 1) the relationship endured for more than five years, reflecting "stability and permanency"; 2) it was intimate and had a sexual component; 3) Stephen spent "frequent" overnights; 4) Stephen was present in plaintiff's home five to six time per week, "spending more time in the plaintiff's apartment [sic] than his own"; and 5) Stephen was known as "Uncle Steve."
The judge's analysis completely omitted a key component: financial interdependence. Refusing to consider evidence regarding financial matters, the judge repeated his instruction, "we are not going to be dealing with the economics at this moment[.]" Defense counsel also objected to any questions addressed to finances. While the evidence does support findings that plaintiff had a longstanding friendship with Stephen that included sex, we are hard-pressed to conclude the parties had an exclusive relationship, in "a relatively permanent household[,]" that is tantamount to marriage. Gayet, supra, 92 N.J. at 155 (internal quotation marks and citations omitted). No proof of shared vacations, holiday events, or other celebrations was offered. Stephen visited regularly, but no evidence established the length of the visits or whether he ever ate dinner, showered, did chores, or purchased household items. Christina testified she called Stephen Uncle Steve, but no one recited he attended any more than one family event, or otherwise made representations to the community, family, or friends that he and plaintiff were in a committed, exclusive relationship. Stephen maintained his own residence, and nothing showed he received mail at or retained other personal items in plaintiff's home.
Here, the trial court's arbitrary limitation on the evidence resulted in an absence of proof of the necessary level of economic inter-dependence integral to a finding of cohabitation and essential to a concomitant change in alimony. See Wertlake v. Wertlake, 137 N.J. Super. 476, 487-88 (App. Div. 1975) (reversing and remanding because the trial judge failed to determine "what effect, if any, the relationship had upon plaintiff's further need for alimony").
Cohabitation qualifies as a changed circumstance warranting modification or possibly termination of alimony only when coupled with economic changes.
In Ozolins v. Ozolins, 308 N.J. Super. 243, 24[5] (App. Div. 1998), we held "a showing of cohabitation creates a rebutta[ble] presumption of changed circumstances shifting the burden to the dependent spouse to show that there is no actual economic benefit to the spouse or the cohabitant." See also Conlon v. Conlon, 335 N.J. Super. 638, 650 (Ch. Div. 2000) (holding the dependent spouse has the burden of proof "to address the economic consequence of the [new] relationship in order for the [c]ourt to make an appropriate assessment regarding a modification or termination of alimony"). Consequently, when faced with the circumstance of cohabitation of a dependent spouse, the court must focus on the economic relationship of the cohabitants to discern whether one cohabitant "subsidizes the other[.]" Boardman [v. Boardman, 314 N.J. Super. 340, 347 (App. Div. 1998)] (internal quotation marks and citations omitted).See also Gayet, supra, 92 N.J. at 153 (holding modification of alimony is justified when "(1) the [cohabitant] contributes to the dependent spouse's support, or (2) the [cohabitant] resides in the dependent spouse's home without contributing anything toward the household expenses") (citation omitted)).
[Reese, supra, 430 N.J. Super. at 570.]
Here, on reconsideration, plaintiff argued the absence of findings regarding the economic impact, if any, of her relationship with Stephen. The trial judge reaffirmed his initial findings, suggesting that if plaintiff and Stephen were cohabiting, Stephen was receiving a benefit from the alimony paid to plaintiff by defendant. We conclude such logic is erroneous, necessitating reversal. See Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div.) (holding reconsideration is granted "only under very narrow circumstances[,]" when either "(1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence" (internal quotation marks and citations omitted)), certif. denied, 174 N.J. 544 (2002).
We remand the matter for a new hearing before a different trial judge. On remand, not only must the court consider defendant's proofs regarding cohabitation, but also plaintiff's proofs of financial independence, which could potentially defeat defendant's motion to terminate alimony.
Reversed and remanded, with a direction for reassignment to a different Family Part judge.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION