WENDY S. WOOD VS. ALAN R. WOOD (FM-13-1788-15, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4068-17T2

WENDY S. WOOD,

Plaintiff-Respondent,

v.

ALAN R. WOOD,

Defendant-Appellant.

___________________________

Argued March 18, 2019 – Decided May 16, 2019

Before Judges Gooden Brown and Rose.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Monmouth County,

Docket No. FM-13-1788-15.

Marybeth Hershkowitz argued the cause for appellant

(Cores & Associates, LLC, attorneys; Amy Sara Cores

and Marybeth Hershkowitz, on the briefs).

Risa M. Chalfin argued the cause for respondent

(Wilentz, Goldman & Spitzer, PA, attorneys; Joseph J.

Russell, Jr. and Risa M. Chalfin, of counsel and on the

brief).

PER CURIAM

In this post-judgment matrimonial matter, defendant (ex-husband) appeals

from a March 29, 2018 Family Part order, denying his motion to terminate his

alimony obligation to plaintiff (ex-wife) based on cohabitation, and awarding

plaintiff counsel fees. Defendant raises the following points for our

consideration:

POINT I: THE TRIAL COURT ERRED AS A

MATTER OF LAW IN FAILING TO FIND

COHABITATION BETWEEN PLAINTIFF AND HER

PARAMOUR AND FAILED TO GIVE PROPER

WEIGHT TO THE FINANCIAL ENTANGLEMENTS

OF . . . PLAINTIFF AND [HER PARAMOUR].

POINT II: TRIAL COURT IMPROPERLY SHIFTED

THE BURDEN TO . . . DEFENDANT TO PROVIDE

EVIDENCE OF PLAINTIFF'S FINANCIAL

ENTANGLEMENT WITH HER LIVE[-]IN

PARAMOUR.

POINT III: THE TRIAL COURT ERRED IN

FAILING TO ORDER A PLENARY HEARING WITH

RESPECT TO THE ISSUE OF COHABITATION.

POINT IV: THE TRIAL COURT MISAPPLIED ITS

DISCRETION IN AWARDING PLAINTIFF

COUNSEL FEES AND SHOULD BE REVERSED.

Having considered the arguments and applicable law, we affirm.

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The parties married in 1993 and divorced in 2016. Two daughters were

born of the marriage, A.W.,1 born in 1995, and T.W., born in 1996. Both

children were emancipated at the time of the divorce. Plaintiff also had a son,

C.H., born in 1989 from a prior relationship. Under the parties' property

settlement agreement (PSA), which was incorporated into their September 15,

2016 final judgment of divorce (FJOD), defendant agreed to pay plaintiff $525

per week in limited duration alimony for a period of ten years , effective

September 13, 2016, the date the PSA was executed. Under the PSA,

defendant's "obligation to pay alimony shall terminate" upon plaintiff's

"remarriage" or the "death" of either party or "[i]n accordance with [N.J.S.A.]

2A:34-25[.]" Further, alimony could be "modified or terminated in accordance

with N.J.S.A. 2A:34-25 and . . . existing case law."

In executing the PSA, the parties were both represented by counsel,

accepted the agreement as fair and reasonable, and acknowledged entering into

the PSA voluntarily. The parties also agreed that if either party "fail[ed] to abide

by the terms of th[e] [PSA], the defaulting party w[ould] indemnify the other for

all reasonable expenses and costs, including counsel fees, incurred by the other

in successfully enforcing th[e] [PSA]."

1

We refer to the parties' children by their initials to protect their privacy.

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On December 6, 2017, defendant moved to terminate or suspend his

alimony obligation based on plaintiff's purported cohabitation. In the

alternative, defendant sought a finding that he had established a prima facie case

of changed circumstances, entitling him to a plenary hearing with appropriate

discovery. Defendant also requested counsel fees. To support the motion,

defendant provided an updated case information statement (CIS), and certified

that "[i]n the Fall of 2016," he learned "that [p]laintiff was living with [her]

boyfriend, K.C." As a result, defendant "hired [a] private investigator . . . to

confirm and document the cohabitation."

In the November 17, 2017 cohabitation report attached to defendant's

certification, the investigator indicated that based on a computer search of

current public records, K.C.'s name was associated with both the marital

residence, which was foreclosed upon and sold in the Spring of 2016, and

plaintiff's current residence, a condominium unit located in Howell (the

condominium). According to the investigator, K.C., then fifty-three years old,

changed his address on his driver's abstract and voter registration profile to

reflect the condominium address on January 26, 2017, and November 2, 2016 ,

respectively.

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The investigator conducted two rounds of surveillance of the

condominium on non-consecutive days from March 8 to April 6, 2017, and from

August 23 to November 17, 2017, the results of which were detailed in the

report. During the first round of surveillance, on the morning of April 6, 2017,

the investigator observed a 5' 10," 165 pound adult Caucasian male, "presumed

to be . . . K.C.[,]" inside the condominium. During the second round of

surveillance, K.C. was observed at the condominium "in the early morning and

afternoon hours on [fourteen] out of [fourteen]" occasions.

The investigator summarized the results of the second round of

surveillance as follows:

The surveillance revealed that . . . K.C. typically leaves

[the condominium] at 5:00 [a.m.] and walks to a nearby

bus stop. He has been observed boarding bus number

139 with a banner that reads "New York via Freehold

Mall[.]" One morning, when it was raining heavily,

[plaintiff] and . . . K.C. left [the condominium] together

at approximately 5:25 [a.m.]

Our office has also observed . . . K.C. come off the bus

typically at 3:15 [p.m.] On several occasions,

[plaintiff] would pick up . . . K.C. at the bus stop and

on one[] occasion, he was greeted with a kiss from

[plaintiff]. On other days, . . . K.C. was observed

walking from the bus stop to [the condominium]. On

all occasions, . . . K.C. was observed using his own set

of keys to enter [the condominium]. . . . K.C. was also

observed accessing the locked mailbox with a key

without being in the presence of [plaintiff].

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Despite reportedly observing plaintiff and K.C. kiss on two separate

occasions, the investigator was unable to obtain surveillance footage due to the

brevity of the interaction. The two were also observed driving to Robert Wood

Johnson University Hospital in New Brunswick on one occasion. Based on the

investigation, the investigator concluded that plaintiff was "permanently

cohabiting" and "engaging in a romantic relationship" with K.C.

Plaintiff opposed defendant's motion and cross-moved for an order

holding defendant in violation of litigant's rights for failing to comply with

various provisions of the PSA, including missing alimony payments . Plaintiff

also sought counsel fees in accordance with the indemnification provision of the

PSA. In a supporting certification, plaintiff denied "cohabitating." She certified

that K.C. was "a roommate" who lived with her because she could not "afford

to live by [her]self on the alimony," she was "unable to work" due to "[her]

multiple disabilities[,]" which "include[d] brain cancer, multiple sclerosis,

transverse myelitis, and a seizure disorder[,]" and she had not yet received any

disability benefits.

According to plaintiff, when the marital residence "was foreclosed upon"

and she "started looking for a comfortable, safe, one-bedroom residence" with

"wheelchair accessib[ility]," she "learned that [she] did not have sufficient

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income or income history to qualify for a rental[.]" K.C., an "acquaintance[,]

. . . was also looking for a place to live" and "asked . . . if [she] wanted to be

roommates." She agreed and they "rented a two-bedroom condominium

together and signed separate leases on October 7, 2016[,]" for which she paid

$800 per month as her "portion of the rent."

According to plaintiff, K.C. "[paid] his share of the rent and utilities" and

"occasionally help[ed] [her] carry packages to/from [her] car." She also

acknowledged that she "occasionally pick[ed] [him] up . . . at the bus stop that

[was] about [a] five minute walk from [the condominium] because he does not

have a car . . . and it [was] convenient for [her]." However, she denied any

financial entanglements or that they were "in a romantic relationship" or "a

mutually supportive, marriage-like relationship." On the contrary, she asserted

that their "finances [were] not combined[,]" and that she paid for her own

"groceries," "medical expenses," "transportation expenses and daily living

expenses." In addition, she and K.C. "each ha[d] . . . separate rooms," and

"separate bathrooms" in the condominium.

To underscore the nature of her relationship with K.C., plaintiff pointed

out that "before and after" her July 27, 2017 brain surgery, it was her "family

and friends," including her children and her elderly parents, who stayed with her

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and cared for her, rather than K.C. Plaintiff also stated that she and K.C. "do

not socialize together" and "friends and family do not consider [them] a

couple[,]" as evidenced by the fact that there were no "photographs of [them]

together or mention of . . . K.C. in any [Facebook] posting" or "other social

media."

In fact, plaintiff believed that the only time the two "spent time together

outside of [the condominium] was this past Thanksgiving" when her daughter

A.W. invited him to dinner at her home once she discovered "he had [no] plans

for the holiday." Plaintiff provided certifications from K.C. and her son C.H.,

corroborating her account that she and K.C. were not romantically involved.

She also supplied a lease agreement for the condominium, signed by K.C. and

plaintiff, and a letter from her doctor confirming her medical conditions.

In a reply certification, defendant countered that aside from the

investigator observing the two "kissing and embracing[,]" and "K.C.

accompanying plaintiff to Robert Wood Johnson Hospital[,]" both of which

were indicia of a mutually supportive relationship, "[their] children have relayed

to [him] that . . . K.C. [was] indeed plaintiff's longtime boyfriend." Further,

during "[his] final walk through of the [marital residence]," where his

investigator believed K.C. had previously lived while the divorce was finalized,

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defendant had observed "male clothing . . . intermingled with plaintiff's in the

master bedroom[,]" that did not belong to him. In addition, defendant pointed

out that contrary to plaintiff's assertion that she and K.C. had "separate leases,"

the lease supplied by plaintiff showed that they were, in fact, "co-lessees."

In a supplemental certification, plaintiff responded that when the marital

residence was being foreclosed upon due to defendant's failure to pay the

mortgage, she offered K.C. a spare bedroom in the home for $300 per month in

rent in order to obtain funds to pay the utilities. However, she denied that any

male clothing was in her bedroom when defendant conducted his walk through.

In support, plaintiff submitted her daughter A.W.'s certification, because A.W.,

as well as C.H., were also living in the marital residence at the time. A.W.

confirmed that plaintiff was "not romantically involved" with K.C., that she

never told defendant that K.C. was "romantically involved" with plaintiff, and

that when K.C. rented a room in the marital residence, he never slept nor kept

clothing in her mother's bedroom. A.W. also confirmed that she invited K.C. to

Thanksgiving dinner after "learn[ing] that he did not have any plans" for the

holiday.

In her supplemental certification, plaintiff also explained that while K.C.

had driven her to her hospital appointment one time "approximately one month

A-4068-17T2

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following [her] brain surgery[,]" it was "a simple favor[,]" and not indicative of

"a 'mutually supportive' relationship." Moreover, she denied ever "romantically

kiss[ing] or embrac[ing]" K.C. Further, because K.C. weighed between 265 and

300 pounds, plaintiff asserted that the investigator may have mistaken observing

her son C.H., who was, in fact, 5'10" and 165 pounds, for K.C. in the

condominium on April 6, 2017, and the "inaccuracy cast[ed] doubt as to whether

the . . . investigator was confused about [her] son and . . . K.C. at other times."

Following oral argument, on March 29, 2018, Judge Andrea Marshall

denied defendant's motion and awarded plaintiff counsel fees, among other

relief. In her statement of reasons, relying on Lepis v. Lepis, 83 N.J. 139 (1980),

Crews v. Crews, 164 N.J. 11 (2000), and N.J.S.A. 2A:34-23(n), the judge

acknowledged that a "dependent spouse's cohabitation with another" constituted

"changed circumstances" warranting modification or termination of alimony

"[e]ven if a PSA does not expressly provide for the cessation of alimony

payments upon cohabitation[.]" 2 Further, "[o]nce a prima facie showing of

changed circumstances [was] made, the court may order further discovery" and,

2

In her supplemental certification, plaintiff had asserted that even if she was

cohabitating, defendant's request was not supported by their PSA which "clearly

state[d] the conditions upon which [d]efendant [could] request termination of

alimony" and "[c]ohabitation [was] not one of the conditions."

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"[u]pon the completion of discovery . . . , in its discretion, . . . hold a plenary

hearing." However, the judge noted that "[t]he moving party [bore] the burden

of showing changed circumstances that warrant[ed] modification or

termination" and "[a]bsent a prima facie showing of changed circumstances,

courts should not order discovery of a spouse's financial status" or conduct "a

plenary hearing" unless "material facts are 'in genuine dispute.'"

Additionally, the judge explained that "[c]ohabitation involve[d] a

mutually supportive, intimate personal relationship in which a couple has

undertaken duties and privileges that are commonly associated with marriage or

civil union." Relying on Konzelman v. Konzelman, 158 N.J. 185, 202 (1999),

the judge acknowledged that "a finding of cohabitation" was "based on those

factors that ma[d]e the relationship close and enduring and require[d] more than

a common residence, although that [was] an important factor." Rather, the

factors to be considered included, but were 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." See ibid.; see also N.J.S.A. 2A:34-23(n). Further, while

consideration of "the length of the relationship" was necessary, the judge noted

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that "[t]he definition of cohabitation [was] flexible and specific to the particular

circumstances involved."

Before applying these well-settled legal principles to the facts of the case,

the judge summarized the parties' submissions as follows:

Defendant asserts that . . . [p]laintiff is romantically

involved with . . . K.C. and they maintain a household

together. Defendant also states that . . . K.C. lived at

the former marital home for a period of time . . . .

Plaintiff concedes that she is living with . . . K.C. but

only as roommates because she cannot afford her own

rental. Plaintiff asserts that she and . . . K.C. signed

separate leases. However, the lease included in her

application . . . shows a single lease with both [p]laintiff

and . . . K.C.'s signatures. As such, there is some indicia

of joint responsibility for living expenses, at least rent.

The judge then determined:

Defendant has provided no indication of . . . [p]laintiff's

financials that would support his assertion that there has

been cohabitation. Further, [d]efendant references

Facebook posts and pictures that show [p]laintiff and

. . . K.C. behaving as a couple, but does not provide any

evidence of same in [his] application. [Also,]

[d]efendant points to two specific instances of kissing

and embracing in the investigative report to support his

allegation that [p]laintiff is in an intimate personal

relationship with . . . K.C. However, the instances . . .

were characterized as too brief for the investigator to

take a photograph of same. In sum, [d]efendant has

failed to support his claim on a prima facie basis that

[p]laintiff is cohabitating with . . . K.C. in accordance

with Lepis or N.J.S.A. [2A:34-25]. Therefore,

[d]efendant's requests to terminate or suspend his

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alimony obligation are denied. Further, [d]efendant's

request to conduct a plenary hearing, [and] conduct

discovery . . . [is] denied without prejudice.

Turning to plaintiff's cross-motion, the judge granted plaintiff's request to

hold defendant in violation of litigant's rights for failing to comply with two

provisions of the PSA. Specifically, the judge found that defendant missed two

weeks of alimony payments, and failed to turn over to plaintiff the entirety of

his retirement account or pay his proportionate share for the preparation of the

necessary qualified domestic relations order as required under the PSA, none of

which defendant disputed.

Finally, the judge addressed both parties' requests for counsel fees and

acknowledged that both parties had provided certifications of services from their

respective counsel as required by Rule 4:42-9(b). However, relying on Mani v.

Mani, 183 N.J. 70, 94 (2005), and applying the factors enumerated in Rule 5:3-

5(c), the judge denied defendant's request, and ordered him to pay plaintiff

partial counsel fees in the amount of $500.

The judge explained:

It appears that . . . [d]efendant . . . earns a higher income

than . . . [p]laintiff. Plaintiff asserts that she has a

limited income due to her health. Plaintiff appears to

be acting in good faith to enforce the terms of the

parties' PSA. Defendant's good faith is somewhat

questionable. While his requests concerning

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cohabitation seem to be brought in good faith, he

appears to be neglecting some of his obligations under

the terms of the PSA.

The judge also referred to "the indemnification provision" in the PSA and, given

plaintiff's success in enforcing the PSA's provisions, concluded that the Rule

5:3-5(c) factors, as well as the indemnification provision "support[ed] an award"

of counsel fees to plaintiff. The judge entered a memorializing order and this

appeal followed.

On appeal, defendant argues the judge erred in finding that he failed to

"establish[] a prima facie case of cohabitation" in order to shift "the burden . . .

to plaintiff to show her continued need for alimony." According to defendant,

because it was undisputed that plaintiff was living with someone, "at the very

least," he was "entitled" to "the discovery that accompanies a plenary hearing[,]"

without which he had no "ability to obtain the financial information that plaintiff

[was] under no obligation to provide." Defendant continues that the judge

"should have granted [his] request for a plenary hearing based on the fact that

the certifications created material issues of disputed facts relevant to the issue

of cohabitation." Additionally, defendant contends that "[i]n granting . . .

plaintiff counsel fees, the [judge] erroneously made findings of fact that were

either not supported by the record or directly contrary to the record."

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After carefully reviewing the record, we reject defendant's contentions

and affirm substantially for the reasons expressed by Judge Marshall in her

comprehensive and well-reasoned statement of reasons. Judge Marshall's

factual findings are "supported by adequate, substantial, credible evidence" in

the record, considering our "limited" scope of review, and the deference we

accord "to family court [fact-finding]." Cesare v. Cesare, 154 N.J. 394, 411-13

(1998). We are also satisfied that Judge Marshall's legal conclusions, which are

subject to our plenary review, see Crespo v. Crespo, 395 N.J. Super. 190, 194

(App. Div. 2007), are sound. Further, we discern no abuse of discretion in the

judge's award of counsel fees. See Strahan v. Strahan, 402 N.J. Super. 298, 317

(App. Div. 2008) ("We will disturb a trial court's determination on counsel fees

only on the 'rarest occasion[s],' and then only because of [a] clear abuse of

discretion." (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995))). We add

only the following comments.

Trial courts are afforded wide discretion when deciding motions to modify

alimony obligations. Reese v. Weis, 430 N.J. Super. 552, 572 (App. Div. 2013).

Such discretion, however, "is not unguided or uncontrolled." Id. at 572 (quoting

Cosme v. Borough of E. Newark Twp. Comm., 304 N.J. Super. 191, 202 (App.

Div. 1997)). Given the wide, but not unlimited discretion of trial courts in such

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matters, our review is limited "to whether the court made findings inconsistent

with the evidence or unsupported by the record, or erred as a matter of law."

Ibid.

Procedurally, an alimony payor who alleges cohabitation must first

present a prima facie case that his or her former spouse is in such a cohabiting

relationship tantamount to marriage. See Gayet v. Gayet, 92 N.J. 149, 154-55

(1983). If such a prima facie showing is made, the disputing ex-spouses may

then engage in mutual discovery. See ibid. The payor's prima facie showing of

cohabitation creates a rebuttable presumption of changed circumstances, which

the dependent ex-spouse may then attempt to rebut "with proof that the need for

[spousal] support remains the same." Ozolins v. Ozolins, 308 N.J. Super. 243,

248-49 (App. Div. 1998); see also Reese, 430 N.J. Super. at 570-71 (reaffirming

this court's holding in Ozolins).

Here, the record amassed by defendant was reasonably deemed

insufficient by the judge to rise to the level of a prima facie case that would

justify the additional discovery sought by defendant. While our Supreme Court

has characterized "a common residence" as "an important factor" in establishing

cohabitation, it has not determined that a common residence alone establishes a

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prima facie case, and we reject defendant's invitation to do so here. Konzelman,

158 N.J. at 202.

That being so, the judge did not misapply her authority in declining

defendant's request for discovery or a plenary hearing, particularly since

defendant's request in that regard was denied without prejudice. See Shaw v.

Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976) ("It is only where the affidavits

show that there is a genuine issue as to a material fact, and that the trial judge

determines that a plenary hearing would be helpful in deciding such factual

issues, that a plenary hearing is required."). Thus, defendant is not foreclosed

from any future attempt to establish a prima facie case of cohabitation with

supplemental proofs showing that plaintiff's and K.C.'s lives and finances are

actually more intertwined than the present record suggests.

To the extent any argument raised by defendant has not been explicitly

addressed in this opinion, it is because the argument lacks sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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