ROBIN GRINKEVICH v. JOHN J. GRINKEVICH

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5520-07T35520-07T3

ROBIN GRINKEVICH,

Plaintiff-Respondent,

v.

JOHN J. GRINKEVICH,

Defendant-Appellant.

________________________________

 

Submitted April 21, 2009 - Decided

Before Judges Wefing and Parker.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Monmouth

County, No. FM-13-1898-06-D.

Mattleman, Weinroth & Miller, attorneys

for appellant (Louis G. Guzzo, of counsel

and on the brief; Lauren E. Foley, on the brief).

Stuart Radick, attorney for respondent

(Mr. Radick, of counsel and on the brief;

Jeffrey Zajac, on the brief).

PER CURIAM

Defendant appeals from a post-judgment order denying his motion to modify his alimony obligation. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The parties were married in September 1981 and divorced pursuant to a judgment of divorce entered on July 2, 2007. During their marriage, they had four children, three of whom are now emancipated. Their youngest child, Alex, was born with cerebral palsy and is totally disabled. The parties executed a property settlement agreement which called for defendant to pay alimony of $400 per week. The article, in its entirety, states, "Husband shall pay to the Wife the sum of $400.00 per week ($1,720 per month) as and for alimony. The payment of alimony shall be permanent, except same shall terminate on the remarriage or death of the Wife and/or death of the Husband."

The property settlement also called for child support of $144 per week for Alex. It further acknowledged that Alex is totally disabled and will never be emancipated.

Less than one year later, defendant filed a motion to modify his alimony obligation based upon his allegation that plaintiff was cohabiting with Craig Moon. He supported his motion with a certification from an investigator who had conducted an observation of plaintiff's residence for several months on defendant's behalf. That certification noted that Moon was frequently at the residence and came and went when plaintiff was not there. Defendant also attached to his motion papers postings from a website in which Moon referred to work he had performed around the residence.

Plaintiff opposed the motion. She noted that defendant had wanted to include in the property settlement agreement a provision that alimony would terminate in the event she cohabited with another man but that she had refused to sign an agreement which included such a provision. Further, although she acknowledged a romantic relationship with Moon, she said that Moon had his own residence, and she denied that the two cohabited. Both she and Moon described their relationship as non-exclusive and non-committed.

In her certification, she detailed Alex's condition. He has cerebral palsy of the spastic quadriplegic type. He is confined to a wheelchair and unable to care for his most basic needs. In addition, he has asthma and a seizure disorder and is non-verbal. He thus cannot be left alone at any point. Plaintiff is a registered nurse and has developed a schedule in light of his needs. She works three to four nights a week as a night supervisor because it permits her to prepare Alex in the morning for school and be home when he arrives home from school. She sleeps in the interim. On the nights that she is working, she will feed Alex and prepare him for bed before she has to leave. She stated that Moon will stay at her residence while she is at work to attend to Alex. She noted that Moon, as a pharmacist, has a medical background and familiarity in caring for a special needs person. She also noted that if Moon did not stay with Alex, she would have to hire a companion to do so, at great expense, as well as the fact that Alex was more comfortable in the presence of Moon, with whom he was familiar, than in the presence of a stranger. She certified that Moon contributed nothing to her household expenses.

Finally, she also stated that the alimony and child support were set at the levels used in the property settlement agreement (higher alimony and lower child support) to provide a greater economic benefit to defendant. She noted that any reduction in the amount of her alimony would be unfair because it had been intended to cover a portion of defendant's child support obligation as well.

Plaintiff included in her opposition papers a supporting certification from Moon, in which he recited that while he assisted in caring for Alex, he had his own residence and contributed nothing to plaintiff's household expenses.

Defendant did not submit any papers in opposition to plaintiff's assertion and did not attempt to dispute her assertion that the levels of alimony and child support contained in the property settlement agreement were set to provide the greatest tax benefit to himself and that it was intended that plaintiff's alimony encompass a portion of his child support obligation for Alex.

After hearing oral argument, the trial court denied defendant's motion and denied plaintiff's application for counsel fees. This appeal followed.

Defendant contends that the trial court erred in denying his motion and that, at the least, the trial court should not have decided the matter without a plenary hearing. We disagree.

Our analysis of this matter relies upon certain settled legal principles, not an interpretation of the parties' property settlement agreement, which was entirely silent on the question of the impact, if any, of plaintiff cohabiting with another. Ozolins v. Ozolins, 308 N.J. Super. 243, 245 (App. Div. 1998). In such a context, the fundamental issue is the economic impact of a supporting spouse's cohabitation with another. Absent an agreement,

[c]ohabitation constitutes a change of circumstances only if coupled with economic consequences; the economic benefit enuring to either cohabitor must be sufficiently material to justify relief. Under this economic needs test, the reduction in alimony is granted in proportion to the contribution of the cohabitor to the dependent spouse's needs.

[Konzelman v. Konzelman, 158 N.J. 185, 196 (1999) (citation omitted).]

Here, defendant did not present a prima facie case that the relationship which existed between plaintiff and Moon had economic consequences that could be considered "significantly material." Defendant asserted that Moon had purchased a snow blower and had done chores such as cleaning the gutters and building a bookshelf. Such tasks, although undoubtedly helpful to plaintiff, fall far short of establishing such a material change to her economic circumstances as would warrant a modification of alimony. We cannot help but notice that despite the months of surveillance there was not even an indication that Moon was contributing to household expenses by supplying groceries.

Nor do we think that the trial court was obligated to hold a plenary hearing before deciding the merits of the matter. Such a hearing would have involved considerable expense for the parties, as well as anxiety and upheaval. The question of who paid for the snow blower, plaintiff or Moon, clearly did not warrant a plenary hearing.

 
The order under review is affirmed.

(continued)

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A-5520-07T3

June 4, 2009