CYNTHIA BLUE v. KYLE BLUE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1070-08T11070-08T1

CYNTHIA BLUE a/k/a CYNTHIA

MUZZI,

Plaintiff-Respondent,

v.

KYLE BLUE,

Defendant-Appellant.

___________________________

 

Submitted October 20, 2009 - Decided

Before Judges Grall and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-428-06B.

Rehrer & Rehrer, attorneys for appellant (Linda M. Rehrer, on the brief).

Cynthia Blue, respondent pro se.

PER CURIAM

Defendant Kyle Blue appeals from the September 11, 2008 order of the Family Part denying his motion to terminate or reduce his alimony obligation to plaintiff Cynthia Blue based upon her cohabitation with an unrelated male. For the reasons that follow, we reverse and remand.

The parties were married on November 22, 1992, and were divorced on May 22, 2006. Their property settlement agreement (PSA) incorporated into their final judgment of divorce provided that defendant would pay permanent alimony of $300 per week. The PSA did not address cohabitation as an alimony-terminating event.

The amount of alimony and child support was based on plaintiff earning $450 per week and defendant earning $1538 per week. In accordance with Weishaus v. Weishaus, 180 N.J. 131, 144 (2004), the parties deferred determination of the marital standard of living. The case information statement (CIS) plaintiff submitted at the time of the divorce reflected monthly marital expenses in the amount of $4451.

On November 13, 2006, defendant filed a motion to terminate alimony based on plaintiff's cohabitation. Plaintiff filed a cross-motion to deny defendant's request, acknowledging her cohabitation but denying that she derived an economic benefit as a result. Both parties asked to have the matter decided on the papers.

On January 26, 2007, the trial judge entered an order reducing defendant's alimony obligation from $300 per week to $220 per week. In his statement of reasons, the judge accepted plaintiff's representation that she and her paramour "divide the monthly household expenses equally." The judge engaged in calculations based upon plaintiff's CIS, and reduced defendant's alimony obligation accordingly.

Defendant appealed and we reversed and remanded the matter for a plenary hearing. Blue v. Blue, No. A-3308-06 (App. Div. November 14, 2007) (slip op. at 9). We noted that the judge should not have "proceeded to determine the amount of the appropriate reduction without requiring the discovery and exchange of Case Information Statements contemplated by Rule 5:5-4(a) and Lepis [v. Lepis, 83 N.J. 139 (1980)]." Ibid.

The same trial judge held a plenary hearing pursuant to that remand on April 2 and 30, 2008. Plaintiff testified that she earns approximately $450 per month cleaning houses, but her description of her monthly schedule permitted an inference that she earned about $600 per month. Defendant's earnings after the divorce fluctuated but in each year since the divorce exceeded the weekly amount specified in the PSA.

Plaintiff presented evidence about her financial arrangements with her paramour. She reported monthly expenses of $3701, which includes $2296 for shelter expenses. The lease for the townhouse they rent for $1400 per month is in his name not hers. The gas and electric bill is about $185 per month, and the heat bill is $154. The monthly phone bill, including cell phones is $129. She testified that they combined their net monthly income - her $450 or $600 per month and his net weekly income of $800, or $3440 per month. On cross-examination, however, plaintiff indicated that they equally divided the rent and the gas and electric bill. At another point her testimony was that she contributed half the rent and paid the electric and gas bill and the phone bill in full, a total of $854 of the $2988 shelter expense, which would permit the conclusion that her paramour contributed $959 per month. Plaintiff also claimed that the imputation of $450 per week to which she agreed at the time of the divorce two years earlier was not realistic. Other than indicating that her work schedule permitted her to spend time with her sons, one in junior high school and one in high school, she provided no information as to why she cleaned houses for only three clients.

The trial judge issued a written decision on September 11, 2008, in which he found that plaintiff's paramour contributed $700 per month towards the rent and paid one-half of the monthly gas bill. The judge reviewed the expenses in plaintiff's CIS and concluded that even "[c]onsidering the $700 from the cohabitant, she still has a monthly shortfall of nearly $250 per month." Therefore, the judge concluded that it would be "inequitable and unjust . . . to modify or terminate alimony." On appeal, defendant raises the following contentions for our consideration:

POINT ONE

A PRIMA FACIE SHOWING OF COHABITATION CREATES A PRESUMPTION OF CHANGED CIRCUMSTANCES AND THE BURDEN OF PROOF SHIFTS ONTO THE SUPPORTED SPOUSE TO SHOW THAT NO ECONOMIC BENEFIT IS DERIVED FROM HER COHABITATION; PLAINTIFF FAILED TO MEET HER BURDEN

POINT TWO

THE TRIAL COURT FAILED TO PROPERLY TAKE INTO ACCOUNT THE ECONOMIC IMPACT OF PLAINTIFF'S COHABITATION

POINT THREE

PLAINTIFF HAS CONTINUALLY DISREGARDED THE PROPER PROCEDURES AND HAS HIDDEN BEHIND HER STATUS AS A PRO SE LITIGANT IN AN EFFORT TO DELAY THIS MATTER AND TO AVOID PROVIDING THE NECESSARY INFORMATION; ACCORDINGLY HER CASE SHOULD BE DISMISSED WITH A JUDGMENT IN FAVOR OF THE DEFENDANT TERMINATING HIS ALIMONY

POINT FOUR

THE TRIAL COURT ABUSED ITS DISCRETION BY MAKING FINDINGS THAT WERE NOT BASED UPON ANY EVIDENCE AND BY ALLOWING PLAINTIFF TO DISREGARD HER BURDEN IN THIS MATTER AND ASSI[S]TING PLAINTIFF IN UNDERSTANDING THE LAW

Because we concur that the trial judge's decision was not based upon adequate credible evidence of record, in light of plaintiff's testimony, we are constrained to reverse.

Initially, we reiterate the basic principles regarding requests to modify alimony based upon a claim of cohabitation, which we articulated in our prior decision in this matter:

The law on modification of alimony based on the supported spouse's cohabitation is well-settled. Where the parties have not provided otherwise by agreement, alimony may be modified based on "changed circumstances resulting from cohabitation only if one cohabitant supports or subsidizes the other under circumstances sufficient to entitle the supporting spouse to relief." Gayet v. Gayet, 92 N.J. 149, 153-54 (1983). There is no need for additional explanation beyond the clear statement provided in Ozolins v. Ozolins, 308 N.J. Super. 243, 248-49 (App. Div. 1998):

An alimony award is subject to modification when there has been a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139 (1980). Among the changed circumstances to be considered by trial courts is "the dependent spouse's cohabitation with another . . . ." Id. at 151. However, although cohabitation by a supported spouse may constitute changed circumstances justifying discovery and an evidentiary hearing, modification is called for 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." Gayet[, supra], 92 N.J. [at] 153 (citing Garlinger v. Garlinger, 137 N.J. Super. 56, 64 (App. Div. 1975)).

. . . .

There is a rebuttable presumption of changed circumstances arising upon a prima facie showing of cohabitation. The burden of proof, which is ordinarily on the party seeking modification, shifts to the dependent spouse. . . .

[Blue, supra, slip op. at 7-8.]

The fact of plaintiff's cohabitation is undisputed. The question of the "actual economic benefit to plaintiff[,]" Ozolins, supra, 308 N.J. Super. at 245, is still very much in question, however.

Here, plaintiff testified that she combined her $450 monthly income with her paramour's $800 weekly income to "pay the[] expenses . . . listed on [her] CIS[.]" On cross-examination, plaintiff stated that she and her paramour "split the rent[,] . . . and the gas bill and the electric." Her CIS listed rent at $1400 per month and $185 for electric and gas. Thus, according to plaintiff's testimony on cross-examination, her paramour contributes only $792.50 per month; this is clearly inconsistent with her earlier testimony that he contributes $800 per week toward her living expenses. The judge's findings essentially ignore this testimony.

As the judge noted in his decision, plaintiff's combined monthly expenses (shelter, automobile and personal) currently total $3701. The judge further noted that in her 2006 CIS, plaintiff listed monthly expenses totaling $4451; therefore, he concluded that plaintiff's current standard of living "is well below the marital standard of this marriage."

The record established that plaintiff currently receives $868 per month in child support. If, as she testified, her paramour contributes $800 per week, that prorates to monthly income of $3440 ($800 X 4.3 weeks). When plaintiff's monthly earnings of $450 are included, the monthly household income totals $4758, which is more than $1000 in excess of the expenses listed on her CIS in evidence at the plenary hearing, and $200 in excess of the expenses in her CIS filed at the time of the divorce. Thus, the finding that plaintiff's current lifestyle is below the marital standard is inconsistent with the record.

We are cognizant of our obligation to accord special deference to the factual findings of a family court because of its "expertise in the field of domestic relations." Cesare v. Cesare, 154 N.J. 394, 412 (1998). However, where, as here, we conclude that such findings are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[,]" Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963), we need not consider those findings binding on appeal.

The record before us leads to the ineluctable conclusion that plaintiff failed to sustain her burden to show that she maintains a need for alimony notwithstanding her cohabitation. "The extent of actual economic dependency . . . must determine the duration of support as well as its amount." Gayet, supra, 92 N.J. at 154. We are satisfied that "the economic benefit enuring to [plaintiff] . . . [is] sufficiently material to justify relief. Under this economic needs test the reduction in alimony is granted in proportion to the contribution of the cohabitor." Konzelman v. Konzelman, 158 N.J. 185, 196 (1999).

Plaintiff's own testimony supports the conclusion that her paramour's "contribution" helps to fund a lifestyle at least comparable to, if not slightly in excess of, the marital lifestyle. "[T]he autonomous decision of the dependent former spouse to form new bonds creating mutual obligations of support must be recognized, and should, therefore, supplant the legal vestiges of the prior marriage." Ibid.

 
The order of September 11, 2008 is reversed and defendant's alimony obligation to plaintiff is hereby terminated. The matter is remanded to the Family Part for the re-calculation of child support.

The record provided on appeal does not include the CIS submitted in 2006, but the trial judge relied upon it in his decision.

(continued)

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A-1070-08T1

February 4, 2010