JEAN MARIE AZZARI v. LOUIS AZZARI, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4340-09T1

JEAN MARIE AZZARI,

Plaintiff-Respondent,

v.

LOUIS AZZARI, JR.,

Defendant-Appellant.

___________________________________________

April 28, 2011

Submitted February 14, 2011 Decided

Before Judges Rodr guez and Grall.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1824-99S.

Borger Jones Matez & Keeley-Cain, attorneys for appellant (Thomas M. Keeley-Cain, on the brief).

Kearney and Associates, attorneys for respondent (Linda L. Campbell, on the brief).

PER CURIAM

Defendant Louis Azzari, Jr., appeals from the March 11, 2010, Family Part order reducing his financial obligations to his ex-wife, Jean Marie Azzari, following a determination that Jean Marie cohabited with Gerard Consulmagno. Louis disagrees with the amount of the reduction.

Louis and Jean Marie Azzari were divorced on March 1, 2000, after twenty-one years of marriage. The judgment incorporated stipulations between the parties. One of these provides:

[Louis] shall pay PERMANENT ALIMONY to [Jean Marie] in the amount of $235 per week. Alimony shall terminate in the event of [Jean Marie's] remarriage.

It is undisputed that Jean Marie has not remarried. The agreement is silent regarding cohabitation. Therefore, any modification of Jean Marie's spousal support award cannot be based on the parties' stipulation, but on caselaw regarding cohabitation by a supported spouse.

Jean Marie and Consulmagno began residing together in May 2006. In June 2008, Louis was diagnosed with end-stage renal disease. As a result, Louis sent his former spouse a handwritten note advising her of his medical condition and that he would stop his alimony payments. Apparently, Jean Marie acquiesced to this unilateral termination of spousal support for at least one year. The following summer, Jean Marie and Consulmagno started the process of buying a home together. In October 2009, Jean Marie moved to enforce litigant's rights. Louis cross-moved for modification, seeking termination or reduction of alimony based on allegations of cohabitation and changed circumstances. In December of 2009, Jean Marie and Consulmagno completed the purchase of a home in joint names.

In February 2010, the judge held an evidentiary hearing, at which Jean Marie and Consulmagno were the sole witnesses. The judge found that Jean Marie had cohabitated with Consulmagno since May 2006. As a result of Consulmagno's financial contribution to the joint household, Jean Marie's living expenses had decreased. Therefore, the judge reduced Louis's alimony obligation from $1010 per month ($235 times 4.3 weeks a month) to $500 per month. Both parties' requests for attorney fees were denied.

Jean Marie does not appeal from this decision. In fact, she argued at trial that if her spousal support were to be reduced, it should be to $500 a month. Louis appeals raising the following contentions: (a) Jean Marie failed to file a Family Part Case Information Statement (CIS) as required by Rule 5:5-2(a); (b) the judge abused his discretion to allow Jean Marie to substitute limited testimony for the required Family Part CIS; and (c) Jean Marie failed to produce evidence and the judge failed to make the required factual findings relevant to the financial needs of Jean Marie and the financial contribution of Consulmagno pursuant to Gayet v. Gayet, 92 N.J. 149, 155 (1983) and Ozolins v. Ozolins, 308 N.J. Super. 243, 248-49 (App. Div. 1998). We affirm in part, reverse in part and remand.

We must accept a matrimonial judge's determinations regarding alimony when the judge's factual findings are supported by substantial credible evidence in the record, and the judge has not abused her discretion. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (holding that factual findings of the Family Part must be upheld if they are based on adequate, substantial, credible evidence); Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (holding that a finding of changed circumstances relevant to alimony is reviewed for abuse of discretion).

Termination or modification of alimony based on the supported spouse's cohabitation with another is warranted if the new relationship reduces the financial needs of the dependent spouse. Gayet, supra, 92 N.J. at 150. The fact finder must determine if there is a relationship that amounts to cohabitation, Konzelman v. Konzelman, 158 N.J. 185, 202 (1999), which results in "actual economic benefit to the spouse or the cohabitant." Ozolins, supra, 308 N.J. Super. at 245.

Cohabitation is "a domestic relationship whereby two unmarried adults live as husband and wife." Konzelman, supra, 158 N.J. at 202. It involves a "close and enduring" relationship that "requires more than a common residence, although that is an important factor." Ibid. Cohabitation is "an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage." These include, but are not restricted 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. Thus, cohabitation is more than "[a] mere romantic, casual or social relationship," but has "stability, permanency and mutual interdependence." Ibid. "[A] showing of cohabitation creates a rebuttable 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." Ozolins, supra, 308 N.J. Super. at 245.

Here, the judge found that there was a relationship between Jean Marie and Consulmagno that fell within the definition of cohabitation. The judge also found that the cohabitation resulted in an actual economic benefit to Jean Marie. These findings are supported by the record. Therefore, we affirm the portion of the decision, which held that the cohabitation of Jean Marie and Consulmagno warranted some reduction in the amount of alimony.

However, the judge's finding that the economic advantage to Jean Marie warranted a 49.5 percent reduction of permanent alimony needs to be explored more thoroughly. We cannot discern his reasons for such a conclusion. He simply gave us an arithmetical explanation of how he got to $500 a month, but he did not explain why $500 was the appropriate amount of support. In addition, the judge should explore whether Louis's physical condition has changed his ability to earn income.

Accordingly, we affirm in part and remand to permit the judge to order appropriate discovery, including a current CIS for each party, and make specific findings as required by Konzelman and Ozolins.