JOHN ANTHONY LAMAGRA v. DEBORAH LAMAGRA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4854-09T4

JOHN ANTHONY LAMAGRA,

Plaintiff-Appellant,

v.

DEBORAH LAMAGRA,

Defendant-Respondent.

____________________________________________

May 6, 2011

 

Submitted March 22, 2011 - Decided

 

Before Judges Wefing, Payne and Hayden.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-1348-04-W.

 

Jacobowitz, Defino, Latimer & O'Toole, attorneys for appellant (Darren O'Toole, on the brief).

 

Hoffman & Hoffman, attorneys for respondent (Jeannette A. Hoffman, on the brief).
 

PER CURIAM

In this post-judgment matrimonial matter, plaintiff John Anthony LaMagra appeals provisions of the order dated April 30, 2010, denying his motion to modify or terminate alimony payments. For the reasons that follow, we remand for a plenary hearing on the issues of cohabitation and fraud.

I.

Plaintiff John Anthony LaMagra and defendant Deborah LaMagra were married on June 5, 1983. On March 30, 2005, a Final Judgment of Divorce, which incorporated the parties Property Settlement Agreement ( PSA ), was entered. The PSA provided for defendant to receive alimony payments of $450 per week "until the earlier of the death of either party or the remarriage of the Wife, or by operation of New Jersey Law." At the time that the PSA was executed, plaintiff knew that defendant was residing with her paramour Karen Hanson but agreed to pay permanent alimony believing that the arrangement was temporary. Under the PSA the husband could make a motion to modify or terminate alimony "based upon the living arrangements of the Wife."

On March 22, 2010, plaintiff filed a motion to reduce or terminate his alimony payments on the grounds that defendant was cohabiting and that she had obtained the alimony award by fraud or misrepresentation. One month prior to the divorce, defendant had submitted a certification stating that her paramour was a student from England temporarily in the United States on a two-year student visa who was unable to work for at least one year. Defendant also certified that, because of difficulties in the relationship, her paramour planned to return to London shortly. Plaintiff stated that he relied upon this certification in agreeing to pay alimony.

Plaintiff asserted in the motion papers that he had only recently learned that the information concerning the paramour was false. After hiring an investigator in 2009, plaintiff received information that the paramour had been employed by FSI Ltd. from July 16, 2001 until May 2009. For the motion, he produced reports from the investigation and a certification from FSI Ltd.

The investigator also reported that defendant's paramour had lived in the marital home from 2004 until July 2009, when she rented an apartment in Woodbridge to be closer to her new job. Additionally, the investigator reported the paramour still spent weekends at defendant's home, and the defendant spent a substantial amount of time during each week at the paramour's apartment. Plaintiff also claimed that defendant provided her paramour with a vehicle and automobile insurance. The investigator noted that the couple used their two vehicles interchangeably.

Defendant denied lying about the seriousness of her relationship with her paramour at the time of the divorce. Defendant asserted that at that time their relationship was in fact temporary, but it changed shortly thereafter. Defendant further denied that she was still cohabiting with her paramour. Defendant stated that both she and her paramour had always paid their own bills. She admitted helping her paramour obtain a car because she could not qualify for a loan. Defendant rejected as false plaintiff s claim that he had only recently learned of the paramour s continued residence in the former marital home until 2009. She alleged that she and her paramour had openly been a couple for many years and had frequently been together at events for the children when plaintiff was present.

On April 30, 2010, the motion judge entered an order denying plaintiff s motion. The judge found that plaintiff had not made out a prima facie case for cohabitation as defendant and her paramour had ceased living together for over one year. The judge also denied plaintiff's motion to terminate the PSA as having been obtained by fraud or misrepresentation. This appeal followed.

II.

On appeal, plaintiff raises the following arguments for our consideration:

POINT I. THE DEFENDANT IN THIS MATTER FAILED TO MEET THE REBUTTABLE PRESUMPTION THAT SHE HAD NOT IN FACT BEEN COHABITATING AFTER THE PRIMA FACIE CASE SHOWN BY THE PLAINTIFF AND ACCORDINGLY the trial court erred by not terminating the alimony obligation of the plaintiff in this matter.

 

POINT II. The trial court in this matter erred by failing to vacate the property settlement agreement based on the defendant/respondent's fraud and misrepresentation both during the course of the divorce process and at the time of the uncontested hearing.

 

POINT III. the lower court in this matter erred by not setting a discovery schedule and awarding the appellant in this matter a plenary hearing regarding the factual disputes raiseD in both the plaintiff/appellant's motion and the defendant/respondent's cross motion.

 

Having reviewed the record in light of these contentions and the applicable law, we have concluded that plaintiff is entitled to discovery and a plenary hearing and we are remanding for that purpose.

Our analysis of this matter begins with certain settled legal principles. A trial judge has broad discretion in reviewing an application to modify alimony. Storey v. Storey, 373 N.J. Super. 464, 470 (App. Div. 2004) (citing N.J.S.A. 2A:34-23). "Whether an alimony obligation should be modified based upon a claim of change of circumstances rests within the Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (citing Innes v. Innes, 117 N.J. 496, 504 (1990)).

To vacate a trial court's findings in a proceeding modifying alimony, an appellate court must conclude that the trial court clearly abused its discretion, failed to consider "all of the controlling legal principles," or it must otherwise be "well satisfied that the finding[s] [were] mistaken," or that the determination could not "reasonably have been reached on sufficient credible evidence present in the record after consideration of the proofs as a whole."

 

[Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993) (citations omitted).]

 

Courts have the equitable power to establish alimony and support orders and "to revise such orders as circumstances may require." Crews v. Crews, 164 N.J. 11, 24 (2000) (citing Lepis v. Lepis, 83 N.J. 139, 145 (1980)). In addition, N.J.S.A. 2A:34-23 authorizes modification of all support orders, including permanent alimony, "as circumstances may require."

Cohabitation may qualify as "changed circumstances" warranting modification or termination of alimony payments set forth in a PSA. Lepis, supra, 83 N.J. at 151. The PSA need not specifically list cohabitation as a reason for termination; it will be implied when the agreement is silent. Gayet v. Gayet, 92 N.J. 149, 155 (1983).

Cohabitation occurs when there is "an intimate relationship in which the couple has undertaken 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." Konzelman v. Konzelman, 158 N.J.185, 202 (1999). In addition, cohabitation requires "stability, permanency and mutual interdependence." Ibid. The court must evaluate whether the relationship "bears the 'generic character of a family unit as a relatively permanent household.'" Gayet, supra, 92 N.J. at 155 (quoting State v. Baker, 81 N.J.99, 108 (1979)). Furthermore, the court has stated "cohabitation is not defined or measured solely or even essentially by 'sex' or even by gender." Konzelman, supra, 158 N.J. at 202.

Absent a contrary provision in the PSA, cohabitation is a changed circumstance only if coupled with economic consequences. Konzelman, supra, 158 N.J. at 196. The economic benefit enuring to either cohabitor must be sufficiently material to justify relief. Gayet, supra, 92 N.J. at 153-54. 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, supra, 158 N.J. at 196.

A prima facie case of cohabitation must be established by the moving party before further discovery or a plenary hearing is needed. Lepis, supra, 83 N.J. at 157. Once a prima facie case is established then the burden of proof shifts to the dependent spouse to contest the alleged cohabitation. Ozolins v. Ozolins, 308 N.J. Super. 243, 248-49 (App. Div. 1998). For example, in Gayet, the defendant's admission that for three and one-half months her paramour stayed overnight at her home approximately four nights a week was enough to warrant further discovery and a plenary hearing analyzing whether there was in fact cohabitation. Gayet, supra, 92 N.J. at 150.

Where there are genuine issues of material fact the trial court judge should hold a plenary hearing. Harrington v. Harrington, 281 N.J. Super.39, 47 (App. Div. 1995). "[T]rial judges cannot resolve material factual disputes upon conflicting affidavits and certifications." Ibid. Only when the trial judge determines that there is no issue of material fact may the issue be decided on the papers. Segal v. Lynch, 417 N.J. Super.627, 642 (App. Div. 2011).

In the present case, plaintiff produced evidence that, although the defendant's paramour obtained her own residence, defendant spends a significant amount of time during the week at the paramour s residence and her paramour spends the majority of weekends at defendant s residence. Defendant and her paramour acknowledge that they have held themselves out to their friends and family as a couple for many years. Defendant admitted that she took out a car loan and pays insurance on the vehicle her paramour drives. Additionally, her paramour bought a washer and dryer for defendant's home. They also used their vehicles interchangeably.

Based upon the above evidence, plaintiff has established a prima facie case of cohabitation. On the other hand, defendant denied that she and her paramour were cohabiting. Living together is just one consideration in evaluating whether the couple has "undertaken duties and privileges commonly associated with marriage. Konzelman, supra, 158 N.J.at 202. In light of the contested facts the trial judge should have allowed further discovery and held a plenary hearing to determine whether the credible facts demonstrate cohabitation. The trial court chose to believe defendant's account based upon the motion papers alone. We remand for a plenary hearing for the court to make factual findings in order to determine whether defendant is cohabiting and, if she is, any economic consequences from the cohabitation.

III.

Plaintiff also moved under Rule4:50-1(f) to have the PSA set aside due to the alimony provision having been procured by fraud or misrepresentation. A decision to vacate a judgment lies within the sound discretion of the trial judge, guided by principles of equity. Hous. Auth. of Morristown v. Little, 135 N.J.274, 283 (1994). The trial court's decision will not be overturned unless there has been a clear abuse of discretion. Ibid.; see alsoEaton v. Grau, 368 N.J. Super.215, 222 (App. Div. 2004).

Courts have the authority to modify a spousal agreement on the basis of unconscionability, misrepresentation, or fraud. Addesa v. Addesa, 392 N.J. Super.58, 66 (App. Div. 2007). An application for substantial modification of a property settlement agreement may be made pursuant to Rule4:50-1(f). Connor v. Connor, 254 N.J. Super. 591, 601 (App. Div. 1992). In order to meet the stringent requirements of Rule4:50-1(f), the moving party must make a "showing of fraud, misconduct or mistake in the negotiations or a showing of fundamental inequity or unfairness in the agreement." Id.at 601; see alsoEdgerton v. Edgerton, 203 N.J. Super.160, 171 (App. Div. 1985). Relief from the judgment will only be granted under exceptional and compelling circumstances. Schwartzman v. Schwartzman, 248 N.J. Super.73, 77 (App. Div. 1991).

Defendant argued that it was too late to modify the judgment. A motion alleging fraud or misrepresentation under Rule 4:50-1(c) must be brought within one year of the judgment. R. 4:50-2. However, a motion under Rule 4:50-1(f) may be brought within a reasonable time, which is not limited to one year after the judgment. R. 4:50-2. If the request for relief under the Rule is premised on contested material facts, an evidential hearing must be provided. Eaton, supra, 368 N.J. at 222.

Plaintiff claimed that he did not learn that defendant's statements about both the temporary nature of the relationship and the employment of her paramour were false until 2009. As such, he argued that his motion under Rule 4:50-1(f) was brought within a reasonable time. In opposition, defendant argued that plaintiff had known about the continuing relationship since the divorce so his motion was untimely. Defendant also argued that since he knew about the relationship since 2004 and did nothing until 2010, plaintiff was foreclosed from applying to set aside the PSA under the doctrine of laches.

Once again, as to both the application to set aside the judgment and the defense of laches, the material facts were in dispute. The trial judge simply accepted defendant's contention that the relationship had ended. Yet the certifications created a factual dispute as to when plaintiff learned of the long-term nature of the relationship as well as the employment of the paramour. Resolution of this factual dispute requires a determination based upon credibility findings at a plenary hearing. In this case, plaintiff presented sufficient material facts to warrant further discovery and a plenary hearing on his motion to vacate the PSA.

R

emanded for further proceedings on the issues of cohabitation and fraud or misrepresentation. We do not retain jurisdiction.