SIMA MILGRAUM v. SANDY SAUL MILGRAUM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5655-09T4

SIMA MILGRAUM,

Plaintiff-Respondent,

v.

SANDY SAUL MILGRAUM,

Defendant-Appellant.

______________________________________________________

Argued May 11, 2011 Decided May 25, 2011

Before Judges Fisher and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-0005-03.

Ida Cambria argued the cause for appellant (Perez & Bombelyn, attorneys; Ms. Cambria, on the brief).

Patrick T. Collins argued the cause for respondent (Franzblau Dratch, attorneys; Mr. Collins, on the brief).

PER CURIAM

The parties to this matrimonial matter were married in 1980 and had seven children.1 When the 1998 judgment of divorce was entered, all the children were unemancipated.

This suit has been before us on three prior occasions, all predominantly dealing with the alimony awarded in favor of plaintiff Sima Milgraum. In the first appeal, we concluded, among other things, that the trial judge erred in considering marital fault in fixing the alimony award and remanded for reconsideration of the appropriate level of alimony. Milgraum v. Milgraum, No. A-2423-98 (App. Div. July 7, 2000) (slip op. at 9-10). In the second appeal, we remanded due to the trial judge's "anomalous" imposition, without explanation, of "a comparatively more onerous alimony award" despite our exclusion of marital fault from the alimony calculus; to ensure a fair consideration of the proper alimony factors, we transferred the action from Middlesex to Union County. Milgraum v. Milgraum, No. A-3946-00 (App. Div. Jan. 27, 2003) (slip op. at 5-6).

Thereafter, Judge Kathryn A. Brock conducted a hearing and rendered a fifty-three page letter opinion containing her detailed findings of fact and conclusions of law. Pursuant to that decision, Judge Brock issued an order on December 23, 2005, that awarded plaintiff permanent alimony in the amount of $5929 per week payable through the probation department. The order also memorialized that defendant Sandy Milgraum's child support obligation, which had not been previously appealed, would remain at $187,970 per year, $60,000 of which was to be paid directly to the children's schools and the balance paid to plaintiff, through the probation department, at the rate of $2461 per week. In the third appeal that followed, we affirmed substantially for the reasons set forth in Judge Brock's written decision. Milgraum v. Milgraum, No. A-2840-05 (App. Div. June 13, 2007) (slip op. at 4-5).

On January 25, 2008, Judge David J. Issenman disposed of numerous issues raised in cross-motions filed by the parties, and concluded that a hearing was required for numerous reasons, including whether and when any children had been emancipated as well as defendant's ability to pay support. Ultimately, on June 11, 2008, the judge executed a consent order by which the parties stipulated the dates their four oldest children were emancipated and agreed defendant was entitled to a $354,006 credit against his child support arrears. The order also directed that defendant's child support obligation would be $1662 per week, effective June 1, 2008. In addition, the order contained the parties' agreement that defendant's alimony obligation would continue uneffected.

On December 31, 2008, plaintiff remarried. She timely informed the probation department of this fact.

Defendant was arrested in January 2010 and brought before a Middlesex County judge due to the significant amount of arrears that had accrued on his support obligations. On January 27, 2010, the judge ordered defendant to pay $16,000 by February 17, 2010; he also imposed other requirements and conditions, and raised the spectre of a suspension of defendant's medical license.

In April 2010, among other things, defendant moved for: an amendment of the emancipation dates of the four oldest children; emancipation dates for the three youngest children; the transfer of his probation account from Middlesex to Union County; a plenary hearing on his ability to pay support arrearages2; and a retroactive termination of his alimony obligation to 2002, based on his claim that plaintiff had then cohabited with another man.3 In his moving papers, defendant provided a certification claiming he was unaware of the June 11, 2008 order or plaintiff's remarriage until his January 2010 arrest.4

Judge Kenneth J. Grispin heard oral argument regarding defendant's multi-faceted motion and, on June 14, 2010, entered an order that, among other things: (1) denied defendant's request that the emancipation dates for the four oldest children be altered, concluding that the June 11, 2008 order was a product of the parties' consent and defendant had failed to seek relief for nearly two years since its entry; (2) determined that one of the three youngest children was emancipated as of the date of his marriage and awarded defendant a credit against his arrears as a result; (3) denied defendant's request that the two youngest children be declared emancipated, because they were still pursuing their education; (4) denied defendant's motion to vacate or stay the Middlesex County judge's January 27, 2010 order; (5) denied defendant's request for a transfer of enforcement proceedings to Union County; (6) denied defendant's application for a hearing on his ability to pay "without prejudice because [d]efendant failed to submit any financial information"; and (7) denied defendant's motion to retroactively modify the alimony obligation, based on the claim of cohabitation, to a date earlier than plaintiff's remarriage.

Defendant appealed the June 14, 2010 order, presenting the following arguments for our consideration:

I. THE COURT ERRED IN FAILING TO TRANSFER THE PROBATION ACCOUNT TO THE SAME COUNTY TO WHICH THE MATTER HAD BEEN TRANSFERRED DUE TO CONFLICT.

II. THE COURT ERRED IN FAILING TO ALLOW DISCOVERY AND A HEARING AS TO TERMINATION OF ALIMONY WHERE A PRIMA FACIA CASE OF COHABITATION BY THE DEPENDENT EX-WIFE WAS ESTABLISHED.

III. THE COURT ERRED IN DENYING DEFENDANT'S REQUEST TO MODIFY AND OR SET EMANCIPATION DATES FOR EACH OF THE SEVEN CHILDREN OR TO HOLD A HEARING AS TO SAME.

IV. THE COURT ERRED IN FAILING TO VACATE OR STAY THE EARLIER ORDER OF JANUARY 27, 2010 ISSUED IN MIDDLESEX AND TO GRANT DEFENDANT A PLENARY HEARING AS TO HIS ABILITY TO PAY ALLEGED ARREARAGES.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments regarding Points II and III.

In Point II, defendant argues that plaintiff cohabited for approximately six years before his alimony obligation was terminated when she remarried. Based on this allegation, defendant claimed the right to a credit against the alimony arrears that accrued from the date of cohabitation until the date of plaintiff's remarriage.

A court may modify alimony upon a showing of "changed circumstances." Lepis v. Lepis, 83 N.J. 139, 146 (1980). Cohabitation is a changed circumstance, and forms the basis for an alimony modification if "the relationship has reduced the financial needs of the dependent former spouse." Gayet v. Gayet, 92 N.J. 149, 150 (1983).

Cohabitation is defined as "a domestic relationship whereby two unmarried adults live as husband and wife." Konzelman v. Konzelman, 158 N.J. 185, 202 (1999). That is, it is a "close and enduring" relationship, not just a "mere romantic, casual or social relationship," that "requires more than a common residence, although that is an important factor." Ibid. Cohabitation occurs when there is an "intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage"; these 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." Ibid.

Defendant failed to demonstrate that such a relationship was formed prior to plaintiff's remarriage. In support of his application, defendant either relied on broad, unsupported generalities or, when more specific, referred to -- as "newly discovered evidence" -- testimony given by plaintiff at the 2005 trial and statements made by her in pleadings filed on even earlier occasions. Defendant's belief that this information was "newly discovered," or that his allegations were of sufficient weight to permit discovery and a plenary hearing on the subject, are wholly without merit. And whether the timeliness of defendant's application is judged by the limits contained in Rule 4:50-2 or by the doctrine of laches, we have been presented with no legitimate reason for questioning the judge's implicit determination that defendant unreasonably delayed to plaintiff's prejudice in seeking relief so many years after the alleged cohabitation commenced. See Knorr v. Smeal, 178 N.J. 169, 180-81 (2003).

As for Point III, we would simply add that defendant's application for the fixing of emancipation dates for the two youngest children is without merit, as are the other aspects of his emancipation argument. Once a court, as here, correctly determines that a child is not emancipated, it is not appropriate for that court to provide an advisory opinion as to when that child will become emancipated. See, e.g., Boardman v. Boardman, 314 N.J. Super. 340, 345-47 (App. Div. 1998). It is for the obligor to seek relief once the circumstances supporting emancipation have occurred.

1The oldest child was born in 1981 and the youngest in 1990.

2On the return date of this motion, it was observed that defendant's support arrears were nearly $2,700,000.

3Defendant claimed plaintiff began cohabiting with one man in 2002 and, starting in 2003, with her current husband.

4Defendant recounted how, once released from jail, he met with his former attorney, who had been disbarred, at the latter's home. Defendant described how his file was "in shambles, strewn about a room in his [former attorney's] home." At that time, according to defendant, his former attorney provided -- for the first time -- a copy of the June 11, 2008 order.