JAMES R. POLLEY v. PATRICIA L DOWER-POLLEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JAMES R. POLLEY,

Plaintiff-Appellant,

v.

PATRICIA L. DOWER-POLLEY,

Defendant-Respondent.

April 8, 2014

 
Before Judges Alvarez and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-953-07.

Mark H. Sobel argued the cause for appellant (Greenbaum, Rowe, Smith, and Davis LLP, attorneys; Mr. Sobel and Dina M. Vanides, of counsel and on the briefs; Lisa B. DiPasqua, on the brief).

Patricia L. Dower-Polley argued the cause pro se.

PER CURIAM

Plaintiff James R. Polley appeals the September 19, 2012 Family Part decision denying his motion to terminate alimony based on the alleged cohabitation by defendant Patricia L. Dower-Polley. No discovery or plenary hearing was ordered. We affirm.

The parties' property settlement agreement, appended to their December 17, 2008 divorce decree, stated that plaintiff's term1 alimony payment of $11,500 monthly would end should, among other enumerated events, defendant "cohabit[] in a relationship tantamount to marriage in accordance with New Jersey case law." In 2009, plaintiff unsuccessfully attempted to terminate alimony based on defendant's relationship with K.M.

In support of this application, among other things, plaintiff submitted the certification of his fiancée L.L. Over the course of two years L.L. frequently transported the parties' children, and apparently obtained from them information regarding K.M.'s activities with the family. In addition, L.L. stated that she had frequently seen K.M. working on some decking at defendant's home.

We note that, ironically, in plaintiff's supporting certification, he says it "is outrageous and is causing unnecessary hardship to our children" that they have allegedly been told not to discuss K.M. in front of plaintiff. We encourage counsel to explain to their respective clients the self-evident hazards of involving their children in their disputes.

Plaintiff also submitted a report from a private investigator who observed K.M.'s vehicle at defendant's home some forty-nine out of sixty-nine days during which surveillance was conducted. He summarized interviews with local police and firefighting personnel who claimed that on several occasions when responding to calls from defendant's home, they spoke with K.M. and assumed he lived there. Lastly, the investigator interviewed a neighbor with whom defendant has an ongoing dispute, who told him K.M. was frequently at defendant's home.

In response, defendant certified that, although she and K.M. spend most of their time together on the weekends, they had never cohabited. She does the bulk of the household chores, her nephew and K.M. both worked on her deck, and she alone paid for the materials. They separately pay their living expenses. Defendant denied that she took most of her vacations with K.M.

In his certification, K.M. said that he maintains a separate home in another town, does not eat with defendant's family on a regular basis, and, in fact, "dine[s] out in Morristown almost every night." When police or fire personnel responded to calls from defendant's home, he did not feel it appropriate or necessary to clarify his status in the household.

Defendant also submitted her housekeeper's certification; she cleans K.M.'s home as well. She stated that K.M. does not keep personal belongings in defendant's home and, conversely, that his house is fully furnished, and contains all of his personal belongings. The housekeeper denied seeing K.M. other than "rarely" at defendant's premises.

Defendant's exhibits documented her payment of typical household expenses from her own accounts, including mortgage, electricity, and phone service. K.M. supplied a confirmation of his current lease agreement and copies of his utility statements. Additionally, defendant provided an affidavit from one of K.M.'s neighbors, stating that he saw K.M.'s vehicle parked in his driveway numerous times each week and often heard his television or radio playing in the apartment.

In her written decision, the Family Part judge noted the wide latitude vested in family courts to modify alimony obligations. Whether or not alimony should be modified rested within the court's sound discretion. Relying upon Konzelman v. Konzelman, 158 N.J. 185, 202 (1999), she observed that cohabitation requires more than just a common residence, although that is an important factor. The key is whether the relationship is similar to a family unit in a relatively permanent household. Ibid. In that regard, the judge said, despite the observations of defendant's neighbor and the statements by officers, the assertions in the investigative report in the final analysis relied upon

the presence of [K.M.]'s vehicle on the defendant's premises[] . . . [which] merely evidences that the defendant and [K.M.] spend considerable time together, as people in relationships often do. . . . Plaintiff's claim that [K.M.]'s residence was a sham residence is equally unsubstantiated.

Therefore, the court concluded that plaintiff had not established "any indicia of a marital-type relationship."

The judge found it consequential that plaintiff did not demonstrate an economic benefit to either defendant or K.M. from their relationship as discussed in the seminal case of Gayet v. Gayet, 92 N.J. 149 (1983). Plaintiff had failed to advance "evidence of the factors articulated in Konzelman, such as intertwined finances, sharing of living expenses and household chores, or recognition of the relationship in the couple's social and family circle."

The judge also denied plaintiff's request for discovery, including discovery from K.M., because of plaintiff's failure to establish a prima facie case of cohabitation. She denied the request for a plenary hearing for the same reason. In the judge's view, no genuine issue of material fact existed. She also found, contrary to defendant's contention, that plaintiff's application was not filed for harassment purposes and therefore denied defendant's request for counsel fees.

The Family Part judge denied the parties' request for oral argument, explaining in her ten-page statement of reasons that she exercised her discretion in doing so because: "[b]ased upon the papers submitted with the plaintiff's motion and defendant's reply, the [c]ourt does not believe oral argument will advance its understanding of the issues."

The scope of appellate review of a trial court's findings of fact is limited. Such findings are binding on appeal when supported by "adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Family courts have particular expertise in family matters, and therefore reversal is warranted only when factual findings are "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied 40 N.J. 221 (1963)). As always, we review the judge's legal conclusions de novo. Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995); Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007). In this case, plaintiff claims that the motion judge erred in her interpretation of the facts, her definition of "cohabitation," and her failure to order discovery, schedule a plenary hearing, or even allow oral argument.

Several factors aid a court in determining whether a couple's relationship indeed "bears the generic character of a family unit as a relatively permanent household." Gayet, supra, 92 N.J. at 155. A moving party must establish that the living arrangement at issue is "tantamount to marriage and has reduced or ended the need for alimony." See Reese v. Weis, 430 N.J. Super. 552, 571 (App. Div. 2013). Because each motion to modify an alimony obligation is particular to the characteristics and circumstances of the individual family, we "give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters." Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009).

In this case, we agree with the trial judge that plaintiff's factual assertions, even when viewed in the most favorable light, do not establish cohabitation. K.M. maintains his own residence separate and apart from defendant. K.M. pays his own related expenses, such as utility bills, separate and apart from defendant. His neighbor certified that he sees K.M.'s car there with some frequency and hears sounds indicating occupancy emanating from the apartment. Despite K.M. spending nights in defendant's home, occasionally vacationing with her, and coincidentally having been present when emergencies occurred and police were called, plaintiff proved nothing more than an ongoing and stable romantic relationship. The judge's factual determinations were supported by the record, and they add up to less than the type of relationship required by relevant precedent. The judge, in our view, did not err in her definition of the term "cohabitation."

In Reese, supra, 430 N.J. Super. at 570, we reiterated the well-established principle that "cohabitation of a dependent spouse constitutes an event of changed circumstances, which requires further review of the economic consequences of the new relationship and its impact on the previously imposed support obligation." Completion of discovery and a plenary hearing, which would have enabled "further review of the economic consequences of the new relationship and its impact on the previously imposed support obligation," ibid., was not necessary because the threshold showing of cohabitation had not been made. Therefore, contrary to plaintiff's contentions, no genuine issue of material fact necessitated discovery and a hearing. See Palmieri v. Palmieri, 388 N.J. Super. 562, 564 (App. Div. 2006).

Finally, we do not disturb the judge's decision regarding oral argument. As stated in Rule 5:5-4, oral argument may be dispensed with when, in the opinion of the court, the matter has been fully developed in written submissions. Plaintiff's exhaustive submissions and defendant's responses sufficed.

Affirmed.

1 The agreement provided the payments would cease after seven years.