BARBARA THUL v. STEPHEN THUL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

BARBARA THUL,

Plaintiff-Respondent,

v.

STEPHEN THUL,

Defendant-Appellant.

__________________________________________

February 27, 2014

Submitted October 29, 2013 Decided

Before Judges Hayden and Rothstadt.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-692-03.

Vastola, Fackelman & Sullivan, attorneys for appellant (Dennis M. Fackelman, on the brief).

Ramatowski, Spilka & Schwartz, attorneys for respondent (Jean M. Ramatowski, on the brief).

PER CURIAM

Defendant, Stephen Thul, appeals from an October 17, 2012 Family Part order denying his motion to completely eliminate his alimony obligation to plaintiff, Barbara Thul, due to her cohabitation with a third party. For the reasons that follow, we affirm.

We discern the following facts from the record. Plaintiff and defendant were married in May 1976. They had three children, born in 1978, 1981, and 1986. After approximately twenty-seven years of marriage, plaintiff filed for divorce in September 2002, and the couple divorced in March 2004.

In the July 14, 2004 amended dual final judgment of divorce (AJOD), the judge ordered defendant to pay $350 per week to plaintiff in permanent alimony effective March 23, 2004. The order provided that defendant's alimony obligation would terminate at the earliest of his death, plaintiff's death, plaintiff's remarriage, or pursuant to law.

At the time, plaintiff, who had a high school diploma, was working full-time at a florist shop earning $480 per week. The court imputed an income of $540 per week to plaintiff. Defendant worked as an electrician for a union electrical contractor and owned his own electrical business. The court determined that defendant's maximum earning potential at the time of the divorce was $90,000 per year.

In December 2007, plaintiff purchased a florist business, which subsequently struggled financially. In June 2009, plaintiff began a new romantic relationship and by December 2009, her paramour moved into plaintiff's house with all of his belongings and his dog. They agreed that he would pay her a monthly contribution of $500.

Before moving into plaintiff's house, the paramour rented an apartment, paying $1000 a month in rent and approximately $150 in utilities. Once he moved into her house, the paramour assisted plaintiff around the house by maintaining the lawn, shoveling snow, performing maintenance on the house, occasionally buying groceries, and paying for restaurant meals. The paramour also built a deck for plaintiff's house with materials provided by plaintiff. Plaintiff and the paramour regularly attended social and family functions as a couple. They became engaged to be married in October 2011, but later decided not to marry because of the paramour's difficult business situation.

The paramour owned his own business, which he testified was doing poorly and was being audited by the Internal Revenue Service (IRS). He failed to produce many recent financial documents and provided his tax returns from 2008 to 2010 as he had not filed taxes in 2011. He reported an annual income around $20,000. Plaintiff and the paramour did not share bank accounts, assets, or ownership interests in each other's businesses.

Defendant remarried in March 2009. At the time of the hearing, plaintiff and defendant's two youngest children, who were both fully employed, resided with defendant and his new wife. Defendant's wife made approximately $50,000 per year.

In 2012, the IRS audited defendant's 2009 federal tax return. The IRS disallowed deduction of defendant's alimony payments because of plaintiff's cohabitation. Defendant won his appeal of the IRS audit, but spent approximately $1000 in accounting costs as a result.

On April 23, 2012, defendant filed a motion to eliminate his alimony obligation and life insurance maintenance requirement, arguing that plaintiff's cohabitation with the paramour constituted a change in circumstances warranting relief. Defendant also sought reimbursement from plaintiff of the $1000 he incurred as a result of the IRS audit. Plaintiff cross-moved for counsel fees.

On June 14, 2012, Judge Alberto Rivas found that defendant had established a prima facie case of changed circumstances under Lepis v. Lepis, 83 N.J. 139 (1980), and ordered a plenary hearing to determine whether a modification of defendant's alimony obligation was warranted. At the October 4, 2012 plenary hearing, plaintiff, defendant, and the paramour testified.

On October 17, 2012, Judge Rivas denied defendant's motion to terminate his alimony obligation to plaintiff, but reduced defendant's obligation from $350 per week to $235 per week. The judge based this reduced amount on an analysis of the economic and non-economic benefits to the paramour and plaintiff and the amount of support plaintiff still needed. The judge also denied plaintiff's motion for counsel fees and ordered plaintiff to reimburse defendant the expense he incurred for the IRS challenge.1 This appeal followed.

On appeal, defendant argues that the trial judge erred in not eliminating or further reducing his alimony obligation. First, defendant asserts that plaintiff failed to demonstrate a continued need for support. Specifically, defendant contends that the judge only credited the paramour's monetary contribution while failing to credit his non-monetary contributions, which defendant estimates amount to a minimum of an additional $550 per month. Second, defendant claims that plaintiff is basically supporting the paramour, which warrants elimination or drastic reduction of defendant's obligation. Finally, defendant argues that plaintiff and the paramour's relationship is tantamount to marriage, which triggers an automatic termination of alimony under the AJOD.

We begin with a review of the well-settled principles that guide our analysis. Alimony and child support "may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23. To make such a modification, a showing of "changed circumstances" is required. Lepis, supra, 83 N.J. at 146 (internal quotation marks and citations omitted); see also Weishaus v. Weishaus, 180 N.J. 131, 140-41 (2004). Temporary or anticipated circumstances do not warrant modification. Lepis, supra, 83 N.J. at 151. Rather, "[t]he party seeking modification has the burden of showing such 'changed circumstances' as would warrant relief from the support or maintenance provisions involved." Id. at 157 (citing Martindell v. Martindell, 21 N.J. 341, 353 (1956)). The main considerations are "the dependent spouse's needs, that spouse's ability to contribute to the fulfillment of those needs, and the supporting spouse's ability to maintain the dependent spouse at the former standard." Id. at 152. A prima facie showing of cohabitation constitutes sufficient changed circumstances to warrant discovery and a hearing under Lepis. Gayet v. Gayet, 92 N.J. 149, 154-55 (1983).

If a supporting spouse seeks to decrease an alimony obligation because of the dependent spouse's cohabitation, "the test for modification of alimony is whether the relationship has reduced the financial needs of the dependent former spouse." Id. at 150. Alimony may be modified "when (1) the [cohabiting] third party contributes to the dependent spouse's support, or (2) the [cohabiting] third party resides in the dependent spouse's home without contributing anything toward the household expenses." Id. at 153 (citing Garlinger v. Garlinger, 137 N.J. Super. 56, 64 (App. Div. 1975)). Rather than focus solely on the fact of cohabitation, a court must consider the "extent of actual economic dependency" as a result of the cohabitation. Id. at 154. This economic inquiry also includes non-financial contributions of the cohabitant that directly enhance the dependent spouse's standard of living. Reese v. Weis, 430 N.J. Super. 552, 557-58 (App. Div. 2013).

"'[A] showing of cohabitation creates a rebuttable presumption of changed circumstances, shifting the burden to the dependent spouse'" to rebut the presumption by showing "he or she remains dependent on the former spouse's support." Reese, supra, 430 N.J. Super. at 570-571 (quoting Ozolins v. Ozolins, 308 N.J. Super. 243, 248 (App. Div. 1998)). The court must focus on the cohabitants' economic relationship to discern "whether one . . . subsidizes the other." Id. at 571 (internal quotation marks and citation omitted). Modification or termination of alimony may be "warranted when either the cohabitant contributes to the dependent spouse's support or lives with the dependent spouse without contributing." Ibid. (citing Garlinger, supra, 137 N.J. Super. at 64).

Whether this economic benefit exists requires a fact-intensive inquiry by the trial judge. Id. at 576. First, a trial judge must examine the daily financial realities of the cohabiting household to determine whether there is a direct or indirect economic benefit to the dependent spouse or the co-habitator. Ibid. In addition, the trial judge will examine any economic benefit that inures from the comingling of the cohabitants' finances. Id. at 576-77.

Beyond these financial inquiries, the trial judge must inquire into the nature of the cohabiting relationship. Id. at 581-82. A trial judge may evaluate the duration and character of the cohabiting relationship "and assess its similarities to the fidelity associated with marriage when determining whether to modify or terminate alimony." Id. at 558.

Our scope of review of the trial court's decision is limited. "Whether an alimony obligation should be modified based upon a claim of changed circumstances rests within a Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006); see also Storey v. Storey, 373 N.J. Super. 464, 470 (App. Div. 2004). Each individual motion for modification is particularized to the facts of that case, and "'the appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters.'" Larbig, supra, 384 N.J. Super. at 21 (quoting Martindell, supra, 21 N.J. at 355). We will not disturb the trial court's decision on alimony unless we

conclude that the trial court clearly abused its discretion, failed to consider all of the controlling legal principles, or must otherwise be well satisfied that the findings were mistaken or that the determination could not reasonably have been reached on sufficient credible evidence present in the record after considering the proofs as a whole.
 
[Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996).]

Here, plaintiff's cohabitation was clearly a change in circumstances under Lepis. See Gayet, supra, 92 N.J. at 154-55. The record shows that plaintiff's cohabitation reduced her financial needs as the paramour contributed $500 per month to plaintiff's support. Thus, plaintiff had the burden to show that she was still dependent on defendant's support. See Reese, supra, 430 N.J. Super. at 570-71.

Judge Rivas, in analyzing all of the evidence, appropriately focused on an economic evaluation of the cohabitation, examined the financial arrangements of plaintiff and the paramour to determine if any direct or indirect benefits were being conferred, and examined the nature of plaintiff and the paramour's relationship to determine if their relationship was akin to marriage. See Reese, supra, 430 N.J. Super. at 558, 571, 581-82. The judge determined that the paramour was "saving a substantial amount of money by only having to pay $500 a month to the [p]laintiff." Indeed, the judge found that plaintiff was also "economically subsidizing" the paramour, and that plaintiff received benefits from the paramour that were less tangible.

After finding a material economic consequence stemming from the cohabitation, the judge focused on what reduction of defendant's support obligation was warranted. The judge found that plaintiff's earned income was the same as when the original alimony order issued, but that her income plus alimony payments exceeded her annual expenses. Next, Judge Rivas found that defendant's financial circumstances had not changed significantly from the time the original alimony obligation was set and that they had not deteriorated.

The judge concluded that cessation of defendant's alimony obligation was not warranted because plaintiff demonstrated an ongoing financial need. However, because defendant's alimony payments were being used in part to subsidize the paramour, Judge Rivas found that defendant's obligation should be reduced by the amount the paramour was paying plaintiff, or $500 per month.

We are satisfied that the trial judge's reasonable determination is amply supported by the record and followed the applicable legal principles. Defendant's computations of the paramour's non-monetary contributions are unsupported by the record, and his attempt to monetize these contributions is unconvincing. Contrary to defendant's argument, plaintiff's cohabitation was simply not the equivalent of a marriage and did not necessitate an automatic elimination of defendant's alimony. See Reese, supra, 430 N.J. Super. at 570-71 (finding that cohabitation is akin to marriage, but requiring an in depth analysis prior to modification of alimony). Consequently, Judge Rivas's proportionate reduction of defendant's obligation warrants our deference. See Heinl, supra, 287 N.J. Super. at 345; Larbig, supra, 384 N.J. Super. at 21.

1 In plaintiff's brief, she argues that she should not have to reimburse defendant for the fees associated with the IRS appeal. However, she did not file an appropriate cross-appeal, so we decline to address her contention. See Burbridge v. Paschal, 239 N.J. Super. 139, 151-52 (App. Div.), certif. denied, 122 N.J. 360 (1990).