ALLISON SCHLUMPF v. RICHARD SCHLUMPF

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ALLISON SCHLUMPF,

Plaintiff-Respondent,

v.

RICHARD SCHLUMPF,

Defendant-Appellant.

______________________________________________________________

February 19, 2015

Submitted September 15, 2014 Decided

Before Judges Lihotz and Rothstadt.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-272-05.

Cores & Nachlinger, LLC, attorneys for appellant (Amy Sara Cores, on the brief).

Lynn E. Staufenberg, attorney for respondent.

PER CURIAM

Defendant appeals from two Family Part post-judgment orders filed on July 9, 2013. The orders terminated alimony on a specific date, based on plaintiff's admitted cohabitation with her significant other. Defendant argues the date should have been four months earlier, when plaintiff admitted she commenced cohabitating.1 He also appeals from the court's denial of his application for counsel fees.2 Plaintiff responds by arguing while she began her cohabitation earlier, she did not initially receive an economic benefit from the cohabitation arrangement, and, therefore, the Family Part's termination date should not be disturbed. She also argues the court properly denied defendant's request for counsel fees.

We have considered these arguments and the record of the motion. We reverse and remand the matter to the Family Part for entry of an order terminating alimony as of December 1, 2012, and for reconsideration of its denial of counsel fees.

The parties were married on September 22, 1991, and divorced pursuant to a Judgment of Divorce (JOD) filed on June 27, 2005. The JOD incorporated a Matrimonial Settlement Agreement (MSA), which required defendant to pay plaintiff limited term alimony for eight years through August 2013. However, the MSA also stated the alimony could "be modified or terminated upon the cohabitation of [w]ife pursuant to the dictates of Gayet v. Gayet, 92 N.J. 149 (1983) and Garlinger v. Garlinger, 137 N.J. Super. 56 (App. Div. 1975)."

In the summer of 2012, defendant learned plaintiff's boyfriend moved into plaintiff's townhouse. Defendant filed a motion to terminate alimony. The Family Part denied the motion without prejudice because defendant established cohabitation alone, without evidence of an economic benefit to plaintiff. The judge concluded defendant did not carry his burden to justify the termination of alimony.

In November 2012, plaintiff notified defendant she would be moving to a new home and provided her new address. Defendant conducted a title search and determined the new home was owned by plaintiff's boyfriend. He also confirmed with his children they were now residing with their mother full time at that house. As a result, defendant filed a second motion requesting his alimony be terminated, effective December 1, 2012, the date of cohabitation, or alternatively, the filing date of his motion, which was April 3, 2013.

Plaintiff filed a cross motion and certification requesting the court deny defendant's motion. Plaintiff certified she and her children moved into her boyfriend's home on or about December 1, 2012, and stated her financial needs have decreased by her prior $2010 rental expense. Plaintiff also certified she did not have a joint bank account with her boyfriend and she pays for unspecified expenses at her boyfriend's home. She agreed, however, to terminate alimony as of April 1, 2013.

A different Family Part judge reviewed the motion papers and she ordered alimony terminated as of April 1, 2013, because plaintiff consented to that date and defendant suggested April 3 as an alternate date to order termination. The court denied each party's request for counsel fees.

The judge provided limited justification for her decision. In an oral opinion, the judge reasoned selecting the date agreed to by plaintiff and suggested by defendant as an alternate date avoided both parties from needlessly incurring additional counsel fees. The court denied the request for counsel fees advanced by each party, stating she found defendant was unreasonable for refusing to withdraw his motion in light of plaintiff's acknowledgement to end her support on April 1.

Defendant filed a timely notice of appeal.

Our review of the termination of alimony is "limited to whether the court made findings inconsistent with the evidence or unsupported by the record, or erred as a matter of law." Reese v. Weis, 430 N.J. Super. 552, 572 (App. Div. 2013). A motion to modify an "alimony obligation 'rests upon its own particular footing 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.'" Id.at 571-72 (quoting Donnelly v. Donnelly, 405 N.J. Super.117, 127 (App. Div. 2009)).

"[A]limony is awarded because of an 'actual economic dependency' and not because of one's status as a spouse." Id.at 569 (quoting Lepis v. Lepis, 83 N.J.139, 155 (1980)). A court is required to "consider, among other things, the actual need of the party to whom the [alimony] award is to be made." Garlinger, supra, 137 N.J. Super. at 63 (citing N.J.S.A. 2A:34-23).

Alimony awards are not set in stone and can be modified if a party demonstrates a significant financial change since the alimony was first awarded. Reese, supra, 430 N.J. Super. at 569. Specifically, an alimony obligation can be modified based upon a changed circumstance which rests with the discretion of the judge. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006).

One type of changed circumstance is cohabitation by a spouse, Gayet, supra, 92 N.J. at 155, which the parties expressly recognized in their MSA.3 A former spouse's residing with a significant other by itself is not enough to terminate alimony. In addition to cohabitation there must be proof a cohabitating spouse is receiving some form of economic benefit from the cohabitation. Reese, supra, 430 N.J. Super. at 557-58, 576. "[T]he test for modification of alimony is whether the relationship has reduced the financial needs of the dependent former spouse." Gayet, supra, 92 N.J. at 150. Alimony should be modified "for changed circumstances resulting from cohabitation only if one cohabitant supports or subsidizes the other under circumstances sufficient to entitle the supporting spouse to relief." Id. at 153-54.

A supporting spouse's proof of cohabitation creates a rebuttable presumption of changed circumstances. Ozolins v. Ozolins, 308 N.J. Super. 243, 248 (App. Div. 1998). Once established, "the burden of proof, which is ordinarily on the party seeking modification, shifts to the dependent spouse." Id. at 249. This includes the lack of economic benefit and continued need for support. Ibid.

Family Part judges must make "findings regarding whether [and when] the aid provided by a cohabitant has altered or obviated the need for support, and exercise reasonable discretion to reset or eliminate alimony." Reese, supra, 430 N.J. Super. at 576. A judge is given discretion to set the date upon which alimony terminates including terminating alimony retroactively. Id. at 584. Typically, a dispute about whether a spouse's cohabitation is a changed circumstance "justif[ies] discovery and a hearing for modification of alimony." Boardman v. Boardman, 314 N.J. Super. 340, 347 (App. Div. 1998) (citing Gayet, supra, 92 N.J. at 154-55); see also Reese, supra, 430 N.J. Super. at 570.

Applying these standards, we conclude the there was no evidence to support the Family Part judge's selection of the date for alimony termination based solely on plaintiff's suggested resolution of April 1. Our review of the record satisfies us plaintiff failed to rebut the presumption she began to derive an economic benefit from cohabitating when she moved into her boyfriend's house. The only financial information she supplied to the court was she derived a benefit from her cohabitation, which relieved her of a $2010 monthly rent expense. She provided no information demonstrating her inability to be self-sufficient without continued economic support from defendant. By withholding this financial information from the court, she failed to meet her burden of proof.

Under these circumstances, we conclude it was an abuse of the court's discretion to fix the termination date at the date agreed to by plaintiff rather than terminating alimony when plaintiff and her children relocated their residence.

We reach a similar conclusion regarding the court's denial of defendant's request for counsel fees. "We will disturb a trial court's determination on counsel fees only on the 'rarest occasion,' and then only because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).

Rule 5:3-5(c) permits the court to grant counsel fees to "any party successful in the action, on any claim for . . . alimony . . . . " Whenever an application is made in the Family Part for counsel fees, "the court shall determine the appropriate award . . . if any, . . . [after] consider[ing] the factors set forth in [Rule5:3-5], the financial circumstances of the parties, and the good or bad faith of either party." N.J.S.A.2A:34-23. Accordingly, the court must consider

(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.

[R.5:3-5(c).]

Even if every factor is not analyzed, as long as the judge provides support for the court's determination, these factual findings will not be disturbed. Reese, supra, 430 N.J. Super. at 586.

The only finding made by the judge was there was "a little bit of unreasonableness on the part of the defendant here not to terminate alimony as of when the plaintiff agreed, which was April 1st 2013." We cannot agree consideration of defendant's refusal to abide plaintiff's suggested date evinced his bad faith or otherwise justified denial of his counsel fee request. Accordingly, we find the order was unsupported, and therefore, reflects an abuse of the court's discretion. We therefore vacate that portion of the court's orders as well and remand for reconsideration of the court's denial of defendant's request for counsel fees, including the consideration of the applicable factors noted above.

Reversed and remanded. We do not retain jurisdiction.

1 The amount of money in dispute is approximately $5400 for eighteen weeks of alimony from December 1, 2012, the date of cohabitation, through April 1, 2013, the date the court terminated alimony.

2 Although defendant's notice of appeal limited his appeal to the first paragraph of the two orders regarding the date for termination of alimony, both parties have briefed the issue of counsel fees.

3 Recognition of cohabitation as a basis to change an alimony award is now found in the September 10, 2014 amendments to the alimony statute. See N.J.S.A. 2A:34-23(n) (providing discretion to terminate or suspend alimony if the payee cohabits with another). As this matter arose prior to the statute's adoption, our review is guided by prior cohabitation jurisprudence, which provided cohabitation alone was insufficient to terminate alimony; cohabitation must be accompanied by a substantial economic benefit resulting from the relationship. Reese, supra 430 N.J. Super. at 557-58.