PATRICK M. ROONEY v. DAWN GRECO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2328-07T12328-07T1

PATRICK M. ROONEY,

Plaintiff-Appellant,

v.

DAWN GRECO (ROONEY),

Defendant-Respondent.

___________________________________

 

Submitted October 16, 2008 - Decided

Before Judges Parrillo and Lihotz.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Ocean County,

Docket No. FM-15-843-05-S.

Woodland, McCoy & Shinn, attorneys for appellant

(Eric P. LeBoeuf, on the brief).

Respondent has not filed a brief.

PER CURIAM

Plaintiff Patrick Rooney appeals from the post-judgment order of the Family Part denying his motion for emancipation of the parties' eighteen-year old daughter, and reduction of his child and spousal support. We reverse and remand for further proceedings.

By way of background, plaintiff and defendant Dawn Greco were married on March 23, 1991, and had three children, twin sons born on October 24, 1991 and a daughter, born on August 23, 1989. Prior to their divorce on June 13, 2005, the parties agreed, by consent order of May 10, 2005, that defendant would be the primary residential custodian of the three children and both would share legal custody. A property settlement agreement (PSA) incorporated into the dual judgment of divorce provided that plaintiff would pay alimony to defendant for a five-year term at $200 per week, but was silent as to termination of the obligation due to cohabitation. The PSA also provided that the children shall be deemed "emancipated" upon the happening of several events, including:

Graduat[ion] from high school[. H]owever, in the event the child ceases to attend high school, upon the child's 18th birthday, or the completion of four (4) continuous academic years of college education, whichever last occurs.

Sometime after the divorce, the twin sons commenced residing with plaintiff. Consequently, on March 5, 2007, the parties executed a consent order agreeing to terminate plaintiff's child support obligation to defendant and to be financially responsible for the needs of the child/children in his or her own residential care. Several months later, in August, the daughter turned eighteen, and because she did not return to her senior year in high school in the Fall, plaintiff moved to declare her emancipated and fix defendant's child support obligation accordingly.

Plaintiff also moved to reduce alimony based on defendant's alleged "cohabitation" with her boyfriend, with whom defendant supposedly acknowledged being in a "committed and exclusive relationship." In support of this application, plaintiff certified that defendant's boyfriend receives mail at defendant's residence and that, according to a private investigator who surveilled the home over a three-month period (June 21, 2007 to September 21, 2007), the boyfriend's vehicle was parked in defendant's driveway at various times from as early as 4:52 a.m. to as late as midnight, nineteen of the twenty days the house was under watch. During this time, the boyfriend was also observed working on the yard.

In her responding certification, defendant admitted that her daughter quit high school because "the pressure . . . was too stressful . . ." and has neither pursued her GED nor gainful employment, apparently by choice. Defendant claimed, nevertheless, that their daughter "is totally dependent upon me for her support." Defendant also admitted that her boyfriend "visit[s] with me regularly, perhaps as much as several days a week . . ." and "spent as many as four or five overnights with me during a period of one week." Defendant denied, however, that he resides with her, receives mail regularly at her residence, or shares any expenses or bank accounts with her.

Based simply on the conflicting certifications, the judge issued a "tentative" or preliminary written decision, denying any relief to plaintiff, finding no proof of emancipation, and therefore no "changed circumstance" to modify the parties' March 2007 consent order eliminating any child support obligation to the other. The judge also found no evidence of cohabitation to warrant a reduction in plaintiff's spousal support obligation. Following oral argument on plaintiff's motion, the judge found no reason to change his tentative decision:

. . . The Court well understands the plaintiff's unhappiness with this Court's tentative decision because he loses on two vital issues. But the reason why he loses is based upon the Court's findings of fact and the application of law which the Court deemed sound when it wrote the tentative. Now the Court has listened very closely to Mr. McCoy's argument and it is articulately made. However, the response is equally articulate, and the Court finds that its initial findings are soundly based upon the evidence and the application of the law to those findings on the two vital issues of emancipation and cohabitation are appropriate under the circumstances.

We disagree. The court's decision is bereft of any factual findings resolving the conflicting proofs or any conclusions of law based thereon. We are satisfied that the evidence presents, at the very least, a prima facie case of emancipation and cohabitation sufficient to warrant a plenary hearing on both issues.

(A)

First, as to spousal support, courts have the continuing discretion to review and make decisions on alimony awards. Lepis v. Lepis, 83 N.J. 139, 146 (1980); Martindell v. Martindell, 21 N.J. 341, 357 (1956). Equally clear is that, even where the PSA is silent on the issue, "cohabitation [by a divorced spouse] shall constitute . . . changed circumstances." Gayet v. Gayet, 92 N.J. 149, 155 (1983); see also Ozolins v. Ozolins, 308 N.J. Super. 243, 247-48 ((App. Div. 1998); Boardman v. Boardman, 314 N.J. Super. 340, 347 (App. Div. 1998).

Our courts view cohabitation as "tantamount to a marriage," Konzelman v. Konzelman, 307 N.J. Super. 150, 161 (App. Div. 1998), aff'd, 158 N.J. 185 (1999), where the couple acts as a "family unit" and there is a relative permanency within the household. Gayet, supra, 92 N.J. at 155. On this score,

the term "cohabitation" implies more than merely a common residence or a sexual relationship. We believe the ordinary definition of "cohabitation," describing a relationship of living together "as man and wife," connotes mutual assumption of the duties and obligations associated with marriage.

[Konzelman, supra, 307 N.J. Super. at 157-58.]

To guide trial courts in applying this definition, we have formulated a list of factors to consider in determining whether a relationship constitutes cohabitation. We emphasize, however, that the list is non-exhaustive, and that no one factor serves as an absolute prerequisite for cohabitation. In interpreting "cohabitation," courts may consider indicia such as:

1. establishment of a common residence;

2. long-term intimate or romantic involvement;

3. shared assets or common bank accounts;

4. joint contribution to household expenses; and

5. recognition of the relationship by the community.

[Id. at 158 (citing Gordon v. Gordon, 342 Md. 294, 308-09 (Sup. Ct. 1996)).]

In the changed circumstance of cohabitation, modification is warranted when either the cohabitant contributes to the dependent spouse's support or lives with the dependent spouse without contributing. Garlinger v. Garlinger, 137 N.J. Super. 56, 64 (App. Div. 1975). In this regard, some courts have focused primarily on the economic relationship of the parties. The reduction in financial need is "the critical factor" in the analysis of alimony modification. Conlon v. Conlon, 335 N.J. Super. 638, 649-50 (Ch. Div. 2000). The test is whether one cohabitant "subsidizes" the other enough to warrant relief. Boardman, supra, 314 N.J. Super. at 347. This would result in some assemblage of a single economic unit. Pugh v. Pugh, 216 N.J. Super. 421, 424-26 (App. Div. 1987).

Of course, when alleging cohabitation, a party seeking modification of a support obligation must first establish a prima facie case before proceeding further to discovery and ultimately a plenary hearing. Lepis, supra, 83 N.J. at 157. "The burden of proof [then] shifts to the dependent spouse." Ozolins, supra, 308 N.J. Super. at 248. In other words, once a showing of changed circumstances is made, the economic issues should be addressed after the exchange of discovery and information. Conlon, supra, 335 N.J. Super. at 649-50. "Where the supporting spouse is successful in establishing cohabitation, a rebuttable presumption is created which requires the dependent spouse to address the economic consequence of the relationship in order for the court to make an appropriate assessment regarding a modification or termination of alimony." Id. at 650.

Gayet is illustrative of proof that satisfies the prima facie threshold. There, the dependent spouse admitted cohabitation four nights a week for a three-and-one-half month period. 92 N.J. at 150. This was deemed sufficient to order discovery and a plenary hearing. Ibid. By comparison here, plaintiff has offered competent proof of the alleged co-habitant's presence for nineteen of the twenty random days that defendant's home was monitored over a ninety-day period. Moreover, defendant's boyfriend has received mail at defendant's residence and was observed tending to the property. Indeed, defendant does not dispute an intimate relationship and overnight stays, as many as four in a one-week period. We are satisfied that plaintiff's proofs establish a prima facie case of cohabitation to allow for the exchange of financial information and a plenary hearing to determine whether the current living arrangement has reduced defendant's financial need from that established in the PSA. Id. at 157-58.

Here, in denying plaintiff the opportunity to test his proofs at a plenary hearing, the judge was evidently satisfied with defendant's blanket denial of a relationship that "ha[d] risen to the level of cohabitation." However, the lack of any findings of fact or conclusions of law does a disservice to our informed review of the matter, Curtis v. Finneran, 83 N.J. 563, 569-70 (1980), made even more difficult in the absence of any meaningful oral argument below, see Raspantini v. Arocho, 364 N.J. Super. 528, 531 (App. Div. 2003), and any opposition to this appeal. The court's decision also ignores well-settled law that when, as here, conflicting certifications are sufficiently in dispute, a plenary hearing is necessary to determine the facts. Conforti v. Guliadis, 128 N.J. 318, 328-29 (1992); Palmieri v. Palmieri, 388 N.J. Super. 562, 564 (App. Div. 2006); Shaw v. Shaw, 138 N.J. Super. 436, 400 (App. Div. 1976). Thus, in the absence of any resolution of this conflict, we are constrained to remand for further proceedings on this issue.

(B)

We share the same view on the other issue. Emancipation is the conclusion of the fundamental dependent relationship between parent and child. While it does not occur automatically, simply by reason of the dependent child reaching the age of majority, now eighteen, Newburgh v. Arrigo, 88 N.J. 529, 543 (1982), and in fact, "need not occur at any particular age . . ." ibid.; see also Limpert v. Limpert, 119 N.J. Super. 438, 440 (App. Div. 1972), reaching the age of majority does establish "prima facie, but not conclusive, proof of emancipation." Newburgh, supra, 88 N.J. at 543 (citing Alford v. Somerset County Welfare Bd., 158 N.J. Super. 302, 310 (App. Div. 1978); Limpert, supra, 119 N.J. Super. at 440)). See also N.J.S.A. 9:17B-3.

The issue of "[w]hether a child is emancipated at age eighteen, with the correlative termination of the right to parental support," is fact-sensitive. Newburgh, supra, 88 N.J. at 543. "[T]he essential inquiry is whether the child has moved 'beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own.'" Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)). This determination involves a critical evaluation of the prevailing circumstances including the child's need, interests, and independent resources, the family's reasonable expectations, and the parties' financial ability, among other things. Newburgh, supra, 88 N.J. at 545.

Here, the parties' reasonable expectation is embodied in their PSA, in which they agreed to emancipation upon the attainment of age eighteen coupled with non-enrollment in secondary school or college. To be sure, a parent cannot bargain away a child's right to support because the right to support belongs to the child, not the parent, Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993), and no agreement between the parents can deprive a court of its authority to require that adequate provision be made for dependent children. Furthermore, given the inherent equitable powers of the Family Part, support orders, including those setting emancipation events, "may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23; see also Lepis, supra, 83 N.J. at 146. Nevertheless, the parties' voluntary and knowing agreement to utilize in part the presumptive age of emancipation as the governing standard is an important consideration in the court's determination, as it is violative of no principle of public policy and clearly evidences their reasonable expectations.

Moreover, plaintiff has demonstrated more than attainment of the age of majority. His daughter voluntarily quit school, is not pursuing an equivalent education, and remains unemployed. Nothing in the record suggests these decisions are other than willful and her own voluntary choices. At the very least, these proofs, along with the presumption, establish a prima facie case of emancipation that may be rebutted at a plenary hearing. Yet the motion judge, as he did on the issue of cohabitation, simply accepted defendant's blanket claim of continued dependency and conclusively dismissed the need for further inquiry. And once again we are constrained, given the fact-sensitive nature of the determination, to remand for further proceedings on the issue of emancipation.

 
Reversed and remanded for further proceedings consistent with this opinion.

(continued)

(continued)

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A-2328-07T1

November 12, 2008