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DOCKET NO. A-1120-08T21120-08T2










Submitted June 16, 2010 - Decided

Before Judges Chambers and Kestin.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-558-03.

Perrucci Law Offices, attorneys for appellant/cross-respondent (Allison Turley Madden, on the brief).

Heer & Lyons, attorneys for respondent/cross-appellant (Theresa A. Lyons, on the brief).


In this post-divorce-judgment matter, plaintiff, Robert W. Croucher, appeals from the trial court's denial of his motion to terminate alimony payments. Defendant, Danielle Mastroeni, cross-appeals from the trial court's denial of her application for attorney's fees. As to the appeal, we affirm; as to the cross-appeal, we remand for further consideration.

The parties were divorced in 2005. Among the support terms of the amended judgment was a provision that plaintiff pay defendant alimony of $350 per week for seven years. The stated grounds for terminating alimony included defendant's cohabitation with a male who was not a family member.

In late 2007, the parties filed cross-motions for various relief. In an order entered on December 21, 2007, the trial court, among other items, provided for a plenary hearing, preceded by discovery, on the question of alimony termination due to cohabitation. A three-day plenary hearing on that issue occurred in mid-2008: on June 30, August 12, and September 29.

The judge rendered an oral decision at the conclusion of the plenary hearing. Referring to the testimony of the proffered witnesses, the judge found that plaintiff had not sustained his burden of proving cohabitation; and the motion for termination of alimony was denied. Defendant then made an oral application for leave to file a certification of services regarding counsel fees, which the judge denied.

In his appeal, plaintiff argues that the trial court erred in denying the application to terminate alimony in that the court "ignored [a.] overwhelming evidence of cohabitation between the defendant and the defendant's paramour[; and b.] . . . evidence that the relationship between the defendant and her paramour reduced the financial needs of defendant justifying modification and termination."

Our study of the record reveals considerable evidence on both sides of the cohabitation question. The judge evaluated all the evidence and reached the conclusion that plaintiff had not sustained his burden of proving the proposition he advanced. Given the existence of substantial evidence to support the findings and conclusion, we are obliged to affirm. The Supreme Court has reconfirmed the standard of review:

The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Deference is especially appropriate "when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Because a trial court "'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988) . . . . Therefore, an appellate court should not disturb the "factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms, supra, 65 N.J. at 484. The appellate court should "exercise its original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter." Ibid.

Furthermore, matrimonial courts possess special expertise in the field of domestic relations . . . . includ[ing] alimony or child support actions [and] divorce or nullity actions . . . .

Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.

[Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).]

See also Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996).

The whole of the trial court's disposition of defendant's counsel fee application was:

. . . I'm denying that application . . . . I believe that . . . although [plaintiff] hasn't proved the case, he did have a video that showed that there was some activity at [defendant's] house, and although there's substantial gaps and he hasn't proved the case, I think there is at least -- was -- a valid reason to bring the action, and I'm not awarding attorney's fees.

In deciding the application on this basis, the judge applied only one of the factors enumerated for consideration in Rule 5:3-5(c). Defendant was entitled to fuller evaluation, following the submission of certifications reflecting the standards of that Rule and the requirements of Rule 4:42-9(b) and (c), as well as consideration of such response thereto as plaintiff might choose to provide. See Clarke v. Clarke, 359 N.J. Super. 562, 572 (App. Div. 2003); see also Pressler, Current N.J. Court Rules, comments 4.6 and 4.7 on R. 5:3-5 (2010). In remanding on this basis, we express no view regarding the ultimate outcome on the counsel fee application, emphasizing, only, the need for an articulated application of Rule standards.

We affirm the denial of plaintiff's motion for termination of alimony. We remand for further consideration on defendant's application for attorney's fees. To the extent attorney's fees are sought for services provided in this appeal, the trial court shall pass upon any such application as well. See R. 2:11-4 (last sentence).





July 19, 2010