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Telephonically argued March 5, 2015 - Decided April 6, 2015

Before Judges Sabatino, Simonelli, and Leone.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-995-08.

Michael Confusione argued the cause for appellant (Hegge & Confusione, LLC, attorneys; Pamela Lynn Brause, Peter Ventrice and Mr. Confusione, on the briefs).

James P. Yudes argued the cause for respondent (James P. Yudes, P.C., attorneys; Kevin M. Mazza, on the brief).


After considering the parties' motion submissions and oral arguments of their counsel,1 the trial court terminated alimony in this case, based upon a finding of cohabitation. For the reasons that follow, we vacate the alimony termination order. We remand for a plenary hearing, which shall particularly focus upon the critical disputed factual issue of the frequency of the alleged cohabitation.

We derive the following background from the record. Plaintiff Diane Mary Wachtell (now known as Diane Mary Lee) ("the ex-wife") and defendant Theodore Wachtell, II ("the ex-husband") divorced in October 2009 after over twenty years of marriage. The parties have three children, two sons and a daughter. At the time of the divorce, the children primarily resided with their mother in the marital residence in Chatham. The older son, who was born in October 1990, had graduated from college by the time of the motion practice concerned in this appeal.

Both of the parties are wealthy individuals. Pursuant to the Property Settlement Agreement ("PSA"), which they negotiated with their respective counsel at the time of their divorce, the ex-wife received from the ex-husband property worth approximately $7-8 million, including the marital residence.

The PSA provided for the ex-wife to receive permanent alimony. The alimony is to be calculated pursuant to a formula in the PSA based on the ex-husband's annual income. The formula caps the alimony at $450,000 per year. In addition, the ex-husband agreed to bear a portion of the children's expenses.

Paragraph 22 of the PSA sets forth negotiated terms under which alimony may be terminated. The typewritten portion of paragraph 22 reads as follows

22. The alimony payable to the wife shall be payable until the following events

A. The death of the Husband;

B. The death of the Wife;

C. Cohabitation of the wife with a male that is unrelated to her by blood or marriage in a relationship that is tantamount to marriage;

D. The husband's retirement on or after age 65;

E. Remarriage of the Wife[.]

[(Emphasis added).]

The parties mutually altered the above typewritten cohabitation language in paragraph 22 by adding the clause "without the need to prove economic dependency" at the end of subparagraph (C). Both parties initialed that handwritten insert.

The cohabitation issues before us arise out of the ex-wife's romantic relationship with another man. Their relationship became exclusive at some point after the divorce. After selling the marital residence, the ex-wife purchased a home in Little Silver in August 2013, moving there with the children. Her new home was located a short distance from the townhouse owned and occupied by the ex-wife's paramour.

Although the ex-husband had been almost consistently current on his alimony obligation, he began withholding his monthly payments to the ex-wife upon learning that her relationship with her paramour had intensified. He started paying the alimony instead into his attorney's escrow account, and filed a motion in January 2014 to terminate alimony based upon cohabitation.

The ex-husband provided a certification making numerous allegations about the close nature of the ex-wife's relationship with her paramour. Among other things, the ex-husband contended that the ex-wife was spending nearly every Thursday through Sunday at her paramour's townhouse; that they had gone on several vacations together abroad and in this country; that they had accompanied the parties' daughter to a national horse championship; that they had attended major family functions together, including graduations; and that they regularly celebrated holidays together.

The ex-husband also submitted a supporting certification from the parties' older son. The paramour had helped the son, a college graduate, get a job working for him at his investment firm. The paramour also had asked the son to feed his dogs at his townhouse when he was out of town. The son took advantage of his access to the paramour's residence by bringing his father with him inside the premises, where the ex-husband took photographs and attempted to gather other evidence of the paramour's relationship with the ex-wife. Based upon his knowledge of his mother's activities with her paramour, the son stated in his initial certification that the two of them had dinner together "virtually every night" and that they referred to themselves as "soulmates."

The ex-wife and her paramour filed opposing certifications, denying that their relationship rose to the level of cohabitation. The ex-wife admitted that she and her paramour spent "two to three overnights on average per week together," and that they had gone together on a "number of trips." However, she attested that the couple shared no expenses, that they maintained separate assets, and that on vacations and trips they each paid their own way. She further noted that the couple had not taken on "any duties or privileges that are commonly associated with marriage." She also acknowledged that she and her paramour each spent time at one another's residences, but noted that she did not receive much mail at his house.

The paramour's certification similarly maintained that, although the couple did spend "two to three overnights together per week on average," the couple had maintained separate finances and otherwise had "not taken on any duties or privileges that are commonly associated with marriage."

Additionally, the ex-wife objected to the ex-husband's enlistment of their older son to function, as she characterized it, as a "spy" on her and her paramour. She argued in this regard that the ex-husband's stealth entry into the paramour's home with his son was a form of trespassing. She alleged that the procured involvement of the son in the parties' motion practice over cohabitation violated paragraph 6 of the PSA, which dictates that "both parties are restrained from involving the children in marital disputes." Consequently, she urged that the ex-husband's motion be denied based upon equitable principles of unclean hands.

In addition, the ex-wife cross-moved to have her former spouse declared in violation of litigant's rights, primarily based upon his unilateral cessation of alimony payments. She also sought enforcement of the ex-husband's obligation under the PSA to provide her with the financial documents needed to calculate alimony each year.

Responding to the ex-wife's opposition, the ex-husband submitted a second set of certifications. These included supplemental certifications from himself and the older son. By this point, the son had been fired by the paramour's investment firm, allegedly at the paramour's direction. The ex-husband also tendered a certification from a private detective who had conducted surveillance of the ex-wife over a four-day period in January 2014.

The detective stated that he had observed the ex-wife and her paramour stay overnight with one another three consecutive nights. The son asserted in his second certification that he had signed his first certification "willingly and voluntarily," noting that he was a twenty-three-year-old adult. The son reiterated that his earlier observations of the close relationship between his mother and her paramour had been truthful.

The ex-husband's second certification amplified his allegations of cohabitation. The ex-husband attached copies of photographs of the ex-wife with the paramour that had been on display inside the paramour's townhouse. The ex-husband further asserted that his withholding of alimony and the financial records normally used to calibrate the annual alimony figure was justified, given the ex-wife's apparent cohabitation.

Sifting through these competing written submissions, the motion judge concluded that the ex-husband had demonstrated cohabitation by the ex-wife within the meaning of New Jersey case law, including Konzelman v. Konzelman, 158 N.J. 185 (1999), and its progeny. The judge determined in his oral opinion that the ex-wife was clearly "in a serious committed relationship tantamount to marriage." The judge found it particularly significant that the ex-wife acknowledged staying overnight with the paramour, on average, two or three nights weekly. The judge also was unswayed by the fact that the ex-wife and the paramour kept separate finances, in light of the handwritten amendment to PSA paragraph 22 eliminating the ex-husband's burden to prove economic dependency. Accordingly, the judge granted the ex-husband's motion to terminate alimony and denied the ex-wife's cross-motions.

On appeal, the ex-wife argues that the motion judge erred in finding that she and her paramour had been in a relationship tantamount to marriage. She emphasizes that no published case in New Jersey has yet to find or to affirm a finding of cohabitation where the former spouse and paramour were spending three days or less per week overnight. The ex-wife further contends that, at a minimum, the trial court should have conducted an evidentiary hearing to assess the credibility of the ex-husband's claims that the couple was spending four or more nights each week together. She renews her contention that the ex-husband engaged in improper behavior by entangling their older son in their post-divorce alimony dispute and in using the son to surreptitiously gain access to the paramour's townhouse.

The ex-wife also requests that we direct the trial court to grant her cross-motion for document production and other relief in aid of litigant's rights. Lastly, the ex-wife avers that her relationship with the paramour has ceased, and that, at a minimum, her right to alimony should now be revived.

The legal criteria for cohabitation have been long established by case law in this State.2 As the Supreme Court noted in Konzelman, supra, cohabitation is typified by the existence of a relationship "shown to have stability, permanency, and mutual interdependence." 158 N.J. at 202; see also Reese v. Weis, 430 N.J. Super. 552, 570 (App. Div. 2013) (similarly noting that "[c]ohabitation involves 'an intimate[,]' 'close and enduring' relationship, requiring 'more than a common residence' or mere sexual liaison") (citation omitted). Although "living together, intertwined finances such as joint bank accounts, shared living expenses and household chores" may support a finding of cohabitation, such illustrative examples must not be considered in a vacuum. Konzelman, supra, 158 N.J. at 202. Moreover, as the motion judge correctly recognized, the parties are free to agree, as they did here in the handwritten amendment to paragraph 22 of the PSA, that proof of economic dependency as a predicate to a finding of cohabitation may be waived. Id. at 197.

Procedurally, an alimony payor who alleges cohabitation must first present a prima facie case that his or her former spouse is in such a relationship tantamount to marriage. See Gayet v. Gayet, 92 N.J. 149, 154-55 (1983). If such a prima facie showing is made, the disputing ex-spouses may engage in mutual discovery. See ibid.

It is customary for the factual disputes relating to the alleged cohabitation to be resolved at a plenary hearing, at which the trial judge can evaluate the credibility of the competing witnesses. See, e.g., Winegarden v. Winegarden, 316 N.J. Super. 52, 56 n.1 (App. Div. 1998). Conducting such a plenary hearing in cohabitation disputes is consistent with the general principle in post-judgment matrimonial cases that "[d]isputes of material fact should not be resolved on the basis of [written] certifications." Palmieri v. Palmieri, 388 N.J. Super. 562, 564 (App. Div. 2006); see also Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976). The need for a plenary hearing is not inexorable, however, and a hearing may be dispensed with if there are no disputed issues of material fact and the matter is otherwise suited for disposition on the papers. See, e.g., Segal v. Lynch, 417 N.J. Super. 627, 642-43 (App. Div. 2011), aff'd in part and rev'd in part, 211 N.J. 230, 266 (2012) (analogously upholding the denial of an evidentiary hearing on child custody issues where no genuine material issues existed); see also Barblock v. Barblock, 383 N.J. Super. 114, 127 (App. Div.) (similarly dispensing with the need for an evidentiary hearing in an interstate child relocation context where no material factual issues needed to be resolved), certif. denied, 187 N.J. 81 (2006).

We agree with the ex-husband that his motion submissions in this case set forth a prima facie showing of cohabitation. We part company with the trial court, however, insofar as it found a plenary hearing unnecessary. In particular, we are satisfied that such a plenary hearing is required to resolve the key factual dispute over whether, as the ex-wife contended, she and her paramour generally stayed overnight together only two or three nights per week, as opposed to the ex-husband's claims that the average number of overnights was four or more.

The frequency of overnight stays, while not completely dispositive, is an important core factor in any cohabitation analysis. Simply stated, people must cohabit to a substantial degree in order for there to be cohabitation.

Accepting, for the sake of discussion, the ex-wife's contention that she stayed with her paramour, on average, two or three overnights per week, that means that she and her paramour were staying the majority of evenings at their respective separate residences. Two or three overnights each week is arguably more consistent with a romantic dating relationship than a relationship tantamount to marriage.

Although we surely recognize that some married couples will spend a majority of their nights apart due to employment, business travel, education and training programs, caring for a sick relative, and so on, the actual frequency of overnight stays between two unmarried persons is nonetheless an important indicia of the nature and intensity of the relationship. The motion judge should not have presumed without an evidentiary hearing that two or three weekly overnights would suffice in this case to equate to cohabitation, especially since no published opinion in New Jersey has found cohabitation in fact patterns with such infrequent stays.

Moreover, there are other material factual allegations in the certifications that do not appear to have been conceded by the opposing party, such as the frequency of the couple's dinners together, and whether they paid their own way, which could be relevant even though economic dependence is not required. We also need not decide here whether two or three average weekly overnights could be legally sufficient if significant other indicia favored cohabitation. We simply rule only that the specific admissions by the ex-wife and the paramour here, including two or three weekly overnights, are insufficient to establish cohabitation on the present record as a matter of law.

We decline the ex-wife's request that the ex-husband's motion to terminate alimony be denied on equitable grounds because of his recruitment of the older son as a fact witness. Although we sternly disapprove of the son's foolish decision to allow his divorced father into the home of his divorced mother's boyfriend without the latter's consent, the record does not reflect that any significant additional supporting facts were gleaned from that improvident entry. Indeed, the ex-wife's attorney acknowledged during oral argument before us that the evidence obtained from the ex-husband's entry into the paramour's townhouse was not considerable.

There is little doubt that the paramour would not have wanted or expected the son to bring his father into the townhouse while the paramour was away. The scope of the permission the paramour gave to the son to enter his house to feed his dogs surely did not extend to his girlfriend's former husband. Even so, although the paramour could have pursued civil or criminal redress for trespass, he apparently chose not to do so. The ex-wife would not have standing herself to complain about a trespass of a third-party's premises. Moreover, it is not clear that the parties intended in paragraph 6 of the PSA to regulate their children's activities and alliances with their respective parents after they attained the age of majority.

If the ex-husband again offers his own observations, photographs, or any other evidence which he uncovered in his entry into the paramour's house, the trial court shall consider whether the PSA was intended to limit the parents' relationships with the children into their adulthood, whether it is appropriate to create a suppression remedy, and whether any other sanctions should be imposed against the ex-husband.

For these reasons, we vacate the trial court's order terminating alimony and remand the disputed cohabitation issue for a plenary hearing. The court shall only consider testimony and other proofs allowable under the Rules of Evidence at the hearing, and shall not consider inadmissible hearsay, including the previously-filed certifications. Pending the outcome of that hearing, the monthly alimony shall continue to be paid into and held in escrow.

Depending upon the outcome of the remand hearing, the trial court shall also address the ex-wife's cross-motion. The trial court shall also consider her recently-asserted claim that her relationship with the paramour is now over and that her right to alimony, at the very least, should be reinstated. See, e.g., Garlinger v. Garlinger, 137 N.J. Super. 56, 65 (App. Div. 1975) (approving the suspension, rather than the termination, of alimony where the period of the alimony recipient's cohabitation only lasted a two-month period). We express no advisory opinion as to whether, as a matter of law, under these circumstances predating the new alimony statute, the ex-wife would have a legal or factual basis to reinstate her alimony claim if her prior cohabitation is conclusively proven at an evidentiary hearing on remand.3

Vacated and remanded for a plenary hearing. We do not retain jurisdiction. If either party seeks review of the decision on remand, he or she must file a new notice of appeal.

1 We note that plaintiff had different counsel representing her in the trial court.

2 As the parties acknowledge, the recent amendment to the alimony statute, N.J.S.A. 2A:34-23 (eff. Sept. 10, 2014), including its cohabitation provisions, is not to be construed to modify "specifically bargained for contractual provisions" in a final judgment of divorce, see L. 2014, c. 42, 2, and thus does not retroactively apply to the issues presently on appeal.

3 We note in passing that the new amended statute does provide for the "suspension" and revival of alimony in certain temporary cohabitation scenarios. See N.J.S.A. 2A:34-23(n) (noting that "[a]limony may be suspended or terminated if the payee cohabits with another person").

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