LORRAINE A. ROBITZSKI v. STEVEN J. ROBITZSKI

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LORRAINE A. ROBITZSKI,

Plaintiff-Respondent,

v.

STEVEN J. ROBITZSKI,

Defendant-Appellant.

____________________________________

Argued April 6, 2016 Decided May 5, 2016

Before Judges Sabatino, Accurso and Suter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-403-04.

Amy C. Goldstein argued the cause for appellant (Capehart & Scatchard, P.A., attorneys; Ms. Goldstein and Matthew R. Litt, on the briefs).

Joseph Patrick McShane, III, argued the cause for respondent (Forkin, McShane, Manos & Rotz, attorneys; Mr. McShane, on the brief).

PER CURIAM

In this post-judgment matrimonial matter, defendant Steven J. Robitzski ("the ex-husband") appeals from the Family Part's January 9, 2015 order denying his request to compel additional discovery from plaintiff Lorraine Robitzski ("the ex-wife") relating to cohabitation issues that could affect the ex-husband's ongoing obligation to pay alimony. The motion judge denied the ex-husband's request because he had not made a prima facie showing of cohabitation that would justify such full discovery and the attendant intrusion upon the ex-wife's privacy. As part of his legal argument, the ex-husband also challenges the motion judge's rulings concerning hearsay and statutory retroactivity issues.

For the reasons that follow, we affirm the motion judge's determination that the ex-husband did not present sufficient evidence of a prima facie claim of cohabitation. We do so without foreclosing the ex-husband from renewing his motion if he is able to marshal more substantial evidence to support his claim.

I.

The parties were divorced in 2004. As part of their associated property settlement agreement ("PSA"), the ex-husband agreed to pay the ex-wife $2,500 monthly in permanent alimony, amounting to $30,000 per year.

The parties agreed in the PSA that alimony would be terminated upon the happening of various specified events. In particular, paragraph 4 of the PSA states that the ex-husband's obligation for alimony "shall be modified or terminated pursuant to New Jersey statutes and case law" in the event it is proven that the ex-wife cohabits with another person.

The PSA does not define cohabitation. It also does not specify whether the applicable "New Jersey statutes and case law" for evaluating a cohabitation claim would be those standards that existed at the time of the divorce in 2004 or those prevailing at a later time when and if the ex-husband filed a motion for termination or modification.

Since the time of the divorce through the motion practice that is the subject of this appeal, the ex-wife has admittedly maintained a longstanding relationship with her significant other. According to the ex-husband, the ex-wife and her significant other have a very interdependent relationship, in which the two of them allegedly interact and hold themselves out as the equivalent of spouses. As part of the support for his contentions, the ex-husband provided in his motion papers to the trial court copies of various items posted publicly on Facebook by the significant other. The postings contain photographs and commentary showing various family and social activities that the significant other has engaged in with the ex-wife and her children, who call him "Pap Thom."

The ex-wife denies that she has a cohabitation arrangement with her significant other. She certified that he only spends approximately 100 nights out of the year overnight with her, and that they maintain separate finances and assets. As proof of the latter, the ex-wife supplied to the ex-husband copies of her bank statements and bills for all of 2013 and most of 2014. These financial documents reflect that the ex-wife paid for her bills from her bank account balances, and that there were no deposits from any unaccounted for sources.

After the Legislature in 2014 revised the alimony statute, N.J.S.A. 2A:34-23, the ex-husband moved in November 2014 to terminate his alimony obligation, claiming that the ex-wife's relationship with her significant other amounted to cohabitation under the new statute. The ex-wife opposed the motion. She also cross-moved for a declaration that the 2014 statutory amendments do not apply to the alimony obligation that the parties mutually established in their 2003 PSA.

Following oral argument, the Family Part judge denied the ex-husband's motion to terminate alimony, without prejudice, in an order dated January 9, 2015. The judge concluded that the ex-husband had failed to meet his burden to show a prima facie case of cohabitation, including any proof of financial interdependency, to justify a change in his alimony obligation. The judge declined to consider the Facebook postings, finding them to be inadmissible hearsay and substantially unauthenticated. The judge also rejected the ex-husband's contention that subsection (n) of the revised alimony statute, N.J.S.A. 2A:34-23(n), applies to this case, instead granting the ex-wife's cross-motion declaring that provision inapplicable.

The judge did grant the ex-husband a degree of limited discovery in the January 9, 2015 order. Specifically, in paragraph 4 she ordered the significant other1 to "provide a certification addressing his independent living arrangements, including the length of his lease or whether he owns the home, whether [he and the ex-wife] are co-owners or co-tenants and whether he lives alone and how he pays for his current living arrangements." In addition, in paragraph 5, the judge ordered the ex-wife to provide "an accounting of [her] household expenses, including how those expenses were paid for [in] the year 2012." The court ordered this discovery be supplied to defendant's counsel within 30 days of the order. The ex-wife has not cross-appealed these discovery provisions and her significant other has not sought to intervene in this appeal. We do not and need not know what, if any, additional discovery the ex-wife has provided in compliance with these orders. Nor do we know if the significant other, given his status as a non-party to this case, produced the certification ordered by the court.

On appeal, the ex-husband argues that the trial court erred in several aspects of its rulings. As a remedy, he urges that the matter be remanded to the Family Part, with instructions that the ex-wife be directed to provide full discovery that could bear upon his cohabitation claim. The ex-husband further seeks this court to declare that subsection (n) of the revised statute is applicable to his efforts to terminate alimony. In addition, the ex-husband seeks reversal of the motion judge's hearsay ruling, contending that the ex-wife's certification filed in opposition to his motion renders the significant other's Facebook postings her "adoptive admissions" under N.J.R.E. 803(b)(2).

II.

As we have noted, the parties dispute what is the operative law that governs the cohabitation issues here. Prior to the Legislature's adoption of the 2014 amendments, the legal criteria for cohabitation were not specified by statute but instead embodied in case law. See, e.g., Konzelman v. Konzelman, 158 N.J. 185, 195-203 (1999).

As the Supreme Court explained in Konzelman, cohabitation is typified by the existence of a marriage-like relationship "shown to have stability, permanency, and mutual interdependence." Id. 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"). 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. "A mere romantic, casual or social relationship is not sufficient," nor is simply sharing "a common residence, although that is an important factor." Ibid.

Procedurally, an alimony payor who alleges cohabitation must first present a prima facie case that his or her former spouse is in such a cohabiting 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 then engage in mutual discovery. See ibid. The payor's prima facie showing of cohabitation creates a rebuttable presumption of changed circumstances, which the dependent ex-spouse may then attempt to rebut "with proof that the need for [spousal] support remains the same." Ozolins v. Ozolins, 308 N.J. Super. 243, 248-49 (App. Div. 1998); see also Reese, supra, 430 N.J. Super. at 570-71 (reaffirming this court's holding in Ozolins).

In 2014 the Legislature addressed these and other related concepts in subsection (n) of N.J.S.A. 2A:34-23. That provision sets forth the following considerations that bear upon cohabitation issues

n. Alimony may be suspended or terminated if the payee cohabits with another person. Cohabitation involves a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household.

When assessing whether cohabitation is occurring, the court shall consider the following

(1) Intertwined finances such as joint bank accounts and other joint holdings or liabilities;

(2) Sharing or joint responsibilities for living expenses;

(3) Recognition of the relationship in the couple's social and family circle;

(4) Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship;

(5) Sharing household chores;

(6) Whether the recipient of alimony has received an enforceable promise of support from another person within the meaning of subsection h. of [N.J.S.A.] 25:1-5; and

(7) All other relevant evidence.

In evaluating whether cohabitation is occurring and whether alimony should be suspended or terminated, the court shall also consider the length of the relationship. A court may not find an absence of cohabitation solely on grounds that the couple does not live together on a full-time basis.

[(Emphasis added).]

The ex-husband maintains that these criteria expressed in new subsection (n) are less burdensome for an obligor to prove cohabitation than had existed before under case law, including Konzelman and its progeny. Among other things, he stresses that the statute instructs that a finding of cohabitation is not precluded "solely because the couple does not live together on a full-time basis." Ibid. The ex-wife contends, on the other hand, that the newly-codified criteria do not reduce the payor's evidential burden and, although expressed somewhat differently, they capture the essence of what had been the appropriate considerations under prior case law.

Moreover, the ex-wife asserts that even if subsection (n) is viewed to lessen a payor's burden in proving cohabitation, the trial court correctly found that the provision does not apply to the negotiated terms of the parties' PSA, which they entered into in 2003, over a decade before the alimony statute was revised in 2014. She emphasizes that the ex-husband's alimony obligation was specifically bargained for in the PSA, and thereafter made effective through a judicial order, and thus beyond the new statute's retroactive reach.

The retroactivity question is guided by the following separate provision adopted by the Legislature delineating the effective date of the 2014 statute. The provision declares the new law non-retroactive with respect to certain prior alimony agreements and judicial orders

This act shall take effect immediately and shall not be construed either to modify the duration of alimony ordered or agreed upon or other specifically bargained for contractual provisions that have been incorporated into

a. a final judgment of divorce or dissolution;

b. a final order that has concluded post-judgment litigation; or

c. any enforceable written agreement between the parties.

[L. 2014, c. 42, 2.]

In two recent published cases, we have held that this non-retroactivity provision barred the application of the new statute to certain factual contexts involving pre-existing agreements or orders. See Landers v. Landers, ___ N.J. Super. ___ (App. Div. 2016) (slip op. at 11-15) (deeming the retirement provision in subsection (j)(1) of the new statute inapplicable to already-existing support agreements and prior court orders and judgments); Spangenberg v. Kolakowski, 442 N.J. Super. 529, 532, 538-39 (App. Div. 2015) (declining to apply the cohabitation criteria of subsection (n) retroactively to parties who had entered into an agreement that contemplated that alimony would be subject to review "consistent with the Gayet [v. Gayet] case and evolving case[]law").

We need not resolve the retroactivity issue in this case for several reasons. First, as we have already noted, the language in the parties' PSA is arguably ambiguous as to whether the phrase in which the parties agreed to allow alimony to be modified or terminated "pursuant to New Jersey statutes and case law" encompasses future statutory changes in the law, such as the 2014 amendments, or whether it freezes the parties' obligations to be governed by the law as it existed in 2003 when they divorced. We recognize that the new statute eliminates the modification of alimony as a remedial alternative to termination or suspension upon a finding of cohabitation. But that does not necessarily mean that the parties here intended such a future statutory change in remedial options to eliminate the retrospective applicability of later-codified substantive criteria for proving cohabitation itself. We note in this regard that, unlike the agreement in Spangenberg, the PSA does not refer to Gayet or any other prior cohabitation precedent.

Although we have considered remanding for a plenary hearing to ascertain through extrinsic proofs the parties' actual intent in drafting this PSA provision concerning further statutory changes in alimony, we do not compel such an exercise to resolve the retroactivity question here. Nor do we perceive a need to opine upon whether subsection (n) is or is not substantively less stringent than prior case law. We decline to resolve these questions because we are persuaded that regardless of whether the court applies the cohabitation standards expressed in subsection (n) or the standards noted in Konzelman and prior case law the ex-husband has failed under either set of guideposts to present a prima facie case of cohabitation.

The ex-wife has attested that she and her significant other spend only about 100 to 110 nights each year with one another. This presently-unrefuted evidence amounts to essentially a weekend of overnights each week, far less than a majority of the days of the year. Although we do not treat the frequency of overnights as a dispositive "litmus test" for cohabitation, (and are mindful that subsection (n) of the new statute, if it applied, expressly disallows such per se reasoning) their infrequency here is certainly a significant consideration that bolsters the trial court's conclusion that a prima facie case has not been presented.

We are mindful that the materials submitted to the trial court including the Facebook postings of the significant other reflect that he and the ex-wife take part with one another in a variety of social and family activities, go on vacations together, and attend graduation ceremonies, family gatherings and other such events together. Even so, the present record lacks any evidence that the couple's finances are intertwined or that the ex-wife is financially dependent upon the significant other.

There is no proof of joint bank accounts or other joint asset holdings or liabilities; no proof that the couple share living expenses; and no proof of any enforceable promise of support. With the exception of occasional snow removal the significant other performs at the ex-wife's house, there is essentially no proof of shared household chores. Regardless of whether the criteria now codified in subsection (n) or those expressed in prior case law are applied, the record amassed by the ex-husband was reasonably deemed insufficient by the motion judge to rise to the level of a prima facie case that would justify the additional discovery sought by the ex-husband.

We reject the ex-husband's argument that if the motion judge had considered the Facebook postings, the balance would have tipped in favor of a prima facie showing of cohabitation. We need not decide whether the "adoptive admissions" exception to the hearsay rule, N.J.R.E. 803(b)(2), applies here because the ex-wife's opposing motion certification agreed with or explained much of the information contained in her significant others Facebook postings. The potential applicability of the hearsay exception is inconsequential because, even if all of the Facebook materials proffered by the ex-husband are considered, we remain convinced of the soundness of the trial court's finding that the ex-husband simply has not presented thus far a prima facie case. That being so, the trial court did not misapply its authority in declining the ex-husband's demand for full discovery.

That all said, nothing in this opinion forecloses the ex-husband from making a future attempt to establish a prima facie case with supplemental proofs showing, for example, that the couple resides together more than an average of two nights per week, or that their lives and finances are actually more intertwined than what the present record suggests. Pending such a future motion, however, the ex-husband's alimony obligation shall continue at the level agreed upon in the PSA.2

Affirmed.


1 We have not been asked to address the propriety of this order directed to a non-party to the litigation.

2 In light of our disposition, we need not address the ex-wife's secondary argument that a reduction of her alimony in these circumstances would violate her contract rights under Article IV, Section 7, paragraph 3 of the New Jersey Constitution. See Randolph Town Ctr., L.P. v. County of Morris, 186 N.J. 78, 80 (2006) (instructing that courts should not reach constitutional issues unless it is "imperative" to do so).