SHAHAN ISLAM v. MELODY DAVIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

SHAHAN ISLAM,

Plaintiff-Appellant,

v.

MELODY DAVIS,

Defendant-Respondent.

______________________________________

November 4, 2016

Submitted September 27, 2016 Decided

Before Judges Yannotti, Fasciale and Gilson.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-0284-00.

Skoloff & Wolfe, P.C., attorneys for appellant (Richard H. Singer, Jr., of counsel and on the briefs; Thomas J. DeCataldo, on the briefs).

Laurie A. Bernstein, attorney for respondent.

PER CURIAM

Plaintiff Shahan Islam appeals from provisions of an order entered by the Family Part on June 26, 2015, which denied his motion to terminate or otherwise reduce his alimony obligation, and denied plaintiff's request for discovery and a plenary hearing. We reverse and remand to the trial court for further proceedings.

I.

The parties were married on January 29, 1983. The parties had two children: A.I., who was born in May 1993, and Z.I., who was born in November 1998. The marriage was dissolved by an amended judgment of divorce, which was entered on August 29, 2001, and which incorporated the parties' Property Settlement Agreement (PSA). Among other things, the PSA provided that plaintiff would pay defendant permanent alimony in the amount of $1019.23 per week. The PSA stated that plaintiff's alimony obligation would expire upon the death of either party or if defendant remarried.

Plaintiff is an attorney, and the PSA stated he was then earning $200,000 per year. At the time of the divorce, defendant was a full-time caretaker for the children, but the PSA stated that defendant anticipated she would complete her Ph.D. and seek employment as a teacher. Annual income of $35,000 was imputed to defendant. In 2009, plaintiff completed her Ph.D. and took a position as an assistant professor with a college in New York State, earning an annual salary of $42,000.

In 2014, plaintiff filed a motion in the New York courts seeking to terminate or modify his alimony obligation due to defendant's alleged cohabitation with D.W. On October 14, 2004, a support magistrate conducted a hearing on the motion. At the hearing, defendant's counsel initially stated that defendant would not be denying cohabitation with D.W., but then he qualified that statement and said he had yet to get "into specific details with" defendant on that issue. On October 16, 2014, the magistrate issued a written decision on the motion. The magistrate declined to reach the merits of plaintiff's motion or the cohabitation issue. The magistrate determined that New Jersey had exclusive jurisdiction regarding alimony.

II.

On December 19, 2014, plaintiff filed a motion in the Family Part which sought, among other relief, termination or reduction of his alimony obligation based upon defendant's cohabitation, the opportunity for discovery and a plenary hearing, and the award of counsel fees and costs. Defendant filed a cross-motion, seeking the denial of plaintiff's motion, an upward modification of plaintiff's alimony obligation, production by defendant of certain tax information, and the award of counsel fees and costs.

In the certification submitted in support of his motion, plaintiff asserted that during the divorce proceedings, defendant had moved to Pennsylvania with the parties' children. According to plaintiff, in 2002, defendant and D.W. began a dating relationship. Defendant later purchased a residence in Delmar, New York. Plaintiff asserted that defendant was residing in the Delmar home with Z.I. and D.W. Plaintiff stated that D.W. not only resides with defendant, he has also been involved with the parties' children in their graduations, birthdays, and "virtually all holidays." Plaintiff said defendant had admitted that the only reason she has not married D.W. is that "it would end the alimony [he] pay[s] to her."

Plaintiff asserted that he had filed an application in the New York courts to terminate alimony based on defendant's cohabitation with D.W. Plaintiff noted that the parties had appeared before a support magistrate, who asked whether defendant was going to deny cohabitation, and defendant's attorney indicated that she would not. Plaintiff stated that defendant was present in the courtroom and could have, but did not, dispute her attorney's statement.

Plaintiff also asserted that, in addition to cohabitation, there were other changed circumstances. Plaintiff stated that at the time of the divorce, defendant was imputed income of $35,000 based on her anticipated earnings. Plaintiff said that defendant has since completed her Ph.D. and has had "measurable success." He stated that defendant "is a leading art historian, curator, scholar, and a professor." He said defendant's "income no doubt reflects this success and her [imputed income] based upon becoming a new professor is now moot."

As noted, defendant opposed plaintiff's motion. In her certification, defendant stated that she remained economically dependent upon plaintiff. She said her annual income is $42,000, and the college where she is employed has "had a very unstable financial situation." She asserted that she suspects plaintiff's income is $300,000 to $500,000 per year.

Defendant noted that the PSA did not provide for termination of alimony in the event of cohabitation. She asserted that D.W. is her "boyfriend," and they do not reside together. Defendant denied that she and D.W. have a relationship that is "akin" to marriage. She said they do not hold themselves out as a married couple, and they lead "separate and independent lives."

Defendant also asserted that she and D.W. have not comingled their incomes, finances, assets, and debts. They do not own property together. They do not have joint bank accounts or joint credit cards. Defendant stated that she and D.W. each pay their own living expenses, including food, clothes, insurance, car repairs, medical insurance, medical bills, and dental bills.

Defendant denied that she and D.W. had lived together in Pennsylvania. She noted that in 2011, D.W. began working in Wayne, New Jersey, and he rented an apartment in New Jersey. In October 2011, D.W. took a job in Schenectady, New York, and moved into her home temporarily. Defendant stated that on February 1, 2015, D.W. moved out of her home, and lives in his own apartment. Defendant denied that D.W. moved out of her home because of plaintiff's motion. She stated that D.W. "moved out because [their] relationship is not a serious relationship[.]" D.W. had resided with her while A.I. attended college, but she has since graduated from college.

Defendant also stated that when D.W. resided in her home, he paid all of his own living expenses. According to defendant, D.W. paid for the cable television and cable line for the computer. She asserted that D.W. was the only person in the home who watched cable television. D.W. also contributed to the mortgage payments and utility bills while he resided in the home.

During that time, A.I. was attending college. Defendant said her expenses increased significantly due to A.I.'s attendance at college since defendant had to pay for A.I.'s tuition and living expenses. She asserted that although the PSA provided that she was only responsible to contribute part of the children's college costs, based upon her ability to pay, she had paid one-half of A.I.'s college expenses. Defendant stated that D.W.'s payments "helped defray some of those increased expenses."

Defendant also asserted that notwithstanding her income and the alimony payments, she had been forced to downsize her lifestyle. She claimed that there is still a significant shortfall in her monthly budget. Defendant asserted that her assets are limited to retirement accounts which primarily consist of monies received in equitable distribution. She claimed that since she returned to work in 2009, her retirement accounts have generated minimum balances.

In addition, defendant said that her attorney's statement in the New York court proceedings regarding cohabitation was not binding upon her. She stated that the New York court did not address the cohabitation issue, and her attorney's statement is not prima facie evidence that she was cohabiting with D.W. She also stated that although D.W. may have attended certain family functions, this does not constitute cohabitation.

III.

The Family Part judge considered the motions on April 10, 2015, and issued a written decision in which he determined that plaintiff had not established a prima facie case of cohabitation that would warrant review of his alimony obligation. The judge wrote that plaintiff had not shown that defendant's living arrangement with D.W. was tantamount to marriage. The judge stated that although D.W. resided temporarily in defendant's home while A.I. was attending college, he presently maintains his own residence, separate and apart from defendant.

The judge wrote that while D.W. resided in defendant's home, he paid his own expenses, such as utility bills, food, clothing, and the like. The judge noted that D.W. made certain contributions toward defendant's mortgage payments, but defendant had certified that the contributions did not reduce or eliminate her need for alimony. The payments "merely enabled" defendant to contribute more to her share of A.I.'s college expenses. The judge also noted that defendant and D.W. did not purchase property together, and did not maintain any joint bank accounts or credit cards.

The judge found that defendant did not receive any economic benefit from D.W., and there was no indication that D.W. shared household chores with defendant. The judge pointed out that defendant had certified that she was solely responsible for the household chores. The judge also rejected plaintiff's contention that the representations by defendant's counsel in the New York court proceedings constituted an admission of cohabitation, which entitled him to a reduction or termination of alimony.

The judge entered an order dated June 26, 2015, which denied plaintiff's motion to terminate or otherwise reduce his alimony obligation, and denied plaintiff's request for discovery and a plenary hearing. This appeal followed.

IV.

On appeal, plaintiff argues that he established a prima facie case of cohabitation, and the trial court should have ordered the termination of his alimony obligation. Alternatively, plaintiff contends that the court should have ordered discovery and conducted a plenary hearing on the motion. In addition, plaintiff contends that if the matter is remanded to the trial court, a new judge should be assigned to handle the remand proceedings.

"Settlement of disputes, including matrimonial disputes, is encouraged and highly valued in our system." Quinn v. Quinn, 225 N.J. 34, 44 (2016) (citing Konzelman v. Konzelman, 158 N.J. 185, 193 (1999)). A "fair and definitive" agreement, reached by mutual consent, "should not be unnecessarily or lightly disturbed." Ibid. (quoting Konzelman, supra, 158 N.J. at 193-94). A court "should not rewrite a contract or grant a better deal than that for which the parties expressly bargained." Id. at 45 (citing Solondz v. Kornmehl, 317 N.J. Super. 16, 21-22 (App. Div. 1998)). Instead, a court should enforce the terms of a PSA as written unless doing so would bring about "an absurd result." Ibid.

A court may, however, modify a PSA in the event that a party demonstrates changed circumstances, including cohabitation. Id. at 49. Courts consider "whether the change in circumstance is continuing and whether the agreement or decree has made explicit provision for the change." Ibid. (quoting Lepis v. Lepis, 83 N.J. 139, 152 (1980)). Even if a PSA does not expressly provide for the cessation of alimony payments upon cohabitation, a court can modify or terminate alimony if such cohabitation changes the financial circumstances of the cohabitating party. Ibid. (citing Gayet v. Gayet, 92 N.J. 149, 153-54 (1983)).

The moving party bears the burden of showing changed circumstances that warrant modification or termination. Lepis, supra, 83 N.J. at 157. Absent a prima facie showing of changed circumstances, courts should not order discovery of a spouse's financial status. Ibid. If, however, the moving party meets this burden, discovery is appropriate. Ibid. Furthermore, a plenary hearing is only required when material facts are "in genuine dispute." Id. at 159.

Our Supreme Court has stated that a finding of cohabitation

is based on those factors that make the relationship close and enduring and requires more than a common residence, although that is an important factor. Cohabitation involves an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage. These can include, but are not limited to, living together, intertwined finances such as joint bank accounts, sharing living expenses and household chores, and recognition of the relationship in the couple's social and family circle.

[Konzelman, supra, 158 N.J. at 202.]

In addition, N.J.S.A. 2A:34-23(n) provides for the suspension or termination of alimony obligations when the dependent spouse cohabitates with another person. The definition of cohabitation is flexible and specific to the particular circumstances involved. Ibid.

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 responsibility 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 [N.J.S.A. 25:1-5h]; 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.

[Ibid.]

We are convinced that the Family Part judge erred by finding that plaintiff failed to establish a prima facie case of cohabitation. As noted, defendant conceded that D.W. resided with her in her home from October 2011 to February 2015. D.W. moved out after plaintiff filed his motion to terminate alimony. Although defendant insists that D.W. did not move to his own residence because of plaintiff's motion, a fact-finder could draw a different inference based upon the timing of his departure and other evidence.

Moreover, defendant admitted that D.W. contributed to some of the household expenses while he resided in her home. He contributed to defendant's mortgage payments and paid utility bills. Thus, there was some sharing of expenses, the extent of which should be the subject of discovery. Defendant also admitted that D.W. paid for cable television and the cable line for the computer. She claimed that D.W. was the only person in the household who watched cable television. Plaintiff may wish to question the credibility of that claim, as well as defendant's assertion that D.W. never performed any household chores. Defendant also acknowledged that D.W. has attended various family functions. Although defendant insisted that she and D.W. did not hold themselves out as having a relationship akin to a marriage, a fact-finder might reach a different conclusion, based on the totality of the circumstances.

We therefore reverse that part of the trial court's June 26, 2015 order, which denied plaintiff's motion to terminate or modify alimony on the basis of plaintiff's alleged cohabitation and his motion for discovery and a plenary hearing. We remand the matter to the trial court for further proceedings on the motion.

The trial court shall allow the parties to conduct such discovery as the court deems appropriate under the circumstances. Thereafter, the court shall conduct a plenary hearing on the motion, and make appropriate findings of fact and conclusions of law. R. 1:7-4.

Plaintiff also argues that, on remand, the matter should be assigned to a different judge. Plaintiff contends that here the Family Part judge merely accepted the statements that defendant made in her certification, and a new judge should be assigned to preserve the appearance of fairness and impartiality.

We decline to order that the matter be reassigned to another judge. However, if the Family Part judge who rendered the decision at issue believes that he cannot fairly and impartially handle the remand proceedings, the matter should be assigned to another judge.

Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.