NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-4441-15T4
Submitted October 31, 2017 – Decided December 26, 2017
Before Judges Reisner, Gilson, and Mayer.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex
County, Docket No. FM-12-2496-03.
Snyder, Sarno, D'Aniello, Maceri & Da Costa,
LLC, attorneys for appellant/cross-respondent
(Richard A. Outhwaite, on the briefs).
Drescher & Cheslow, PA, attorneys for
respondent/cross-appellant (Robert E.
Goldstein and Lauren E. Caesar, on the brief).
In this post-judgment-divorce matter, defendant R.C.1 appeals
from a May 13, 2016 order denying his motion to reduce or terminate
his alimony obligation, without an evidentiary hearing. Plaintiff
C.C. cross-appeals from the provision of the order denying her
request for attorney's fees. We affirm because defendant did not
establish a change of circumstances warranting a reduction or
termination of his alimony, and the Family Part did not abuse its
discretion in denying attorney's fees to plaintiff.
The parties were married in 1981, and divorced in 2004. They
have three children, who are all emancipated. At the time of
their divorce, the parties entered into a property settlement
agreement (PSA), which was incorporated into their judgment of
divorce (JOD). Under the PSA, defendant agreed to pay plaintiff
$800 per week in alimony "until the remarriage of the Wife or the
death of either the Husband or the Wife, whichever event shall
occur first[.]" The PSA was silent on the issue of whether
cohabitation or any other change of circumstances would affect
alimony. The PSA also stated that it was governed by the laws of
We use initials to protect the parties' privacy interests. See
At the time of their divorce, defendant was self-employed by
a stump removal company that he partially owned. His case
information statement (CIS) submitted in 2003, showed that he was
earning approximately $70,000 per year. Plaintiff was unemployed,
but in the PSA, defendant contended that plaintiff "ha[d] the
ability to earn income."
Defendant has twice moved to reduce or terminate his alimony
obligation. In April 2013, defendant filed a motion contending
that his financial circumstances had worsened, and that plaintiff
was cohabiting with D.C. The Family Part found that defendant did
not establish a prima facie showing of cohabitation, but allowed
discovery concerning the parties' financial circumstances.
Plaintiff then served defendant with discovery demands. When
defendant failed to fully respond, the court ordered defendant to
produce all of the requested discovery. Defendant failed to comply
with that order, and on February 24, 2014, the court entered an
order dismissing defendant's first motion for failure to comply
with discovery demands. Defendant did not appeal that order.
Instead, in September 2015, defendant filed a second motion
seeking to reduce or terminate his alimony obligation. Defendant
contended that his financial circumstances had worsened,
plaintiff's financial circumstances had improved, and plaintiff
was cohabiting with D.C. The Family Part allowed discovery on the
parties' current financial circumstances and whether plaintiff was
cohabiting with D.C. In that regard, the court allowed discovery
from plaintiff, but precluded discovery from D.C.
Thereafter, the parties engaged in discovery. Defendant's
tax returns for 2013 and 2014 showed gross annual incomes of
$95,375 and $83,601, which he derived from a U-Haul franchise that
he partially owned and from rental property income. Defendant did
not produce information about his income in 2015. The CIS he
submitted in September 2015 stated that his net year-to-date income
was "$0." The CIS, however, listed his monthly expenses as $7,876,
and stated that he was a partner in two businesses; an industrial
park, and a tree landscaping service. In her discovery responses,
plaintiff maintained that she was still unemployed and that her
principal source of income was alimony.
In April 2016, plaintiff moved for summary judgment arguing
that defendant could not show a change in the parties' financial
circumstances or cohabitation and, therefore, there was no need
for a plenary hearing. Plaintiff also requested an award of
attorney's fees and costs. Defendant filed opposition. The court
heard oral argument, and on May 13, 2016, the court entered an
order granting summary judgment to plaintiff, dismissing
defendant's request for a reduction or termination of his alimony
obligation, and denying plaintiff's request for attorney's fees
The court explained the reasons for its decision in an oral
opinion on May 13, 2016. On August 10, 2016, the court issued a
written amplification of its decision under Rule 2:5-1(b), after
defendant filed a notice of appeal and plaintiff filed a notice
The Family Part found that defendant failed to establish a
change in circumstances warranting a modification or termination
of his alimony. With regard to financial circumstances, the court
held that defendant had "abandoned" that argument. Nevertheless,
the court also found that defendant had not provided sufficient
information to establish a change in his financial circumstances.
Turning to cohabitation, the court found that, following
discovery, defendant failed to uncover any evidence that plaintiff
was cohabiting with D.C. Specifically, the Family Part found that
there was no evidence that plaintiff and D.C. were financially
supporting each other.
The Family Part also denied plaintiff's request for
attorney's fees and costs, finding that defendant did not file his
post-judgment motion in bad faith, and that plaintiff's affidavit
of services did not comply with the governing rules.
On appeal, defendant argues that the Family Part erred in
(1) dismissing his initial motion for failure to comply with
discovery, (2) granting summary judgment, (3) allowing some
discovery on the issue of cohabitation, but then granting summary
judgment without a plenary hearing, and (4) not considering
plaintiff's increased "economic good fortune." In her cross-
appeal, plaintiff contends that we should reverse the Family Part's
denial of her request for attorney's fees and costs and remand
Having considered the arguments presented, we affirm. We
will first address defendant's appeal, focusing on whether he made
a showing of a change in financial circumstances or cohabitation.
Thereafter, we will address plaintiff's cross-appeal.
A. Defendant's Appeal
Defendant filed a post-judgment motion seeking to reduce or
terminate his alimony obligation. Here, the parties had entered
into a PSA, which is an enforceable settlement agreement. Quinn
225 N.J. 34, 44 (2016). A settlement agreement is
governed by basic contract principles. Id. at 45 (citing J.B. v.
215 N.J. 305, 326 (2013)). Accordingly, a court's role is
to discern and implement the intention of the parties as expressed
in the agreement. Ibid.
In their PSA, the parties did not expressly address whether
alimony could be modified or terminated if the parties had a change
in their financial circumstances, or if plaintiff cohabited with
another person. Nevertheless, it has long been established that
alimony may be revised and altered by the court from time-to-time
as circumstances may require.
N.J.S.A. 2A:34-23. In September
2014, the Legislature amended the alimony and maintenance statute,
N.J.S.A. 2A:34-23, "to more clearly quantify considerations
examined when faced with a request to establish or modify alimony."
Spangenberg v. Kolakowski,
442 N.J. Super. 529, 536-37 (App. Div.
2015). The amendment became effective September 10, 2014. L.
2014, c. 42, §1. The Legislature, however, clarified that [the
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.
225 N.J. at 51 n.3 (quoting L. 2014,
c. 42, §2).]
"This additional statement signals the legislative recognition of
the need to uphold prior agreements executed or final orders filed
before adoption of the statutory amendments." Spangenberg,
442 N.J. at 538.
The PSA here was entered in 2004, before the September 10,
2014 amendment to N.J.S.A. 2A:34-23 became effective.
Nevertheless, the PSA does not include any provisions prohibiting
the modification of alimony. Instead, the PSA stated that it
would be governed by New Jersey law and, at the time the PSA was
executed, New Jersey law provided that alimony could be modified
if a party demonstrated changed circumstances, including both a
change in financial circumstances or cohabitation. Quinn,
225 N.J. at 49 (citing Lepis v. Lepis,
83 N.J. 139, 152 (1980)).
Moreover, 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 cohabiting party. Ibid. (citing Gayet v.
92 N.J. 149, 153-54 (1983)).
The moving party bears the burden of showing changed
circumstances that warrant modifying or terminating alimony.
83 N.J. at 157. A plenary hearing is only required when a
party demonstrates "the existence of a genuine issue as to a
material fact[.]" Id. at 159. In Lepis, the Court recognized a
non-exhaustive list of factors that give rise to changed
circumstances warranting modification of alimony. Id. at 151.
Similarly, in N.J.S.A. 2A:34-23(k) and (l), the Legislature
identified the factors a court shall consider when a party seeks
to modify alimony. Among the factors to be considered both under
Lepis and the amended
N.J.S.A. 2A:34-23(k), are changes in the
respective financial circumstances of the parties.
83 N.J. at 151.
N.J.S.A. 2A:34-23(l) specifically sets forth
requirements for a "self-employed party seek[ing] modification of
alimony because of an involuntary reduction in income[.]" Such a
party "must include an analysis that sets forth the economic and
non-economic benefits the party received from the business, and
which compares these economic and non-economic benefits to those
that were in existence at the time of the entry of the [JOD]."
Here, defendant made no showing of a change in his, or
plaintiff's, economic circumstances. At the time defendant
entered into the PSA, his income was approximately $70,000 per
year. In moving to modify his alimony, defendant did not submit
proof establishing his income for 2015. Discovery, however,
revealed that in 2014 defendant's gross income was $83,601, which
was over $13,000 more than he was making when he entered into the
PSA. Just as critically, defendant owned two businesses, but
failed to submit an analysis that set forth the economic and non-
economic benefits he received from those businesses. See
Defendant also failed to show that plaintiff's economic
circumstances had substantially improved. Defendant contended
that plaintiff had spent approximately $10,000 more annually than
she received in alimony. In response, plaintiff submitted a
certification explaining that under the PSA she received the
marital home, sold the home in 2013 for $650,000, and bought a new
home for $360,000.
In summary, our review of the record establishes that there
were no genuine issues of material fact in dispute that warranted
a plenary hearing on the basis of a change in financial
The second ground for defendant's request to modify or
terminate his alimony was plaintiff's alleged cohabitation with
D.C. 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
[Konzelman v. Konzelman,
158 N.J. 185, 202
N.J.S.A. 2A:34-23(n) provides for the suspension
or termination of alimony obligations when the dependent spouse
cohabits with another person. The definition of cohabitation is
flexible and specific to the particular circumstances involved.
In relevant part, the statute provides:
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
(1) Intertwined finances such as joint bank
accounts and other joint holdings or
(2) Sharing or joint responsibility for living
(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
(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. 25:1-5(h)]; 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.
Here, defendant made no showing that could satisfy the
definition of cohabitation as set forth in Konzelman or
2A:34-23(n). Following discovery, defendant provided no evidence
that plaintiff and D.C. were involved in a mutually supportive
intimate personal relationship, in which they had undertaken
duties and privileges that are commonly associated with marriage
or a civil union. In that regard, there was no showing of
intertwined finances, a sharing of living expenses, or a
recognition of the relationship in the couple's social and family
N.J.S.A. 2A:34-23(n)(1) to (3); Konzelman,
at 202. Consequently, defendant was not entitled to a plenary
hearing, and his motion to modify or terminate alimony was properly
The analysis we have set forth addresses three out of the
four arguments raised by defendant on appeal. His additional
argument concerns the dismissal of his first motion for failure
to comply with discovery. The motion that defendant filed in 2013
was dismissed on February 24, 2014. Defendant did not file an
appeal from that order and, thus, it is not before us.
B. Plaintiff's Cross-Appeal
In her cross-appeal, plaintiff contends that the Family Part
erred in denying her request for attorney's fees and costs.
Specifically, she argues that defendant should have been ordered
to pay for her attorney's fees and costs because he is in a better
financial position and his post-judgment motion to modify alimony
was filed in bad faith.
An award of attorney's fees in a matrimonial action rests in
the discretion of the Family Part. R. 5:3-5(c); Tannen v. Tannen,
416 N.J. Super. 248, 285 (App. Div. 2010) (citing Eaton v. Grau,
368 N.J. Super. 215, 225 (App. Div. 2004)). On appeal, the Family
Part's decision regarding attorney's fees will be upheld absent a
showing of abuse of discretion. Tannen,
416 N.J. Super. at 285.
Findings by the trial court are binding on appeal "when supported
by adequate, substantial credible evidence." Reese v. Weis,
430 N.J. Super. 552, 567 (App. Div. 2013) (quoting Cesare v. Cesare,
154 N.J. 394, 411 (1998)).
In deciding whether to award attorney's fees, and the amount
of the award, the court should consider:
(1) the financial circumstances of the
parties; (2) the ability of the parties to pay
their own fees or to contribute to the fees
of the other party; (3) the reasonableness and
good faith of the positions advanced by the
parties; (4) the extent of the fees incurred
by both parties; (5) any fees previously
awarded; (6) the amount of fees previously
paid to counsel by each party; (7) the results
obtained; (8) the degree to which fees were
incurred to enforce existing orders or to
compel discovery; and (9) any other factor
bearing on the fairness of an award.
An application for attorney's fees must also include an affidavit
of services that complies with and includes the information
required by Rule 4:42-9(b), (c), and (d). Ibid.
Here, the Family Part applied the relevant factors under Rule
5:3-5(c), and found that although defendant made more money than
plaintiff, his motion was not filed in bad faith. In that regard,
the Family Part found that
[t]he fact that a gentleman is residing in the
home [with plaintiff] for five, maybe six,
maybe seven nights a week, to a lay person
certainly would give rise . . . to an
interpretation that there is cohabitation
going on . . . therefore, each party is going
to be responsible their own counsel fees and
The Family Part's findings were supported by substantial credible
evidence in the record, and we discern no basis to disturb those
findings. Evaluated in context, we also discern no abuse of
discretion because the court did not specifically enumerate every
factor. See Reese,
430 N.J. Super. at 585 (affirming the denial
of attorney's fees where the trial court found that each party was
capable of paying their own fees and that neither party had acted
in bad faith, despite the court's failure to address every factor
under Rule 5:3-5(c)).
The Family Part also found that the affidavit of services
submitted by plaintiff's counsel was not in compliance with Rule
4:42-9 and Rule 5:3-5(c). The basis for that finding is unclear.
A review of the affidavit of services submitted by plaintiff's
counsel demonstrates that it complied with the governing rules.
Nevertheless, we still affirm the denial of plaintiff's request
for attorney's fees because the court gave a correct alternative
basis for its decision.