C.C. v. R.C.

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                      APPROVAL OF THE APPELLATE DIVISION
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                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4441-15T4

C.C.,

        Plaintiff-Respondent/
        Cross-Appellant,

v.

R.C.,

     Defendant-Appellant/
     Cross-Respondent.
——————————————————————————

              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).

PER CURIAM
     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.

                                 I.

     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

New Jersey.




1
  We use initials to protect the parties' privacy interests.     See
R. 1:38-3(d).

                                 2                          A-4441-15T4
      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

                                         3                            A-4441-15T4
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



                                  4                           A-4441-15T4
obligation, and denying plaintiff's request for attorney's fees

and costs.

     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

of cross-appeal.

     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.



                                      5                            A-4441-15T4
                                    II.

     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

that issue.

     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

v. Quinn, 
225 N.J. 34, 44 (2016).             A settlement agreement is

governed by basic contract principles.         Id. at 45 (citing J.B. v.

W.B., 
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.

                                     6                                A-4441-15T4
     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

amendments]

            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.

            [Quinn, 
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.

                                     7                           A-4441-15T4
       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.

Gayet, 
92 N.J. 149, 153-54 (1983)).

       The   moving    party         bears    the       burden    of     showing    changed

circumstances       that     warrant     modifying         or    terminating        alimony.

Lepis, 
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

                                              8                                      A-4441-15T4
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.      
N.J.S.A.

2A:34-23(k)(7); Lepis, 
83 N.J. at 151.

       Moreover,   
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]."


N.J.S.A. 2A:34-23(l).

       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 
N.J.S.A.

2A:34-23(l).

                                   9                                    A-4441-15T4
       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

circumstances.

       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
             circle.

             [Konzelman v. Konzelman, 
158 N.J. 185, 202
             (1999).]


                                       10                                   A-4441-15T4
    In addition, 
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
         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. 25:1-5(h)]; and

         (7) All other relevant evidence.


                                11                        A-4441-15T4
           [N.J.S.A. 2A:34-23(n).]

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 
N.J.S.A.

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

circle.    See 
N.J.S.A. 2A:34-23(n)(1) to (3); Konzelman, 
158 N.J.

at 202.    Consequently, defendant was not entitled to a plenary

hearing, and his motion to modify or terminate alimony was properly

dismissed.

      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

                                        12                                     A-4441-15T4
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

                               13                           A-4441-15T4
            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.

            [R. 5:3-5(c).]

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
            costs.

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

                                     14                              A-4441-15T4
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.

     Affirmed.




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