CARL B. GILLE, JR v. NADINE S. GILLE

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                      APPROVAL OF THE APPELLATE DIVISION
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        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-1883-15T4

CARL B. GILLE, JR.,

        Plaintiff-Appellant,

v.

NADINE S. GILLE,

        Defendant-Respondent.


              Argued November 15, 2017 – Decided January 9, 2018

              Before Judges Alvarez and Currier.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Monmouth
              County, Docket No. FM-13-1795-09.

              Allan Weinberg argued the cause for appellant.

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

PER CURIAM

        Plaintiff Carl B. Gille, Jr., appeals a December 16, 2015

order denying his motion to terminate alimony payable to his former

wife, defendant Nadine S. Gille, based on her alleged cohabitation.
The order also awarded defendant $7062.17 in counsel fees, a

portion of the requested amount.             We affirm.

      The parties engaged in extensive motion practice regarding

financial matters while the divorce was pending as well as after

the decree was entered on September 26, 2011.                       They have four

sons.

      In an April 7, 2015 order, which provides the context for our

decision, the judge noted that defendant receives baseline alimony

of $135,000 a year, subject to upward adjustment based on whether

plaintiff's annual income exceeds $500,000 annually.                       Plaintiff

earned $758,971 in 2013.

      Much   of   the   post-judgment        litigation,      including     the   two

occasions    plaintiff    was    found       in   violation    of    the    parties'

matrimonial settlement agreement (MSA), centered on plaintiff's

obligation to provide defendant with his financial records on an

annual basis.     The obligation was agreed to by the parties so that

upward adjustments could be made, when appropriate, to his alimony

and child support payments.         Plaintiff's earnings in past years

have on occasion exceeded $3 million annually.

      Plaintiff was found to have violated the MSA in the April 7,

2015 order, and defendant was awarded $7200 in legal fees.                    In the

decision, the judge stated that plaintiff had "consistently acted

in   bad   faith"   and   with   "blatant         disregard    for    his    [MSA]."

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Additionally,      the     court   noted       that    plaintiff's      responses       to

defendant's request for financial information were "disturb[ing]."

       During a ninety-day period from February 9, 2015, to April

4, 2015, plaintiff paid a private detective to watch defendant's

home.     The detective recorded his observations over twenty-nine

days.     On thirteen occasions, defendant's boyfriend was present

overnight.     He was seen retrieving mail, assisting one of the

parties' children in clearing a driveway of snow, and entering the

home even when defendant or the children were not present.

       The judge who decided the cohabitation motion had presided

over at least some of the parties' post-judgment litigation and

rendered    the    April    decision.          During    oral    argument       on   this

application, she observed that plaintiff had not obtained an update

of the investigator's report immediately prior to filing the

motion.    In the judge's written statement of reasons issued after

oral    argument,    she     reiterated         that    the     MSA    provided      that

cohabitation would be a basis for modification or termination of

the alimony obligation, "governed by the existing law at the time

the application is made."             She found that defendant and her

boyfriend    had    no   intertwined       finances,      did    not    share     living

expenses, and that although defendant was dating him, they did not

refer to themselves in conversation as "boyfriend and girlfriend."

The judge also found that the documented instances of defendant's

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boyfriend engaging in activities around defendant's house were

very limited, and were instances of "chivalry," not the performance

of household chores on a continuous basis.       She concluded the

report established a dating relationship, "but nothing more."

     When considering plaintiff's request for reimbursement of his

fees for the detective and for counsel fees, and defendant's

request for fees, the judge further found that plaintiff earned

$758,971 in 2013, based on his 2013 income tax return, while

defendant received a base alimony payment of $135,000 annually

"with payment of additional true up alimony based on [p]laintiff's

additional earnings."   Plaintiff clearly had the financial ability

to contribute to defendant's $10,593.25 counsel fee.      The judge

further considered the factors pursuant to Rule 4:42-9(a)(1),


N.J.S.A. 2A:34-23, and Rule 5:3-5(c), including plaintiff's good

faith in pressing the claim.   After weighing those considerations,

she ordered plaintiff to pay defendant $7062.17.

     On appeal, plaintiff raises the following points for our

consideration:

          POINT ONE
          THE TRIAL COURT'S DECISION IS NOT SUPPORTED
          BY COMPETENT CREDIBLE EVIDENCE AND REPRESENTS
          A SHARP DEPARTURE FROM REASONABLENESS THAT
          REVERSAL IS REQUIRED.




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         POINT TWO
         THE MOTION COURT IMPROPERLY AND BASELESSLY
         DETERMINED THAT MR. GILLE IS TO PAY CERTAIN
         COUNSEL FEES TO DEFENDANT AND NOT RECEIVE
         COUNSEL [FEES] IN CONNECTION TO HIS MERIT-
         [BASED] MOTION.

                               I.

    We begin our discussion of the legal issues with the statute.


N.J.S.A. 2A:34-23 provides that:

         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 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

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               from another person within the meaning of
               subsection h. of R.S.25:1-5; and

               (7) All other relevant evidence.

               [N.J.S.A. 2A:34-23(n).]

       Because cohabitation is a form of changed circumstances,

establishing a basis for modification or termination, the same

standards are applied.        Gayet v. Gayet, 
92 N.J. 149, 155 (1983);

Lepis v. Lepis, 
83 N.J. 139, 146 (1980). A finding of cohabitation

and termination of alimony rests within the sound discretion of

the Family Part judge.        Innes v. Innes, 
117 N.J. 496, 504 (1990).

We do not substitute our judgment for that of the trial court unless

a manifest injustice would result.          Cesare v. Cesare, 
154 N.J. 394,

412 (1998).

       We accord substantial deference to fact finding by the family

court because of its special jurisdiction and expertise.             Id. at

413.     In the process of rendering her decision about the facts

established in the investigative report and defendant's responses,

the    judge    made   determinations   regarding   whether   plaintiff    had

established a prima facie case under the statute, albeit based on

certifications, not testimony.

       Awards of counsel fees and costs are also discretionary with

the court and will only be disturbed in clear cases of abuse.             Yueh

v. Yueh, 
329 N.J. Super. 447, 450 (App. Div. 2000); Rendine v.



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Pantzer, 
141 N.J. 292, 317 (1995).    "[T]he award of counsel fees

and costs in a matrimonial action rests in the discretion of the

court."     Williams v. Williams, 
59 N.J. 229, 233 (1971).       The

authority for awards of counsel fees in actions for enforcement

of interspousal agreements is carved out in Rules 4:42-9(a)(1) and

5:3-5(c).    Rule 5:3-5(c) provides, in relevant part:

            Subject to the provisions of R. 4:42-9(b),
            (c), and (d), the court in its discretion may
            make an allowance, both pendente lite and on
            final determination, to be paid by any party
            to the action, including, if deemed to be
            just, any party successful in the action, on
            any claim for . . . enforcement of agreements
            between spouses, . . . and claims relating to
            family type matters.     All applications or
            motions seeking an award of attorney fees
            shall include an affidavit of services at the
            time of initial filing, as required by
            paragraph (d) of this rule.

     The factors to be considered include:       (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 both during and prior to trial; (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



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(9) any other circumstance bearing on the fairness of an award.

R. 5:3-5(c).

       In deciding whether to award counsel fees, the court should

also   consider   "whether   the   party   requesting   the   fees    is    in

financial need; whether the party against whom the fees are sought

has the ability to pay; the good or bad faith of either party

. . . the nature and extent of the services rendered; and the

reasonableness of the fees."        Mani v. Mani, 
183 N.J. 70, 94-95

(2005).

                                   II.

       Contrary to plaintiff's arguments, the trial court in this

case correctly interpreted the language of the MSA, which referred

the judge back to the statute.      The judge's decision was based on

her conclusion that plaintiff's evidence simply did not meet the

elements of the statute.     
N.J.S.A. 2A:34-23.     The judge said:

             Maybe [the investigator] should have sat for
             -- maybe he should have made those 13-14 days
             two weeks in a row, and they would have had a
             really, really good sense. . . . [I]f he had
             come in here with the two week thing, and said,
             look, in two weeks he was there 13 out of 14
             nights or, you know, eight out of -- you know,
             14 nights. Then we're talking. But he didn't.
             . . . I have to be honest with you, obviously,
             and tell you that the totality of the facts
             of this case do not make me even wonder if
             he's living there.

She added:


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             Him plowing the snow, if he didn't, I'd
             probably be aggravated with him. You know, you
             -- she -- she pays for snow removal, great,
             but when the snow comes down, and you're going
             to get the cars out, or you're leaving for
             work, and somebody is there, you say, go
             ahead, you're going to shovel, great. Get out
             there and do it.    That doesn't mean you're
             performing the -- you know, the -- it's
             relationship stuff. It's nice, but it's not
             spousal function . . . .

             I can appreciate that [plaintiff] says, gee,
             every time I went over there to pick up the
             kids, he was there. I got it. But you know
             what, he has a right to be there every day,
             just not living there, just not sleeping over
             every day, and not – not getting the benefit
             of the home, and all that.    I've got a guy
             that you acknowledge, yourself, has his own
             residence. He's got a job. He's up and out.
             . . . I'm not seeing it.

        It was for these express reasons that the judge opined that no

prima    facie   case   was   established.      Of   the   statutory    elements,

plaintiff    only   demonstrated    that     defendant's    boyfriend    spent   a

limited number of nights in the home.                The proofs did not even

establish that he lived with defendant.              
N.J.S.A. 2A:34-23(n)(4).

If no prima case was established, then no discovery or plenary hearing

was warranted.      Absent such a prima facie showing, discovery and a

plenary hearing are not required in changed circumstance cases.               See

Larbig v. Larbig, 
384 N.J. Super. 17, 23 (App. Div. 2006) (citing

Lepis, 
83 N.J. at 157).

        Plaintiff contends that the judge abused her discretion by

failing to more fully explain her decision regarding fees.              The judge

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certainly could have expanded on her application of the statutory

factors to the parties' claims, but she clearly considered them in

making her decision.    She heavily weighed the fact that plaintiff,

at a minimum, earned approximately five times defendant's only income

— alimony, she considered defendant the prevailing party on the

question   of   cohabitation,    and    had   some     reservations   regarding

plaintiff's good faith.    He brought the application when additional

motion practice had just ended unfavorably to his position.

     Accordingly, we consider the judge's discussion of the relevant

factors was sufficient.         In   light    of the    disparity in income,

plaintiff's inconsistent compliance with prior court orders regarding

support, and his lack of success on the application, no abuse of

discretion occurred.

     Affirmed.




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