NOT FOR PUBLICATION WITHOUT THE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-1883-15T4
CARL B. GILLE, JR.,
NADINE S. GILLE,
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).
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
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]."
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
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
THE TRIAL COURT'S DECISION IS NOT SUPPORTED
BY COMPETENT CREDIBLE EVIDENCE AND REPRESENTS
A SHARP DEPARTURE FROM REASONABLENESS THAT
REVERSAL IS REQUIRED.
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-
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
(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
subsection h. of R.S.25:1-5; and
(7) All other relevant evidence.
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,
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
329 N.J. Super. 447, 450 (App. Div. 2000); Rendine v.
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
(9) any other circumstance bearing on the fairness of an award.
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
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.
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.
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
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
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