CHARLES SCHMITT v. JENNIFER LUPO-SCHMITT

Annotate this Case
NOT FOR PUBLICATION WITHOUT THE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-2053-16T2

CHARLES SCHMITT,

        Plaintiff-Appellant,

v.

JENNIFER LUPO-SCHMITT,

        Defendant-Respondent.

________________________________

              Submitted May 2, 2018 – Decided May 16, 2018

              Before Judges Nugent and Currier.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Union County,
              Docket No. FM-20-0386-14.

              DeTorres & DeGeorge, LLC, attorneys for
              appellant (Luther G. Jones, IV, of counsel and
              on the brief).

              Law Offices of Lawrence W. Luttrell,                 PC,
              attorneys   for   respondent   (Lawrence              W.
              Luttrell, of counsel and on the brief).

PER CURIAM

        Plaintiff, Charles Schmitt, appeals from an October 3, 2016

Family Part order that (1) denied his motion to terminate alimony
payments   based   on    defendant      Jennifer      Lupo-Schmitt's      alleged

cohabitation and (2) awarded defendant counsel fees.                      Because

plaintiff failed to establish a prima facie case of defendant's

cohabitation,   and     because   the       record    discloses     no   abuse    of

discretion by the court in awarding fees, we affirm.

     When the parties divorced in October 2014, they signed a

Marital Settlement Agreement (MSA).                  Plaintiff agreed to pay

defendant limited duration alimony of $1500 per month for six

years, commencing on plaintiff's "first pay period after the house

sells and after the agreeable marital debts are paid from the tax

refund and sale of the marital residence." The parties also agreed

plaintiff's alimony obligation would terminate if, among other

reasons, defendant "co-habits with a person of the opposite sex."

Plaintiff did not begin making alimony or child support payments

when the parties sold the marital residence in June 2015.                 A March

10, 2016 order required plaintiff to begin making payments at that

time.

     Two months later, on May 23, 2016, plaintiff moved for an

order   terminating     his   alimony       obligation   due   to    defendant's

cohabitation.      Plaintiff asserted defendant was residing with

another man who was "financially responsible for providing for

her."   He alleged, among other things, "[t]hey live together and

share day to day responsibilities.               They have had a lifelong

                                        2                                  A-2053-16T2
friendship of [forty] years and now live together as a family."

Plaintiff also asserted the man was a lawyer, gave defendant free

legal advice, and was defendant's "primary childcare provider."

      Defendant opposed the motion and filed a cross-motion for a

change of venue based on plaintiff working in the Union County

Sheriff's Department since "approximately 1992."            Defendant had

made no secret about moving into the residence.         To the contrary,

she had written to plaintiff in February and informed him she

would be moving into the residence with their children, though she

did not disclose who lived there.        The residence belonged to her

best friend's father (the father).       He permitted her to live there

until she could obtain affordable housing.

      Defendant's best friend's brother (the brother) also resided

in the house.   Defendant certified, and the brother confirmed in

a   certification,   that   she   had   no   relationship   with   him,    he

supported neither her nor her children, and he did not provide

childcare for her.

      Defense counsel sent plaintiff a letter demanding he withdraw

the motion because it was frivolous and unsupported by anything

other than his unfounded accusations.            In addition, defendant

requested reasonable counsel fees.

      The court did not decide the cross-motions.             Rather, the

court ordered the parties to engage in limited discovery and

                                    3                               A-2053-16T2
ordered    defendant   to    provide     certain    documents   to   plaintiff.

Following     discovery     and     oral     argument,    the   court     denied

plaintiff's motion and awarded defendant counsel fees.                Plaintiff

moved for reconsideration of the counsel fee award.                   The court

amended and reduced the fee award.            Plaintiff filed this appeal.

     The motion record contained these facts, most of which were

provided by defendant during discovery.              After the parties sold

their marital home in June 2015, defendant resided with her sister

through the following February.            She had moved from there into the

home owned by the father before plaintiff filed his motion in May

2016.     The father agreed to let her live in his home with her

children    until   she     could   be     placed   in   affordable     housing.

Defendant produced evidence of her affordable housing application

as well as confirmation she had been placed on the affordable

housing waiting list, had applied a second time, and had updated

her on-line profile for affordable housing.

     In addition to the father, the brother also resided in the

home.     Defendant again certified she had no romantic or intimate

relationship with the brother, the brother supported neither her

nor her children, and the brother provided her with no financial

assistance.    As verification, defendant provided copies of earning

statements for relevant time periods and bank statements.



                                         4                               A-2053-16T2
     The brother also submitted a certification.           According to

him, his father owned the home and had assumed responsibility for

all costs and bills associated with the home.        The brother denied

any intimate relationship with defendant.        He certified he did not

support defendant nor provide her with any type of assistance.           He

added that defendant had been his sister's best friend since they

were sixteen years old.

     Judge Alan G. Lesnewich denied the motion on October 3, 2016,

in a thorough and thoughtful opinion.            After "review[ing] the

record in depth," including the factors the court must consider

when assessing whether cohabitation is occurring, 
N.J.S.A. 2A:34-

23(n)(1) to -(7), Judge Lesnewich determined plaintiff had failed

to establish a prima facie case.       The judge explained, "[t]o the

contrary, what becomes clear upon a thorough review of the record

is that [p]laintiff has made a meritless and bald allegation that

[d]efendant is cohabitating."   Judge Lesnewich noted, "[t]he mere

fact that [d]efendant is living in the same house as another person

of the opposite sex is not on its face a prima facie showing of

cohabitation."    The   judge   also    noted,    "[t]he   only   logical

conclusion that can be drawn from the record is that [d]efendant

is no more cohabitating with her best friend's brother than she

is cohabitating with her best friend's father."



                                  5                               A-2053-16T2
     After   considering   his    authority    to    award    counsel     fees,

defense   counsel's   affidavit    of    services,   Rule    4:42-9(b),      and

R.P.C. 1.5(a), the court awarded defendant fees.

     Plaintiff moved for reconsideration of the court's fee award

and sought other relief not relevant to this appeal.               Defendant

opposed the motion and sought additional counsel fees for filing

the opposition.    In another thorough opinion dated December 20,

2016,     Judge   Lesnewich       denied     plaintiff's       motion        for

reconsideration after determining he had not met the standard

required to have the court reconsider its previous decision.

Nonetheless, the judge amended and reduced the previous fee award.

The judge denied defendant's motion for additional fees.

     On appeal, plaintiff contends the court erred in finding he

failed to establish a prima facie case.              He also contends the

court erred by considering hearsay statements.              Last, he makes a

twofold attack on the counsel fees, contending the award is

unsupported by the record and is contrary to law.                 We reject

plaintiff's arguments and affirm, substantially for the reasons

expressed by Judge Lesnewich in his well-reasoned opinions.                    We

add only the following brief comments.

     
N.J.S.A. 2A:34-23(n) addresses a person's cohabitation in the

context of alimony payments.       The statute states:



                                     6                                  A-2053-16T2
                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 from another person
                within the meaning of subsection h.
                of R.S.25:1-5; and

                (7) All other relevant evidence.

    Plaintiff established none of these criteria.              Even though

Judge   Lesnewich   provided   plaintiff   the   opportunity    to    obtain

limited discovery, plaintiff was unable to demonstrate defendant

                                   7                                 A-2053-16T2
shared      with   either   the   father       or   the    brother      "a   mutually

supportive, intimate personal relationship in which a couple has

undertaken duties and privileges that are commonly associated with

marriage or civil union."

      Stated differently, plaintiff failed to provide any evidence

to support the bald assertions he had made in his motion, namely,

that the brother provided defendant with legal advice, shared in

the day-to-day responsibilities of cohabitating, shared meals,

shared household chores, and was defendant's primary child care

provider when she was not at home. And though plaintiff accurately

asserted defendant and the brother had shared a friendship for

forty years, she had been best friends with the man's sister since

the   two    women   were   teenagers,     a    fact      that   puts   defendant's

"friendship" with the brother into perspective.

      Plaintiff does not argue that he established any of the

statutory criteria.         Rather, he asserts that because the judge

provided him with a limited opportunity for discovery, he had

established a prima facie case that defendant was cohabitating

with another. He argues `he would not have been afforded discovery

had he not established a prima facie case.

      A fair reading of the record, and even a cursory reading of

Judge    Lesnewich's    written    decisions,          demonstrates      the     judge

recognized the difficulty plaintiff faced in establishing a prima

                                       8                                       A-2053-16T2
facie case without any discovery.        The judge permitted limited

discovery for the purpose of determining whether the plaintiff

could establish a prima facie case of cohabitation.        The judge did

not abuse his discretion by doing so.

     We also reject plaintiff's arguments concerning the judge's

award of counsel fees.      Judge Lesnewich recognized the authority

for awarding counsel fees and considered the criteria set forth

in R.P.C. 1.5(a) and Rule 5:3-5(c).          He certainly did not abuse

his discretion in making the award.

     We   have    considered   plaintiff's    remaining   arguments   and

determined they are without sufficient merit to warrant further

discussion.      R. 2:11-3(e)(1)(E).

     Affirmed.




                                    9                            A-2053-16T2