NOT FOR PUBLICATION WITHOUT THE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-2053-16T2
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).
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
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
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
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.
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,
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."
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:
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 liabilities;
(2) Sharing or joint responsibility
for living expenses;
(3) Recognition of the relationship
in the couple’s social and family
(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.
Plaintiff established none of these criteria. Even though
Judge Lesnewich provided plaintiff the opportunity to obtain
limited discovery, plaintiff was unable to demonstrate defendant
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
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).