LISA B. WALDORF v. JOHN H. WALDORF
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4798-15T4
LISA B. WALDORF,
Plaintiff-Respondent,
v.
JOHN H. WALDORF,
Defendant-Appellant.
________________________________
Submitted January 22, 2018 – Decided May 14, 2018
Before Judges Messano and Vernoia.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hunterdon
County, Docket No. FM-10-0322-07.
John H. Waldorf, appellant pro se.
Lisa B. Waldorf, respondent pro se.
PER CURIAM
Following trial, the Family Part entered the December 21,
2011 judgment of divorce (JOD) that, among other things, ordered
defendant John H. Waldorf to pay plaintiff Lisa B. Waldorf
permanent alimony of $2000 per week. The JOD provided that the
alimony "shall terminate on one of the following events:
[p]laintiff's death or remarriage, [d]efendant's death, or as
otherwise defined by law." Defendant appealed, and while we
affirmed the award of permanent alimony, we concluded "the quantum
of the alimony award . . . [was] a mistaken exercise of
discretion." Waldorf v. Waldorf, No. A-2872-11 (App. Div. June
5, 2014) (slip op. at 14). We remanded "on the limited issue of
the amount of alimony for a recalculation of defendant's permanent
alimony after considering his reasonable expenses in light of his
imputed income." Id. at 23.
In a comprehensive written statement of reasons that
accompanied his December 19, 2014 order, a second judge considered
the September 2014 amendments (the 2014 amendments) to the alimony
statute, particularly
N.J.S.A. 2A:34-23(c),1 thoroughly examined
1 N.J.S.A. 2A:34-23(c) provides:
For any marriage or civil union less than 20
years in duration, the total duration of
alimony shall not, except in exceptional
circumstances, exceed the length of the
marriage or civil union. Determination of the
length and amount of alimony shall be made by
the court pursuant to consideration of all of
the statutory factors set forth in subsection
b. of this section. In addition to those
factors, the court shall also consider the
practical impact of the parties' need for
separate residences and the attendant increase
in living expenses on the ability of both
parties to maintain a standard of living
(footnote continued next page)
2 A-4798-15T4
the parties' financial circumstances, and reduced defendant's
alimony obligation to $1107.78 per week as of the entry of the
JOD. The judge also found that defendant "offer[ed] no objective
proof" of plaintiff's cohabitation with J.M. He denied without
prejudice defendant's request to terminate alimony.
In January 2015, defendant filed a new motion to terminate
alimony based upon plaintiff's alleged cohabitation with J.M., a
man she knew since her high school years. The judge concluded
that based upon the parties' certifications, "there does exist a
dispute as to the period during which [p]laintiff resided with
[J.M.] and . . . her motivations and the parameters of that living
arrangement." In his April 8, 2015 order, the judge added "the
issue of cohabitation" to other issues for which he had previously
ordered a plenary hearing.
(footnote continued)
reasonably comparable to the standard of
living established in the marriage . . . , to
which both parties are entitled, with neither
party having a greater entitlement thereto.
The statute includes a non-exhaustive list of factors to consider
when deciding if "exceptional circumstances" exist, including,
"[w]hether a spouse . . . has a chronic illness or unusual health
circumstance."
N.J.S.A. 2A:34-23(c)(3). The parties were married
less than twenty years, and chronic illnesses have totally disabled
plaintiff since 2003. Waldorf, slip op. at 2. Defendant has not
appealed from the order.
3 A-4798-15T4
After several adjournments,2 the plenary hearing limited
solely to the issue of cohabitation took place before a third
judge on February 29, 2016. The judge took note of the 2014
amendments and advised the parties in writing beforehand that he
would apply
N.J.S.A. 2A:34-23(n) prospectively "only [to] events
after the [statute's] effective date." Defendant offered various
documents, including the December 2014 report of a private
investigator who surveilled the marital home and J.M.'s residence.
Defendant introduced various social media exchanges between
plaintiff and J.M. in 2013 and 2014, and between plaintiff's
children by a prior marriage and J.M.
Plaintiff admitted that she moved out of the marital home,
which was in foreclosure during the divorce trial, in September
2014 and into J.M.'s home for approximately three months.
Plaintiff also admitted that J.M. helped her take the parties' son
to college in Washington, D.C., in August 2014, and that she and
J.M. celebrated Thanksgiving together in 2013.
Plaintiff further acknowledged that she and J.M. filed
domestic violence complaints against each other in January 2015,
and apparently entered into a "consent agreement" to resolve the
dispute. In a prior filing, plaintiff offered the consent
2
Plaintiff's appellate brief attributes the delay, at least in
part, to surgery she required in the interim.
4 A-4798-15T4
agreement to show her relationship with J.M. "became so strained"
that they agreed she would move out of J.M.'s home and "stay away
from each other."3 Plaintiff acknowledged an "off and on"
relationship with J.M., which ended for a period of two years
after the divorce trial, only to be renewed before she moved in
to J.M.'s home.4
Plaintiff borrowed money from J.M. prior to the divorce trial,
however, she denied ever having a joint bank account with J.M.
Plaintiff never resumed living with J.M. after January 2015, nor
did she contribute to the household expenses while living there,
and she denied receiving any money from J.M. in April 2015, when
the parties filed Case Information Statements in anticipation of
the plenary hearing.
The judge entered an order on March 3, 2016, denying
defendant's motion to terminate alimony based on plaintiff's
3
Defendant argued the consent agreement was a sham in that
although signed by J.M., plaintiff and plaintiff's counsel, it was
never filed with the court, as plaintiff claimed. Defendant never
asserted that the contents of the agreement were relevant to the
cohabitation issue, nor was plaintiff questioned about provisions
of the consent agreement that required her to remove her property
from J.M.'s home within a certain period of time, or that J.M.
agreed to pay $1000 toward the moving expenses.
4
J.M. testified during the divorce proceedings, and the trial
judge recognized he was plaintiff's "boyfriend" but never found
the two were cohabitating at the time of the trial.
5 A-4798-15T4
cohabitation with J.M. In a short written opinion, the judge
initially considered
N.J.S.A. 2A:34-23(n), which provides:
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
[N.J.S.A. 25:1-5(h)]; and
(7) All other relevant evidence.
Citing Justice O'Hern's dissent in Konzelman v. Konzelman,
158 N.J. 185, 205 (1999), the judge concluded the statute's "second
6 A-4798-15T4
element," i.e., an "intimate personal relationship," means a
sexual relationship. He reasoned, "in the absence of a sexual
relationship there is no cohabitation under subsection 'n.'"
The judge found plaintiff was a credible witness. He also
found plaintiff and J.M. knew each other for decades, she moved
in briefly with J.M. "in part, to get out from under the bills
generated by her living in the marital home which was under
foreclosure" and the "living arrangement . . . ended badly and has
not resumed." The judge observed that J.M. filed two domestic
violence complaints against plaintiff in January and March 2015. 5
The judge also found plaintiff and J.M. "did not comingle their
money," nor did plaintiff receive any support from J.M.
Defendant filed a motion for reconsideration. Citing
extensively to J.M.'s testimony during the divorce trial, the
exhibits furnished in support of the motion to terminate alimony
and the proposed order that resolved plaintiff's and J.M.'s
domestic violence dispute, defendant essentially argued the judge
overlooked relevant evidence supporting a finding of cohabitation.
The reconsideration motion was decided by a fourth judge.
She noted defendant failed to present the transcript from the
plenary hearing, and therefore failed to provide sufficient
5
There was no testimony or evidence about this second domestic
violence complaint.
7 A-4798-15T4
evidence in support of reconsideration. The judge entered an
order denying the motion for reconsideration on April 29, 2016.
Defendant filed his notice of appeal seeking review of both the
March 3, 2016 order (March order) and the April 29, 2016 order
(April order).
Before us, defendant argues:
I.
TRIAL JUDGE ABUSED DISCRETION AND VIOLATED
N.J.S. 2A:34-23 (ALIMONY REFORM LAW, ENACTED
SEPT. 10, 2014) (SEE, SPANGENBERG V.
KOLAKOWSKI,
442 N.J. SUPER. 529, 536-37 (APP.
DIV. 2015)) BY NOT CONSIDERING NEW LAW AS IT
APPLIES TO THIS CASE.
II.
TRIAL JUDGE ABUSED DISCRETION BY NOT
CONSIDERING KONZELMAN V. KONZELMAN,
158 N.J.
185 (1999) "COHABITATION" ISSUE AS A CHANGE
OF CIRCUMSTANCES, SINCE COHABITATION IS THE
MAIN FACTOR.
III.
TRIAL JUDGE EGREGIOUSLY ABUSED DISCRETION BY
FAILING TO CONSIDER REESE V. WEIS, 430 N.J.
SUPER. 552 (APP. DIV. 2013) AS TO PLAINTIFF-
RESPONDENT RECEIVING SUBSTANTIAL ECONOMIC
BENEFITS IN HER COHABITATION ARRANGEMENT FOR
OVER 8 YEARS.
IV.
TRIAL JUDGE ABUSED DISCRETION FOR FAILING TO
CONSIDER THE MATTER A PRIMA FACIE CHANGE OF
CIRCUMSTANCES AND SIGNIFICANT CHANGE OF
CIRCUMSTANCES PURSUANT TO LEPIS V. LEPIS, 83
N.J. 139 (1980), CREATING UNFAIR BURDEN ON
8 A-4798-15T4
DEFENDANT HUSBAND CAUSING HIM TO LIVE AT LOWER
STANDARD OF LIVING THAN FORMER WIFE IN
VIOLATION OF N.J. LAW.
V.
TRIAL JUDGE EGREGIOUSLY ABUSED DISCRETION BY
FAILING TO IMPLEMENT GAYET V. GAYET,
92 N.J.
149 (1983) PRECEPTS AS PLAINTIFF AND HER
BOYFRIEND WERE TRYING TO CONCEAL THERE WAS NO
ECONOMIC DEPENDENCY BY PLAINTIFF WHICH
CONSTITUTES/D BAD FAITH BY PLAINTIFF.
VI.
TRIAL JUDGE ABUSED DISCRETION IN FAILING TO
INCORPORATE QUINN V. QUINN,
225 N.J. 34
(2016), SHOWING THAT PLAINTIFF CONCEALED HER
COHABITATION FOR FEAR OF LOSING ALIMONY; EVEN
THOUGH PLAINTIFF IS A LICENSED ATTORNEY WELL
VERSED IN THE LAWS OF NEW JERSEY, HAS BEEN
CHIEF EDITOR FOR A LEGAL PUBLICATION FOR OVER
15 YEARS AND ACCORDING TO N.J. DEPT. OF LABOR
OCCUPATIONAL WAGE SURVEY AND ABA JOURNAL.COM
CAN EARN $160,000 ANNUALLY AS AN ASSOCIATE
ATTORNEY.
We affirm.
An appellate court owes substantial deference to the Family
Part's findings of fact because of that court's special expertise
in family matters. Cesare v. Cesare,
154 N.J. 394, 411-12 (1998).
Thus, "[a] reviewing court should uphold the factual findings
undergirding the trial court's decision if they are supported by
adequate, substantial and credible evidence on the record."
MacKinnon v. MacKinnon,
191 N.J. 240, 253-54 (2007) (alteration
in original) (quoting N.J. Div. of Youth & Family Servs. v. M.M.,
9 A-4798-15T4
189 N.J. 261, 279 (2007)). "On the other hand, a 'trial judge's
legal conclusions, and the application of those conclusions to the
facts, are subject to our plenary review.'" Spangenberg v.
Kolakowski,
442 N.J. Super. 529, 535 (App. Div. 2015) (quoting
Reese v. Weis,
430 N.J. Super. 552, 568 (App. Div. 2013)).
Even though the judge considered and applied the 2014
cohabitation amendment,
N.J.S.A. 2A:34-23(n), we are unsure it
applies. In Spangenburg,
442 N.J. Super. at 536-37, there was a
marital settlement agreement (MSA) that predated the statutory
amendment, and the supported spouse admitted she was cohabitating
with another man. We quoted the following language that
accompanied the 2014 amendment:
This act shall take effect immediately and
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.
[Id. at 538 (quoting L. 2014, c. 42, § 2)
(emphasis added).]
We held "[t]his additional statement signals the legislative
recognition of the need to uphold prior agreements executed or
10 A-4798-15T4
final orders filed before adoption of the statutory amendments."
Ibid.
Here, there was no MSA. The trial judge authored the alimony
provisions of the JOD, which did not address cohabitation at all.
However, defendant sought to "modify the duration of alimony
ordered . . . that ha[d] been incorporated into . . . a final
judgment of divorce" that predated the enactment of the 2014
amendment. L. 2014, c. 42, § 2. We question, therefore, whether
the amendment applies.
Nevertheless, the factors now addressed by the statute mirror
those outlined by the Court in Konzelman,
158 N.J. at 202
("Cohabitation involves an intimate relationship in which the
couple has undertaken duties and privileges that are commonly
associated with marriage. These can include . . . living together,
intertwined finances . . . , sharing living expenses and household
chores, and recognition of the relationship in the couple's social
and family circle."). The judge clearly analyzed those factors
based upon the credible evidence adduced at the hearing. Defendant
only argues that the judge reached the wrong result.
Defendant's arguments that the judge failed to consider the
holding in Reese, and the Court's opinions in Quinn v. Quinn,
225 N.J. 34 (2016), and Gayet v. Gayet,
92 N.J. 149 (1983), are
unavailing. In Reese,
430 N.J. Super. at 557-58, we held that
11 A-4798-15T4
"the inquiry regarding whether an economic benefit arises in the
context of cohabitation must consider not only the actual financial
assistance resulting from the new relationship, but also should
weigh other enhancements to the dependent spouse's standard of
living that directly result from cohabitation." However,
cohabitation was not in dispute in Reese, id. at 559, while here
it was the central unresolved issue ultimately decided against
defendant.
In Quinn,
225 N.J. at 39, the Court held that if a marital
settlement agreement provided for the termination of alimony upon
the dependent spouse's cohabitation, the court should enforce the
terms of the agreement and terminate alimony, rather than suspend
it during the period of cohabitation. Again, Quinn has no
application to this case because the judge here found there was
no cohabitation. The same is true of Gayet,
92 N.J. at 154-55,
where the Court held "that cohabitation shall constitute . . .
changed circumstances" under Lepis v. Lepis,
83 N.J. 139, 157
(1980), warranting discovery and a hearing on modification of
alimony.
Lastly, we have said that
[r]econsideration itself is "a matter within
the sound discretion of the Court, to be
exercised in the interest of justice[.]" It
is not appropriate merely because a litigant
12 A-4798-15T4
is dissatisfied with a decision of the court
or wishes to reargue a motion, but
should be utilized only for those
cases which fall into that narrow
corridor in which either 1) the
Court has expressed its decision
based upon a palpably incorrect or
irrational basis, or 2) it is
obvious that the Court either did
not consider, or failed to
appreciate the significance of
probative, competent evidence.
[Palombi v. Palombi,
414 N.J. Super. 274, 288
(App. Div. 2010) (quoting D'Atria v. D'Atria,
242 N.J. Super. 392, 401 (Ch. Div. 1990)).]
"[T]he magnitude of the error cited must be a game-changer for
reconsideration to be appropriate." Id. at 289.
We are troubled by the judge's reasons for entering the April
order denying reconsideration. As a general proposition, our case
law favors having one judge hear all motions associated with the
same Family Part matter. See, e.g., Feldman v. Feldman,
378 N.J.
Super. 83, 100 (App. Div. 2005); Pressler & Verniero, Current N.J.
Court Rules, cmt. 1.4 on R. 5:5-4 (2018). This is particularly
true when the motion seeks reconsideration of a prior order.
O'Brien v. O'Brien,
259 N.J. Super. 402, 406 (App. Div. 1992).
Here, the judge who conducted the plenary hearing and entered
the March order was retired and on recall, and we assume he was
unavailable to rule on defendant's motion for reconsideration.
However, defendant quite properly assumed the motion would be
13 A-4798-15T4
heard by the same judge; hence, defendant's failure to order a
transcript of the March hearing was understandable. Under the
circumstances, the wiser course would have been for the judge to
require defendant produce a transcript or otherwise familiarize
herself with the evidence from the plenary hearing using Court
Smart. Moreover, since the hearing judge had issued a written
opinion, the reconsideration judge already had the benefit of his
reasoning.
Nevertheless, we see no reason to remand the matter. We have
considered the arguments defendant advanced in support of
reconsideration, which are reiterated on appeal. For the reasons
already expressed, defendant failed to demonstrate any error in
the judge's conclusion that plaintiff was not cohabitating with
J.M. We limit our judgment to the specific orders before us, and
express no opinion whether issues defendant raises in his reply
brief present sufficient changed circumstances warranting
termination or modification of alimony. See, e.g., Bacon v. New
Jersey State Dept. of Educ.,
443 N.J. Super. 24, 38 (App. Div.
2015) ("We generally decline to consider arguments raised for the
first time in a reply brief.").
Affirmed.
14 A-4798-15T4
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