JOHN W. SALVATORE v. STACEY SALVATORE

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NOT FOR PUBLICATION WITHOUT THE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-5565-16T2

JOHN W. SALVATORE,

        Plaintiff-Appellant,

v.

STACEY SALVATORE, (n/k/a STACEY
ADUBATO),


     Defendant-Respondent.
__________________________________

              Submitted June 5, 2018 – Decided June 28, 2018

              Before Judges Fisher and Moynihan.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Morris County,
              Docket No. FM-14-0990-11.

              Gomperts Penza McDermott & Von Ellen, LLC,
              attorneys   for  appellant (Marisa  Lepore
              Hovanec, on the brief).

              Dalena & Bosch, LLC, attorneys for respondent
              (Jessica A. Bosch, on the brief).

PER CURIAM

        Plaintiff     appeals    the   trial   judge's     order   denying:        his

request to terminate his alimony and life insurance obligations;
his alternate request for discovery followed by a plenary hearing

to determine if defendant's cohabitation warranted termination of

his alimony obligation; and his request for oral argument.                             We

determine plaintiff established a prima facie case and reverse and

remand this matter for a plenary hearing following court-scheduled

discovery.

       The    parties'    final    judgment     of      divorce    incorporated         a

February 2011 marital settlement agreement (MSA) that provided in

pertinent part: plaintiff's $3333.33 monthly alimony obligation

would terminate upon defendant's remarriage, plaintiff's sixty-

sixth     birthday,      or   either    party's      death;       but     defendant's

"cohabitation with an unrelated adult in a relationship tantamount

to marriage [would] be a re-evaluation event"; and plaintiff's

required      life     insurance,      valued      at     $450,000,           would    be

"proportionately         reduced       commensurate        with         his     alimony

obligation."       Later that year – after defendant advised plaintiff

of her planned cohabitation with her boyfriend, A.M.1 – the parties

signed an addendum to the MSA.            They agreed to the cohabitation;

recognized they were "without sufficient knowledge to determine

whether      the   cohabitation    [would]    be     temporary     or     permanent";

reduced monthly alimony payments by $850 "during the period of



1
    Obviously, we are using his initials.

                                         2                                      A-5565-16T2
cohabitation"; and provided that, "[b]ecause the [p]arties cannot

determine the permanency of the cohabitation," alimony would be

reinstated "at the full amount in the [MSA] . . . for the remainder

of the term" if defendant's cohabitation with A.M. terminated.

     Plaintiff    filed   the   motion   under   review   in   May     2017,

contending defendant's continued cohabitation with A.M. since

December 2011 warranted the termination of his alimony and life

insurance obligations under the terms of the MSA. The trial judge,

after declining plaintiff's request for oral argument because it

would not "advance [his] understanding of the issues raised in the

motions," found that defendant's cohabitation

          was admitted to at the time of the [a]ddendum,
          thus its continued existence in and of itself
          is not a change in circumstances. Plaintiff
          does not allege there have been any financial
          changes in circumstances since the [a]ddendum.
          Thus [plaintiff] has failed to provide a prima
          facie showing of changed circumstances.[2]

     "Generally, the special jurisdiction and expertise of the

family court requires that we defer to factual determinations if

they are supported by adequate, substantial, and credible evidence

in the record."     Milne v. Goldenberg, 
428 N.J. Super. 184, 197

(App. Div. 2012).   "However, when reviewing legal conclusions, our



2
  The trial judge also granted defendant's cross-motion to deny
plaintiff's motion and to enforce the addendum "as it relates to
a reduction in alimony based on cohabitation."

                                    3                                A-5565-16T2
obligation is different; '[t]o the extent that the trial court's

decision constitutes a legal determination, we review it de novo.'"

Landers v. Landers, 
444 N.J. Super. 315, 319 (App. Div. 2016)

(alteration in original) (quoting D'Agostino v. Maldonado, 
216 N.J.      168,   182   (2013)).        Because    this    appeal     involves      the

interpretation of contracts – the MSA and addendum – our review

is   de    novo,   and   the   trial    judge    is    entitled    to    no   special

deference.       Kieffer v. Best Buy, 
205 N.J. 213, 222-23 (2011).

       The judge misapprehended that the change of circumstances

involved only defendant's cohabitation, failing to consider the

terms of the MSA that provided cohabitation "in a relationship

tantamount to marriage" triggered the "re-evaluation event."                         He

also erred by considering plaintiff's failure to allege financial

changes in circumstance; financial changes were of no moment,

especially in light of the express provisions of the MSA.

       Under     pre-amendment    case    law,3       modification      for   changed

circumstances must be based on "[t]he extent of actual economic


3
  We agree with the trial judge that "[t]he newly amended 
N.J.S.A.
2A:34-23(n) does not apply," an argument not raised on appeal.
The amendment does not modify "prior agreements executed or final
orders filed before [the] adoption of the statutory amendments."
Spangenberg v. Kolakowski, 
442 N.J. Super. 529, 538 (App. Div.
2015). Both agreements at issue were entered into prior to the
adoption of that amendment and explicitly contemplated defendant's
cohabitation.   See Mills v. Mills, 
447 N.J. Super. 78, 93 (Ch.
Div. 2016) (recognizing "[t]he amended alimony statute of


                                          4                                   A-5565-16T2
dependency, not one's conduct as a cohabitant."                   Gayet v. Gayet,


92 N.J. 149, 154 (1983).            But, "a specific consensual agreement

between the parties to terminate or reduce alimony based on a

predetermined change of circumstances does not require an inquiry

into    the   financial      circumstances       or    economic   status    of   the

dependent     spouse    so   long    as    the    provision   itself   is    fair."

Konzelman v. Konzelman, 
158 N.J. 185, 197 (1999).                    "Thus, where

the    parties   have   agreed      that   cohabitation       will   constitute     a

material changed circumstance, and that agreement has been judged

fair and equitable, the court should defer to the arrangements

undertaken by the parties" and "need not delve into the economic

needs of the former spouse."                   Ibid.    In considering alimony

modifications in these situations, our Supreme Court has directed

the trial courts to consider "[t]he ordinary understanding of

cohabitation," which is

              based on those factors that make the
              relationship close and enduring and requires
              more than a common residence, although that
              is an important factor. Cohabitation involves
              an intimate relationship in which the couple
              has undertaken duties and privileges that are
              commonly associated with marriage. These can
              include, but are not limited to, living
              together, intertwined finances such as joint
              bank accounts, sharing living expenses and

September 10, 2014, substantially departed from [then-existing
case law] on cohabitation by permitting the possibility of
termination or suspension of alimony even without proof of economic
interdependency").

                                           5                                A-5565-16T2
            household chores, and recognition of the
            relationship in the couple's social and family
            circle.

            [Id. at 202.]

      The addendum was entered with the parties' acknowledgment

"that    they   [were]    without    sufficient    knowledge      to     determine

whether     [defendant's]       cohabitation      would     be    temporary       or

permanent."         Defendant's      certification        in     opposition       to

plaintiff's motion admits as much.           By deeming the addendum "the

'evaluation' which the parties contemplated pursuant to" the MSA

and     establishing     that   as   the   baseline       from   which    changed

circumstances had to have been established, the trial judge ignored

the agreement – and the Konzelman Court's definition — that more

than a casual, perhaps temporary, cohabitation was needed to

precipitate a review of plaintiff's alimony obligations.4                 Indeed,

a short-term cohabitation is the type of temporary circumstance

for which modification requests have been consistently rejected.

Lepis v. Lepis, 
83 N.J. 139, 151 (1980).

      Plaintiff's      motion-supporting     certification        claimed      that

during her cohabitation for more than five years: defendant and

A.M. "have represented themselves to be . . . step-parents to each

other's children"; the parties' children consider A.M. "part of


4
  No provision of the addendum indicates an intention that it
supersede the settlement agreement.

                                       6                                   A-5565-16T2
their     family        unit";   "[d]efendant    has        shared   parental

responsibilities for [A.M.'s] daughter"; A.M. and his daughter

were named in defendant's mothers' obituary; and A.M. has spent

holidays and vacations with defendant and the children.                   These

claims established a prima facie case that the cohabitation was

"tantamount to marriage," entitling plaintiff an opportunity to

establish at a plenary hearing that the cohabitation is of the

nature contemplated by the MSA and that a re-evaluation of his

alimony and concomitant life insurance obligations is warranted.

      Contrary     to    defendant's   contention,     we    determine     that

plaintiff's requested termination – not modification — of alimony

sufficiently raised this matter at the trial level to warrant our

review.   Plaintiff's request for maximum relief does not mean that

any   other   "re-evaluation"     by   the   court   was    foreclosed.       We

determine the balance of defendant's contentions to be without

sufficient merit to warrant discussion here.           R. 2:11-3(e)(1)(E).

      In light of our decision, we need not consider plaintiff's

alternative argument that a plenary hearing was required to resolve

the addendum's ambiguity.          Our decision also renders moot the

trial judge's denial of oral argument.

      We therefore reverse the trial court's decision and remand

this matter for a plenary hearing following discovery.               We do not

retain jurisdiction.

                                       7                               A-5565-16T2
8   A-5565-16T2