J.R. v. F.R

Annotate this Case

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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-3213-19

J.R.,1

Plaintiff-Respondent,

F.R.,

Defendant-Appellant.
________________________

Argued October 4, 2021 – Decided October 27, 2021

Before Judges Fasciale and Firko.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-1533-16.

Debra S. Weisberg argued the cause for appellant
(Donahue, Hagan, Klein & Weisberg, LLC, attorneys;
Debra S. Weisberg, of counsel and on the briefs;
Francis W. Donahue and Sandra Starr Uretsky, on the
briefs).

1
We use initials to identify the parties and third party to protect and preserve
the confidentiality of these proceedings. R. 1:38-3(d)(10).
Gary Newman argued the cause for respondent
(Newman, McDonough, Schofel & Giger, PC,
attorneys; Gary Newman and David Giannini, on the
brief).

PER CURIAM

In this post-judgment matrimonial matter, defendant F.R. appeals from

paragraph one of a March 6, 2020 Family Part order denying without prejudice

his motion seeking to be relieved of his alimony and related obligations based

on plaintiff J.R.'s alleged cohabitation with M.S. under N.J.S.A. 34-23(n).

Defendant contends he established a prima facie case of cohabitation warranting

discovery and a plenary hearing. We have considered these arguments in light

of the record, disagree, and affirm.

We derive the facts from the record. The parties were married on October

28, 1989, and divorced pursuant to a final judgment of divorce (FJOD) on

January 18, 2018. Plaintiff is now fifty-six years old, and defendant is fifty-nine

years old. During their nearly thirty-year marriage, they had three children—

A.R., who is emancipated; R.R., who was twenty-one years old and attending

college at the time of this proceeding; and I.R., who regrettably passed away in

2015 at the age of nineteen from a rare form of pediatric cancer. Approximately

three days after I.R.'s passing, on the second night of Shiva, the parties

A-3213-19
2
"separated." In order to "cope" with I.R.'s demise, defendant claims he was

prescribed medication and "drank alcohol while taking [his] medication" to

"try[] to numb the pain . . . ." Following an argument between plaintiff's brother

and A.R., plaintiff left the house with R.R. Defendant attempted to stop plaintiff

from leaving, and the antenna of her car broke off in his hand. The police were

called, defendant was arrested, and transported to a hospital. The next morning,

November 19, 2015, plaintiff obtained a temporary restraining order (TRO)

against defendant. According to defendant, the matter was heard and dismissed

approximately two months later. 2

On August 15, 2016, defendant retained Cyber Investigators, LLC (Cyber)

to conduct surveillance of plaintiff. Defendant claims on August 17, 2016, after

plaintiff and M.S. were at the parties' former marital home, M.S. texted plaintiff:

"given the situation we should reduce the frequency of our visits; however, this

does not change the way we feel about each other." On December 17, 2016,

Cyber commenced its investigation.

On March 20, 2017, plaintiff obtained a second TRO against defendant

and was granted a final restraining order (FRO) against him on July 5, 2017,

2
Neither party included the TRO orders or transcripts in their appendices.

A-3213-19
3
following a trial before a prior judge.3 M.S. accompanied plaintiff to the

domestic violence hearing. Plaintiff claims the prior judge found defendant had

an "unhealthy and dangerous obsession" with her, which defendant denies.

Because defendant made threats to M.S., such as "he knows [M.S.] has a

daughter and knows the route that she walks to and from high school . . . [and]

threats [to] 'cut[] his b. . . . off,'" and an incident when defendant followed M.S.

resulting in a 9-1-1 call, M.S. was listed as a protected party on the FRO.

Following the FRO trial, the parties negotiated a Support and Property

Settlement Agreement (PSA) through counsel and executed the document on

October 19, 2017. They agreed to delay their divorce until January 2018.

Defendant informed Cyber "there was a good possibility he and [plaintiff] were

going to reconcile and save their marriage." According to defendant, "he had

doubts" as to whether plaintiff would honor the PSA and "he suspected [she]

would continue her cohabitation with [M.S.] even though her breaking up with

[M.S.] and making a genuine effort at reconciliation was one of the key terms

of the agreement."

3
Neither party included transcripts of the domestic violence trial or the FRO in
their appendices.
A-3213-19
4
As part of their PSA incorporated in the FJOD, defendant agreed to pay

plaintiff a taxable "base alimony" of $100,000 annually, or $8,333.33 per month,

predicated on his former employment and earnings at Bloomberg, LLP of

$336,000 per year. In addition, the PSA sets forth a formula to compute future

alimony payments, but in essence defendant agreed to: (1) pay "bonus alimony"

of thirty-one percent of his annual gross bonus; (2) maintain his prior health

insurance through his former employer for plaintiff's benefit (COBRA coverage)

for three years following the entry of the FJOD or in the event alimony

terminates, whichever occurs first; and (3) maintain a $1,000,000 life insurance

policy on his life designating plaintiff as the beneficiary to secure the obligation.

Defendant now pays $68,310 annually in alimony, or $5,692.50 per month. 4 In

the PSA, plaintiff was imputed income of $35,000 per year and earns a modest

income from her business, Metropolitan Hair Group.

The PSA provides that plaintiff's alimony "shall irrevocably terminate and

cease" upon her death, her remarriage, or defendant's death. Article IV of the

PSA provides:

The payment of alimony by HUSBAND to WIFE
as set forth in Article II of this [a]greement shall be
subject to review upon any of the following events:

4
Defendant's current alimony obligation is based upon his gross annual income
of $242,000 along with an imputed income to plaintiff of $35,000.
A-3213-19
5
....

[(3)] WIFE's cohabitation as defined by New Jersey law
shall trigger a review to determine whether alimony
shall be terminated, irrevocably terminated, suspended
or modified (if modification is a remedy provided by
New Jersey law at the time an application is filed with
the [c]ourt).

In 2016, plaintiff met M.S. and certified that as of February 19, 2020, they

had been dating "for about three . . . years." Sometime in June 2016, defendant

discovered telephone calls made between plaintiff and M.S. Plaintiff explained

"[she] was going through . . . an inordinately difficult divorce and found

comfort, understanding and companionship with [M.S.]."

Although Cyber surveilled plaintiff and M.S. throughout their three-year

relationship, Cyber concentrated its investigation on the period following the

parties' divorce—October 20, 2018, through September 16, 2019.

In a report dated May 16, 2019, Cyber determined:

[I]t appears from their activity that they act as a family
unit[,] . . . . [which] would . . . be apparent to friends
and family during occasions such as holiday gatherings,
weddings, birthdays, etc. It appears from the
information developed that the couple go on many
vacations together, are involved in children's schools
and activities, attend synagogue events, attend
entertainment events, entertain friends and family at
[plaintiff's] home[,] . . . share household duties such as
grocery shopping, etc. . . . [M.S.'s] apartment in Verona
. . . appears to be necessary since his son attends high

A-3213-19
6
school there. However, we have gathered significant
evidence showing [M.S.] spends consistent time at
[plaintiff's] home in Mahwah . . . where he pulls into
the driveway, opens the automatic garage door and
parks/hides his car in the garage overnight and at other
times.

Cyber concluded "[b]ased on the information developed over the course of the

investigation, it is our opinion that a prima [facie] case exists that [M.S.] and

[plaintiff] are cohabitating."

On January 17, 2020, defendant filed a notice of motion to terminate his

alimony, life insurance, and health insurance obligations benefitting plaintiff,

retroactive to June 2018. Defendant also sought reimbursement from plaintiff

for monies he previously paid for life and health insurance premiums, to

emancipate R.R., and requested counsel fees and costs. This aspect of

defendant's motion is not raised on appeal. In his twenty-page moving

certification, defendant proffered the observations, report, and photographs of

David Murphy, who conducted the investigation of plaintiff on behalf of Cyber.

Murphy detailed "the specific days and times" he observed M.S.'s vehicle in the

driveway at plaintiff's Mahwah home, "using the garage door remote" to gain

access to her residence, and bringing groceries to her on "ten . . . occasions"

spanning six months.

A-3213-19
7
Defendant further maintained that plaintiff and M.S.: (1) spend major

holidays together, such as Thanksgiving and Rosh Hashana, at the homes of

relatives and friends; (2) attend various community events together, including

events sponsored by the Montebello Jewish Center; (3) took a trip together to

Israel in November 2019; (4) visited A.R.'s house and attended his engagement

party; (5) attend family and other weddings; (6) hosted parties; (7) shopped for

furniture together; (8) vacationed together; and (9) accompanied R.R. to college

for a parents' weekend. In his certification, defendant emphasized that plaintiff

and M.S. "have been very careful in not leaving any evidence on social media"

but "hold themselves out as husband and wife to the community" as evidenced

by postings of plaintiff's friends on Facebook. Defendant contends plaintiff is

unequivocally cohabitating with M.S.

Plaintiff filed a notice of cross-motion seeking to deny defendant's motion

to terminate alimony and for the other stated relief, and she requested counsel

fees and costs. In her cross-moving and opposing certification, plaintiff denied

defendant's allegations as "preposterous" and "inapposite" to his assertion that

her relationship with M.S. is "open and notorious." Plaintiff recounted the

extensive domestic violence trial and the judge's finding that defendant was

"incredible."

A-3213-19
8
Plaintiff certified she is "not cohabiting with [M.S.] and [has] not at any

time" and M.S. is not her life partner. Their families and close friends are aware

they are dating, but plaintiff certified her religious group does not consider M.S.

to be in a marriage type relationship with her, and a member of the group

suggested she date another member who is single. She denied having any

intertwined finances, joint holdings, or liabilities with M.S. and confirmed that

M.S. lives with his sixteen-year-old son in Verona and shares fifty/fifty custody

with his ex-wife. M.S. has "no clothes or toiletries at [her] house," and does not

have a key or the code to enter through the garage. They do not share vehicles

but occasionally ride in the same vehicle.

Plaintiff clarified she and M.S. "vacationed together" in Nashville,

Boulder, Florida, Seattle/Portland, and Cape Cod, but she went to the Republic

of Georgia without him. As to their relationship, plaintiff certified she "confided

in [M.S.'s] sister that [she] was [']uncertain['] whether [the] relationship" would

continue. Plaintiff stated she has "a full and complete life outside of [M.S.]"

and gave examples, such as attending Al-A-Non meetings, Mah Jong classes,

sailing club meetings, yoga, and gathering with friends to play Trivia. M.S.'s

dog is kept at his home in Verona.

A-3213-19
9
On average, plaintiff averred she sees M.S. "about [two] evenings a

month" and they "have no plans to marry or to live together . . . ." Procedurally,

plaintiff also contended that defendant breached the PSA by not first attempting

to resolve the issues amicably, and his motion was deficient under Rule 5:5-

4(a)(4)5 because prior case information statements (CIS) and a current CIS were

not included with his application. On February 26, 2020, defendant filed a reply

certification.

On March 6, 2020, the judge heard argument and rendered a

comprehensive oral opinion that day. The judge analyzed defendant's motion

by applying the New Jersey alimony statute's enumerated factors: 6

Factor one, intertwined finances: [d]efendant presents
no real evidence that plaintiff and [M.S.] had
intertwined finances. He speculates that their finances
are intertwined because they attend events and
vacations together. And [a] past surveillance photo
show[s] [M.S.] bringing groceries to defendant's
home. . . .

5 Rule 5:5-4(a)(4) states "[T]he movant shall append copies of the movant's
current [CIS] and the movant's [CIS] previously executed or filed in connection
with the order, judgment or agreement sought to be modified."
6
The six factors are: (1) intertwined finances; (2) shared living expenses; (3)
recognition of the relationship in the couple's social and family circle; (4)
frequency of contact and duration of relationship; (5) shared household chores;
(6) enforceable promises of support; and (7) all other relevant evidence.
N.J.S.A. 21:34-23(n).
A-3213-19
10
Factor two, sharing or joint responsibilities for living
expenses: [a]gain, defendant presents no real evidence
that [plaintiff] and [M.S.] have shared responsibilities
for living expenses. Defendant relies on the photos
taken by his private investigator. . . . [W]hat is
undeniable is that [plaintiff and M.S.] have separate
residences. . . .

[F]actor three, recognition of the relationship in the
couple's social and media circle. Defendant presents
the [c]ourt with some social media evidence suggesting
that the plaintiff's relationship is recognized in their
social and family circle. It does appear that they attend
holidays together and that [M.S.] has assisted the
plaintiff's children with important events in their lives.
Plaintiff acknowledges as much, quite candidly. . . . All
this is undisputed and is relevant to the [c]ourt's
analysis.

Factor four, living together, the frequency of contact,
the duration of the relationship and other indicia of a
mutually supported interpersonal relationship:
[p]laintiff . . . acknowledges that she and [M.S.] ha[ve]
been in a relationship for three years. It does appear to
be a committed relationship. . . . [T]hey go on vacations
together. They spend some holidays together. [M.S.]
does occasionally spend nights over the plaintiff's
home. But, again, there is no evidence that the parties
are living together on a full-time basis. They do
maintain separate households.

Factor five, sharing household chores. Defendant has
no real proof that plaintiff and [M.S.] regularly share
household chores. . . . There may be some evidence of
them grocery shopping and . . . some other isolated
assistance around the home, but nothing systemic and
nothing that really rises to the level of the definition of

A-3213-19
11
cohabitation as contemplated by the statute and case
law.

[F]actor six[,] . . . whether the recipient of alimony has
received an enforceable promise of support. . . . [H]ere,
there is no indication that plaintiff is the recipient of
any enforceable promise from [M.S.].

[I]n light of the above, this [c]ourt finds that the
defendant has not presented sufficient credible
evidence to establish a prima facie showing of
cohabitation under N.J.S.A. [2A:34-23(n)]. . . .

....

[F]rom the [c]ourt's perspective, all the defendant has
really demonstrated [is] that [plaintiff and M.S.] are in
a dating relationship, . . . a committed relationship.

The judge denied defendant's motion to terminate alimony based upon

cohabitation without prejudice and denied both parties' requests for counsel fees

and costs. This appeal followed.

On appeal, defendant argues:

(1) the judge's failure to accept credible evidence of
cohabitation and deny a prima facie case of
cohabitation warranting discovery was a mistaken
exercise of judicial discretion and error of law based
solely on separate households; and

(2) the judge abused his discretion in failing to order
discovery and schedule a plenary hearing based on the
material facts in dispute.

A-3213-19
12
II.

We first consider the well-settled principles that guide our review.

Alimony is an economic right, which "arises out of the marital relationship and

provides the dependent spouse with 'a level of support and standard of living

generally commensurate with the quality of economic life that existed during

the marriage.'" Quinn v. Quinn, 225 N.J. 34, 48 (2016) (quoting Mani v. Mani,

183 N.J. 70, 80 (2005)). "The basic purpose of alimony is the continuation of

the standard of living enjoyed by the parties prior to their separation." Innes v.

Innes, 117 N.J. 496, 503 (1990) (citing Mahoney v. Mahoney, 91 N.J. 488, 501-

02 (1982)). Thus, alimony "permit[s] [a] [dependent] spouse to share in the

accumulated marital assets to which he or she contributed." Konzelman v.

Konzelman, 158 N.J. 185, 195 (1999) (citing Mahoney, 91 N.J. at 500-01).

Alimony "may be revised and altered by the court from time to time as

circumstances may require." N.J.S.A. 2A:34-23. To make such a modification,

a showing of "changed circumstances" is required. Lepis v. Lepis, 83 N.J. 139,

146 (1980); see Weishaus v. Weishaus, 180 N.J. 131, 140-41 (2004) (citations

omitted). In Landau v. Landau, 461 N.J. Super. 107, 108 (App. Div. 2019), we

held that "the changed circumstances standard of [Lepis] continues to apply to

a motion to suspend or terminate alimony based on cohabitation following the

A-3213-19
13
2014 amendments to the alimony statute, N.J.S.A. 2A:34-23(n)." Those

amendments defined cohabitation as "involv[ing] 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." N.J.S.A. 2A:34- -23(n).

To determine whether there is a prima facie showing of changed circumstances,

the court must consider the terms of the order at issue and compare the facts as

they existed when the order was entered with the facts at the time of the motion.

See, e.g., Faucett v. Vasquez, 411 N.J. Super. 108, 129 (App. Div. 2009).

A prima facie showing of cohabitation constitutes sufficient changed

circumstances under Lepis. Gayet v. Gayet, 92 N.J. 149, 154-55 (1983).

Cohabitation has been defined as "an intimate relationship in which the couple

has undertaken duties and privileges that are commonly associated with

marriage." Konzelman, 158 N.J. at 202. Where a supporting spouse seeks to

decrease or terminate alimony because of the dependent spouse's cohabitation,

"the test for modification of alimony is whether the relationship has reduced the

financial needs of the dependent former spouse." Gayet, 92 N.J. at 149-150.

Alimony may be modified "when (1) the third party contributes to the dependent

A-3213-19
14
spouse's support, or (2) the third party resides in the dependent spouse's home

without contributing anything toward the household expenses." Id. at 153.

"[A] showing of cohabitation creates a rebuttable presumption of changed

circumstances shifting the burden to the dependent spouse to show that there is

no actual economic benefit to the spouse or the cohabitant." Reese v. Weis, 430 N.J. Super. 552, 570 (App. Div. 2013) (quoting Ozolins v. Ozolins, 308 N.J.

Super. 243, 248 (App. Div. 1998)). The court must focus on the cohabitant's

economic relationship to discern "whether one . . . 'subsidizes the other.'" Id. at

571 (quoting Boardman v. Boardman, 314 N.J. Super. 340, 347 (App. Div.

1998)). Whether this economic benefit exists requires a fact-intensive inquiry

by the trial judge. Id. at 576.

Our scope of review of the trial court's decision is limited. "Whether an

alimony obligation should be modified based upon a claim of changed

circumstances rests within a Family Part judge's sound discretion." Larbig v.

Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (citations omitted). Each

individual motion for modification is particularized to the facts of that case, and

"the appellate court must give due recognition to the wide discretion which our

law rightly affords to the trial judges who deal with these matters." Ibid.

A-3213-19
15
(quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)). We will not disturb

the trial court's decision on alimony unless we:

conclude that the trial court clearly abused its
discretion, failed to consider all of the controlling legal
principles, or must otherwise be well satisfied that the
findings were mistaken or that the determination could
not reasonably have been reached on sufficient credible
evidence present in the record after considering the
proofs as a whole.

[Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div.
1996) (citing Rolnick v. Rolnick, 262 N.J. Super. 343,
360 (App. Div. 1993)).]

Prior to the Legislature's adoption of the 2014 amendments, the legal

criteria for cohabitation were not specified by statute but instead embodied in

case law. See, e.g., Konzelman, 158 N.J. at 195-203. As the Supreme Court

explained in Konzelman, cohabitation is typified by the existence of a marriage-

like relationship "shown to have stability, permanency[,] and mutual

interdependence." Id. at 202; see also Reese, 430 N.J. Super. at 570 (similarly

noting that "[c]ohabitation involves an 'intimate[,]' 'close and enduring'

relationship, requiring 'more than a common residence' or mere sexual liaison"

(second alteration in original) (quoting Konzelman, 158 N.J. at 202)).

Although "living together, intertwined finances such as joint bank

accounts, sharing living expenses and household chores, and recognition of the

A-3213-19
16
relationship in the couple's social and family circle" may support a finding of

cohabitation, such illustrative examples must not be considered in a vacuum.

Konzelman, 158 N.J. at 202. "A mere romantic, casual[,] or social relationship

is not sufficient to justify the enforcement of a settlement agreement provision

terminating alimony[,]" nor is simply sharing "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." Ibid.

In 2014, the Legislature addressed cohabitation in subsection (n) of

N.J.S.A. 2A:34-23. That provision sets forth the following considerations that

bear upon cohabitation issues:

n. 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;

A-3213-19
17
(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 [ N.J.S.A.] 25:1-
5; and

(7) All other relevant evidence.

In evaluating whether cohabitation is occurring and
whether alimony should be suspended or terminated,
the court shall also consider the length of the
relationship. A court may not find an absence of
cohabitation solely on grounds that the couple does not
live together on a full-time basis.

After carefully reviewing the amendments, "we [saw] no indication the

Legislature evinced any intention to alter the Lepis changed circumstances

paradigm when it defined cohabitation and enumerated the factors a court is to

consider in determining 'whether cohabitation is occurring' . . . ." Landau, 461 N.J. Super. at 116 (quoting N.J.S.A. 2A:34-23(n)). We determined the party

seeking modification still bears the burden of establishing "[a] prima facie

showing of changed circumstances . . . before a court will order discovery of an

A-3213-19
18
ex-spouse's financial status." Id. at 118 (alteration in original) (quoting Lepis,

83 N.J. at 157).

We recently held that evidence of all seven factors enumerated in N.J.S.A.

2A:34-23(n) is not required for the moving party "to establish a prima facie

[showing] of cohabitation." Temple v. Temple, ___ N.J. Super. ___, ___ (App.

Div. 2021) (slip. op. at 5). Nor does the statute contain all factors the trial court

may consider when reviewing whether cohabitation exists. See id. at ___ (slip

op. at 5-6). ("[T]he statute does not contain the alpha and omega of what

ultimately [may] persuade a court that a[n] [ex-]spouse is cohabiting.").

The moving party satisfies its prima facie burden when the party has

presented enough evidence for the "trier of fact [to] conclude the [dependent]

spouse and another are in 'a mutually supportive, intimate personal relationship'

in which they have 'undertaken duties and privileges that are commonly

associated with marriage or civil union.'" Id. at ___ (slip op. at 7) (emphasis

added) (quoting N.J.S.A. 2A:34-23(n)).

Thus, an appellate court should not disturb the Family Part judge's

determination, unless the appellate court concludes: (1) the trial court failed to

consider all the required cohabitation factors listed under N.J.S.A. 2A:34-23(n),

see id. at ___ (slip op. at 5) ("To be clear . . . the Legislature mandates a court's

A-3213-19
19
consideration of [all] factors in ultimately determining whether cohabitation is

or has been occurring."); 7 (2) the trial court failed to grant defendant the benefit

of all reasonable inferences in determining whether the facts support no other

conclusion than cohabitation, see id. at ___ (slip op. at 3-4) (holding the moving

party is "entitled to an assumption of the truth of [its'] allegations and the benefit

of all reasonable inferences to be drawn from the evidence . . . marshaled"); or

(3) the trial court's conclusion "could not reasonably have been reached . . . after

considering the [evidence] as a whole." Heinl, 287 N.J. Super. at 345.

Here, the parties themselves voluntarily entered into the PSA. 8 The

agreement "outlined the circumstances that will terminate the alimony

obligation." Quinn, 225 N.J. at 50. "The payment of alimony by [defendant] to

[plaintiff] as set forth [in] this [a]greement shall be subject to review upon . . .

[plaintiff]'s cohabitation as defined by New Jersey law[,] [which] shall trigger a

review to determine whether alimony shall be terminated, irrevocably

terminated, suspended[,] or modified." Therefore, the judge was required to

enforce the agreement "to terminate alimony upon cohabitation, even if

7
Here, no party has alleged the trial court failed to consider all the required
factors.
8
Although defendant claims he was tricked into entering the alimony provision
on the premise that the purpose of said PSA was to reconcile the marriage, he
did not move to invalidate the alimony terms.
A-3213-19
20
cohabitation does not result in any changed financial circumstances." Quinn,

225 N.J. at 50 (citing Konzelman, 158 N.J. at 197).

Here, defendant has the burden of establishing a prima facie showing of

cohabitation. Landau, 461 N.J. Super. at 118 (citing Lepis, 83 N.J. at 157). To

establish a prima facie showing of cohabitation, the moving party is required to

produce enough evidence "[s]ufficient to . . . raise a presumption [of

cohabitation] unless disproved or rebutted." Prima facie, Black's Law

Dictionary 1209 (7th ed. 1999).

The moving party is "entitled to an assumption of the truth of his

allegations and the benefit of all reasonable inferences to be drawn from the

evidence he had marshaled." Temple, ___ N.J. Super. at ___ (slip op. at 3-4)

(emphasis added). However, conclusory allegations will be disregarded. Lepis,

83 N.J. at 159. The judge may rely on the supporting documents and affidavits

of the parties, ibid., but the judge cannot decide the dispute on the papers

"[w]hen presented with competing certifications that create a genuine dispute

[of] material fact[]." Temple, ___ N.J. Super. at ___ (slip op. at 4) (emphasis

added); see also Lepis, 83 N.J. at 159 ("[A] party must clearly demonstrate the

existence of a genuine issue as to a material fact before a hearing is necessary.");

A-3213-19
21
Material fact, Black's Law Dictionary 611 (7th ed. 1999) (defining a material

fact as "[a] fact that is significant or essential to the issue or matter at hand").

We recognize that a prima facie showing of cohabitation may be difficult

to establish. Landau, 461 N.J. Super. at 118 (citing Konzelman, 158 N.J. at 191-

92). "[R]eadily available evidence is often 'consistent with either a dating

relationship or a cohabitation relationship.'" Ibid. (quoting Konzelman, 158 N.J.

at 191-92). However, the difficulty of the moving party to establish a prima

facie showing "cannot justify . . . invasion of [the ex-spouse’s] privacy." Ibid.;

see also Quinn, 225 N.J. at 54-55 ("There are few exercises more intrusive than

. . . an inquiry [which] reveals a vast amount of personal information about the

daily life of the [dependent] spouse that is of no concern to the [supporting]

spouse."). The judge "should be careful not to permit a fishing expedition into

a supported spouse's private affairs on a weak claim." Temple, ___ N.J. Super.

at ___ (slip op. at 15).

As such, although in weighing the parties' sworn statements the moving

party is "entitled to an assumption of the truth of his allegations and the benefit

of all reasonable inferences to be drawn from the evidence [it] ha[s] marshaled,"

id. at ___ (slip op. at 3-4), discovery is only warranted "[w]hen the facts support

no conclusion other than that the relationship has all the hallmarks of a

A-3213-19
22
marriage." Quinn, 225 N.J. at 54. A mere romantic relationship between an ex-

spouse and another, "characterized by regular meetings, participation in

mutually appreciated activities, and some overnight stays in the home of one or

the other, [does not] rise[] to the level of cohabitation. . . . [T]his level of control

over a former spouse would be unwarranted." Ibid.

In Temple, where the trial judge held, without a hearing or factual

findings, that the supporting spouse had failed to establish a prima facie showing

of cohabitation, we reversed and concluded the supporting spouse had in fact

established a prima facie showing of cohabitation and raised a genuine factual

dispute regarding the relationship of the dependent spouse and her boyfriend of

fourteen years. ___ N.J. Super. at ___ (slip op. at 16-7). We noted that the

judge had "mistakenly weighed the parties' competing sworn statements and

accepted as true [the dependent spouse's] explanation of the facts," while

ignoring the abundance of evidence presented by the supporting spouse. Id. at

___ (slip op. at 3). In our decision, we noted the supporting spouse:

[H]a[d] shown, based on . . . social media[,] . . . the way
[the couple] presented in public, as well as information
from family members, that [the couple] are now or have
in the past resided together, that they have had a
fourteen-year relationship, that they have traveled
together extensively, and that there are other "indicia of
mutually supportive intimate personal relationship."

A-3213-19
23
....

[N]ot being privy to the[] [couple's] financial
arrangements and circumstances beyond what an
outsider may see without unlawfully prying . . . decided
to hire a private investigator.

This investigation produced considerable evidence of
cohabitation or perhaps even a marriage. Specifically,
in numerous social media posts over the span of the past
seven years, [the boyfriend] referred to [dependent
spouse] as "my wife."

....

[H]e and [dependent spouse] traveled and participated
in events extensively.

....

[S]pent a considerable amount of time with [each other]
at his . . . home . . . .

....

[and] he has resided in [her] . . . apartment.

[Defendant] produced photos obtained by his private
investigator that depict [dependent spouse] engaging in
household responsibilities, such as bringing groceries
into [the] home, performing other household shopping
trips, and retrieving and opening mail. [She] is seen in
these photographs using a key or entering the . . .
residence through the garage keypad access code.

....

A-3213-19
24
In opposing [supporting spouse's] motion, [dependent
spouse] filed a certification in which she attempted to
refute or explain all the information he presented.

[Id. at ___ (slip op. at 8-14).]

Although there may have been non-cohabitation explanations, we noted the only

question for the judge to consider was whether the supporting spouse "presented

enough [evidence] to entitle him to discovery and an evidentiary hearing." Id.

at ___ (slip op. at 14).

Here, in contrast to Temple, where the judge had "mistakenly weighed the

parties’ competing sworn statements and accepted as true [the dependent

spouse's] explanation of the facts," while ignoring the abundance of evidence

presented by the supporting spouse, id. at ___ (slip op. at 3), the judge did not

abuse his discretion in weighing the credibility of the parties' sworn statements.

Firstly, the judge entertained oral argument on the motions. Secondly, the judge

did not ignore an abundance of evidence.

In Temple, the supporting spouse had provided: information from family

members; numerous social media posts spanning seven years in which the

boyfriend referred to the dependent spouse as "my wife;" traveled and

participated in events extensively; spent considerable time with each other at

their homes; and produced many photos depicting household responsibilities,

A-3213-19
25
such as bringing groceries in, performing other household shopping trips,

retrieving and opening mail, and using a key or entering the residence through

the garage keycode access pad. Id. at ___ (slip op. at 9-13).

Contrariwise, defendant in the matter under review provided no third-

party affidavit or certification of friends or family; submitted only one social

media post not made by the couple; 9 and simply produced a few photos depicting

the occasional household responsibilities. The judge highlighted "[d]efendant

has no real proof that plaintiff and [M.S.] regularly share household chores. . . .

There may be some evidence of them grocery shopping and . . . some other

isolated assistance around the home, but nothing systemic." Both parties largely

rely on their certifications, for which defendant was entitled to an assumption of

the truth and the benefit of all reasonable inferences. Temple, ___ N.J. Super.

at ___ (slip op. at 3-4). However, the reasonableness of defendant's allegations

is afforded to the judge, "who deal[s] with these matters.” Larbig, 384 N.J.

Super. at 21 (quoting Martindell, 21 N.J. at 355).

9
Elana Kaplan, leader of Jewish Women's Renaissance Project, captioned a
photo of the couples who went on the November 2019 trip to Israel, "Wonderful
morning learning and meeting all of the Bergen Momentum men's trip
participants and their spouses."
A-3213-19
26
We disagree with defendant's assertion that he demonstrated

cohabitation—that plaintiff and M.S. were in a "mutually supportive, intimate

personal relationship in which a couple has undertaken duties and privileges that

are commonly associated with marriage[,]" N.J.S.A. 2A:34-23(n)—based solely

on the documents filed by both sides. Moreover, the judge found that plaintiff

and M.S. spend time together but maintain separate residences. The judge's

finding was based upon substantial credible evidence in the motion record and

did not warrant further discovery. Therefore, we discern no abuse of discretion

and defendant's motion was properly denied without prejudice.

III.

As to defendant's second argument, since he failed to establish a prima

facie showing of cohabitation, he is not entitled to discovery or a plenary

hearing. Landau, 461 N.J. Super. at 119 (citing Lepis, 83 N.J. at 157). We

conclude that the remaining arguments—to the extent we have not addressed

them—lacked sufficient merit to warrant any further discussion in a written

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

Affirmed.

A-3213-19
27

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.