STEPHEN KOWAL v. RANDI HARTMAN

NOT FOR PUBLICATION WITHOUT THE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-4923-18

STEPHEN KOWAL,

          Plaintiff-Respondent,

v.

RANDI HARTMAN, f/k/a
RANDI KOWAL,

          Defendant-Appellant.


                   Argued December 9, 2021 – Decided December 20, 2021

                   Before Judges Haas and Mawla.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Mercer County,
                   Docket No. FM-11-0444-04.

                   John A. Patti argued the cause for appellant (Patti
                   Family Law, attorneys; John A. Patti, on the briefs).

                   Seth D. Josephson argued the cause for respondent.

PER CURIAM
      Defendant Randi Hartman appeals from a June 3, 2019 order terminating

plaintiff Stephen Kowal's alimony obligation. We affirm.

      The parties were divorced in 2005, following a twenty-five-year marriage.

They entered into a Property Settlement Agreement (PSA) wherein plaintiff

agreed to pay $400 per week in permanent alimony based on earnings of

approximately $110,000 per year and imputed income to defendant of $35,000

per year. The PSA stated the alimony range was between $575 and $600 per

week, but the parties agreed to $400 because plaintiff did not seek child support.

The PSA contained the following relevant provision:

            Cohabitation by [defendant] shall be an event
            subjecting alimony to a review consistent with existing
            case law.       [Plaintiff's i]nvoluntary [l]oss of
            [e]mployment, other than temporary, shall be an event
            subjecting alimony to a review consistent with existing
            case law. In the event [plaintiff] is permanently
            disabled, as defined and to the extent payable by his
            disability insurance policy, it shall be an event
            subjecting alimony to review, recalculation derived
            only from proceeds from said disability insurance
            policy.

            [Emphasis added.]

      In 2008, plaintiff moved to modify alimony because he ceased working

and became permanently disabled. The court found he made a prima facie




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showing of changed circumstances and scheduled a plenary hearing. However,

plaintiff withdrew the motion.

      In 2011, defendant moved for entry of a qualified domestic relations order

(QDRO) dividing plaintiff's pension, alleging she was entitled to equitable

distribution. She also sought an increase in alimony and other financial relief

based on plaintiff's alleged increased income. Plaintiff opposed the motion.

      The court granted defendant's motion, ordered the QDRO, and increased

alimony.   Plaintiff sought reconsideration and provided proof the pension

benefits were an ordinary disability retirement allowance and not a pension

payout and that the allowance did not vest during the marriage. He also argued

the parties agreed only plaintiff's disability insurance proceeds could be used to

calculate alimony. Defendant disputed plaintiff's claims and income.

      The trial court reconsidered, denied equitable distribution of the pension,

and directed the parties to file updated Case Information Statements (CIS) to

recalculate alimony. Plaintiff submitted a CIS; defendant did not. The court

calculated alimony in accordance with the PSA, using only the disability policy

proceeds, and reduced alimony to $655.21 per month.            Defendant sought

reconsideration, which the court denied on January 20, 2012.




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      Defendant appealed from the alimony provisions of the 2012 order. We

denied her challenge and affirmed the trial court's calculation of alimony,

holding "the terms of the PSA limited plaintiff's income to his disability

insurance proceeds." Kowal v. Hartman, No. A-2618-11 (App. Div. Feb. 10,

2014) (slip op. at 10-11).

      In 2016, plaintiff moved to modify or terminate alimony on grounds of

cohabitation.   He attached social media postings showing defendant had a

romantic relationship and cohabited with Daniel Opielski beginning in March

2015. Plaintiff alleged Opielski paid defendant's living expenses, which reduced

defendant's need for alimony. Plaintiff's CIS showed his only sources of income

were disability insurance and the ordinary disability retirement pension. The

trial judge found plaintiff established a prima facie case of cohabitation and

scheduled a plenary hearing.

      On November 14, 2016, the judge granted plaintiff's motion in limine to

ensure only his disability insurance was considered. The judge cited our prior

decision.

      In a 2017 plenary hearing, the judge heard testimony from the parties,

Opielski, and defendant's mother.     He also reviewed seventy-six pieces of




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evidence. The judge rendered a detailed written opinion finding the witnesses

were credible, except for defendant and Opielski.

      The judge noted defendant stipulated to cohabiting with Opielski. He also

found other credible evidence of cohabitation, namely, the social media posts in

which defendant and Opielski held themselves out as a couple in an "exclusive

. . . stable, persistent, and permanent" relationship.     He found defendant

benefitted from the cohabitation because it "substantially reduc[ed] her shelter

costs[,]" and significantly increased her account balances. 1 He noted that on

cross-examination, "defendant acknowledged that the benefits to her from living

with . . . Opielski exceeded $2,700 per month, including eliminated mortgage

payments and homeowner association dues, utility bills, repair and maintenance,

and other lesser home maintenance costs." The judge noted even if the deposits

to defendant's accounts were excluded, "defendant still benefits from

cohabitation by more than $1,700 per month."         The judge found Opielski

benefitted economically from the cohabitation because defendant contributed

her income to his shelter expenses.




1
  The judge noted there were unidentified deposits to defendant's accounts that
plaintiff did not prove came from Opielski, but that defendant had not identified
the source of the funds either.
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      The judge concluded the economic benefit to defendant from the

cohabitation was three to four times the alimony paid by plaintiff. He terminated

alimony effective March 2015, the date defendant began living with Opielski,

and ordered defendant to repay alimony she received since that date at $100 per

month.

      Defendant alleged plaintiff committed fraud by concealing the fact his

disability insurance proceeds were tax-free. She argued the court was required

to "retroactively reverse the financial hardships that have been thrust upon

[defendant] in the form of [o]rders[] misinterpret[ing] . . . the [PSA] . . . and

intentional concealment of information that should have been provided to

[the c]ourt and other [c]ourts going back [to] 2008."

      The judge analyzed defendant's claims through the lens of Rule 4:50-1(f).

He noted it was undisputed the parties voluntarily entered into the PSA over

fourteen years ago and that it was heavily negotiated with the assistance of

counsel. The judge also noted the PSA disability provision, which limited a

recalculation of alimony based solely on the disability insurance policy

"proceeds."   He found "[t]he agreement did not envision or require the

calculation of a taxable value, as the policy is not subject to taxation" because

the PSA's use of the term proceeds meant "the amount of money received from


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the policy[,]" which would be a net figure. The judge concluded plaintiff did

not conceal the nontaxable nature of the policy because neither his benefits

statements nor his tax returns reported the insurance proceeds as taxable income .

Moreover, "defendant never argued in this matter['s] entire history . . . that the

term ['proceeds'] meant anything other than the amount received from plaintiff's

disability pension." He further noted this "novel argument emerged during this

round of litigation" but was "nowhere" in the pleadings she filed prior to the

plenary hearing.

      The judge also noted plaintiff was declared "permanently disabled within

the terms of his disability insurance policy, an event accounted for in the parties'

agreement." Citing the prior litigation history, he concluded "the court modified

plaintiff's alimony obligation in light of a change of circumstances and denied

defendant's motion for reconsideration, and the Appellate Division affirmed the

court in all respects." He noted defendant challenged the taxable nature of

plaintiff's income during "[t]he parties' 2011 motion practice[,]" and that

defendant "pursued her right of appeal, and she lost." The judge concluded the

PSA's terms were fair and defendant's arguments were barred by res judicata.

      Each party requested counsel fees.        The judge conducted a detailed

analysis of Rule 5:3-5(c) factors and concluded each should bear their own fees.


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Defendant raises the following points on appeal:

      I.   THE COURT COMMITTED REVERSIBLE
      ERROR    BARRING    EVIDENCE   ON  THE
      INTRODUCTION OF PLAINTIFF'S INCOME,
      INCLUDING PENSION INCOME OTHER THAN
      HIS DISABILITY INSURANCE PROCEEDS.

      II. THE PSA PROVISIONS REGARDING USE OF
      ONLY DISABILITY INCOME SHOULD BE SET
      ASIDE BASED UPON THE FACT THAT THE
      PENSION WAS NOT DISTRIBUTED AND
      PLAINTIFF RECEIVES PENSION INCOME.

      III. THE COURT ABUSED ITS DISCRETION BY
      FAILING TO ADJUST THE AMOUNT OF
      ALIMONY PURSUANT TO OZOLINS V. OZOLINS,
       308 N.J. SUPER. 243 ([APP. DIV.] 1998).

      IV. THE COURT ABUSED ITS DECRETION BY
      NOT CONSIDERING ALL SOURCES OF INCOME
      AND RECALCULATING ALIMONY PRIOR TO
      FORMULATING      THE     COHABITATION
      DEDUCTION AND RETROACTIVE ARREARS.

      V.  ALIMONY SHOULD BE REESTABLISHED
      AT THE RATE AGREED TO IN THE PSA.

      VI. THE SUPERIOR COURT ABUSED ITS
      DISCRETION BY NOT FINDING A VIOLATION
      PURSUANT TO NEW JERSEY COURT RULE
      4:50-1.

      VII. DEFENDANT IS ENTITLED TO RELIEF
      BASED UPON THE CONCEALMENT BY
      PLAINTIFF ON THE CIS AND ADMITTED TO BY
      PLAINTIFF DURING THE PLENARY HEARING.


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              VIII. COUNSEL FEES SHOULD HAVE BEEN
              AWARDED BASED UPON THE INTENTIONAL
              CONCEALMENT BY PLAINTIFF.

              IX. COSTS AND ATTORNEY FEES SHOULD BE
              AWARDED TO DEFENDANT FOR ALL COST[S]
              OF THIS APPEAL.

      "Our review of the trial court's evidential rulings 'is limited to examining

the decision for abuse of discretion.'" Ehrlich v. Sorokin,  451 N.J. Super. 119,

128 (App. Div. 2017) (quoting Parker v. Poole,  440 N.J. Super. 7, 16 (App. Div.

2015)). We apply the same standard of review to in limine motions adjudicating

the admissibility of evidence. State v. Cordero,  438 N.J. Super. 472, 483 (App.

Div. 2014).

      We defer to a trial judge's factfinding "when supported by adequate,

substantial, credible evidence." Cesare v. Cesare,  154 N.J. 394, 411-12 (1998)

(citing Rova Farms Resort, Inc. v. Invs. Ins. Co.,  65 N.J. 474, 484 (1974)).

However, "legal conclusions, and the application of those conclusions to the

facts, are subject to our plenary review." Reese v. Weis,  430 N.J. Super. 552,

568 (App. Div. 2013) (citing Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan,  140 N.J. 366, 378 (1995)).

      The Family Part has "special jurisdiction and expertise in family matters,"

which often requires the exercise of reasoned discretion. Cesare, 154 N.J. at


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413. For these reasons, Family Part judges have broad discretion to make

alimony determinations. Martindell v. Martindell,  21 N.J. 341, 355 (1956).

Counsel fee determinations are also discretionary. Barr v. Barr,  418 N.J. Super.
 18, 46 (App. Div. 2011). Likewise, the denial of a Rule 4:50-1 motion for relief

from judgment will not be disturbed absent a clear abuse of discretion. In re

Guardianship of J.N.H.,  172 N.J. 440, 473 (2002).

      Having thoroughly reviewed the record pursuant to these principles, we

affirm for the reasons expressed in the trial judge's thorough and well-written

opinion. We add the following comments.

      "Alimony is an economic right that 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) (internal quotation marks

omitted) (quoting Mani v. Mani,  183 N.J. 70, 80 (2005)). The Quinn Court

stated mutually agreed upon arrangements that are "fair and definitive . . . should

not be unnecessarily or lightly disturbed" because

            "the law grants particular leniency to agreements made
            in the domestic arena" and vests "judges greater
            discretion when interpreting such agreements."
            Pacifico [v. Pacifico,  190 N.J. 258, 266 (2007)]. . . .
            Nevertheless, the court must discern and implement
            "the common intention of the parties[,]" Tessmar [v.

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            Grosner,  23 N.J. 193, 201 (1957)], and "enforce [the
            mutual agreement] as written[,]" Kampf [v. Franklin
            Life Ins. Co.,  33 N.J. 36, 43 (1960)].

            [Quinn,  225 N.J. at 44-46 (second, fourth, and fifth
            alterations in original).]

      We reject defendant's arguments. The facts, evidence, and circumstances

did not support deviating from the parties' clearly worded agreement. Only the

disability insurance proceeds could be considered for alimony purposes. This

conclusion was underscored by the fact the cohabitation was clearly proven and

showed defendant's lifestyle with Opielski was enhanced to the point it

exponentially exceeded the alimony, which defendant no longer needed.

Defendant's remaining arguments lack sufficient merit to warrant discussion in

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

      Affirmed.




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