On appeal from the Superior Court, Chancery Division -- Family Part, Burlington County.
Pressler, Gaulkin and Baime. The opinion of the court was delivered by Gaulkin, J.A.D.
Plaintiff and defendant entered into a property settlement agreement, thereafter incorporated into a divorce judgment, which provides:
19. The defendant shall have exclusive possession of the marital home. The said marital home shall be sold upon the occurrence of one of the following events, whichever event shall first occur:
a. The minor child, Stephen B. Pugh, graduates high school;
b. The defendant remarries;
c. The defendant lives with a non-related adult male.
Seventeen months after the divorce, plaintiff moved to sell the marital home on the ground that defendant was then living with "a non-related adult male." Following a plenary hearing, the motion judge found "that there is a living together within the meaning of the property settlement agreement" and that plaintiff "is entitled to insist upon the sale of the former marital home." Defendant appeals from the order thereupon entered.
We have no difficulty in accepting the motion judge's findings of operative fact. He found that plaintiff had observed one or both of Gerald Parker's two vehicles at the marital home "whenever he has gone past the house or when he has picked up the children for visitation, be it late at night or early in the morning." Parker was also observed performing chores around the house, such as cutting the grass, and was seen late at night unloading band equipment from defendant's van.
Defendant acknowledged that Parker spends three out of four weekends of the month with her, usually bringing his daughter with him; she also said that on occasion Parker brings a change of clothing. The motion judge further found that Parker has his meals with defendant and her family when he is at the house and that he "showers at the home and also shaves at the home during the weekends that he is there." The proofs showed that "despite the fact that [Parker] eats his meals there and has the use of the facilities at least three nights -- two or three nights a week, that other than having purchased the riding mower, he makes no other contributions."
The judge also reported his interview of the parties' son Stephen, then 14 years old. Stephen told the judge that "there was some clothes there, not much," that Parker "stays there nearly each weekend" and that he also "stays there on other occasions, as much as one night a week." While Parker would occasionally "miss that one night a week," ...