On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County.
Pressler, Dreier and Brochin. The opinion of the court was delivered by Dreier, J.A.D. Brochin, J.A.D. (concurring).
Plaintiff appeals from a post-judgment matrimonial order, entered after a plenary hearing, denying his motion to suspend alimony payments because of defendant's alleged cohabitation with a male friend. Judge Grasso determined that the cohabitation clause in the parties' settlement agreement was unfair, inequitable and unenforceable, and thus refused to suspend plaintiff's alimony obligation. However, as the clause was a material aspect of the settlement agreement, the Judge decided that the agreement could now be renegotiated if plaintiff so desired.
The parties were divorced on November 13, 1991, and negotiated a settlement agreement which was incorporated into the final judgment of divorce. Under the agreement, defendant was to receive alimony in the amount of $400 a week, but the alimony payments would terminate upon the death of either party or upon defendant's remarriage, and would be suspended for any period during which defendant cohabited with an unrelated male. The cohabitation provisions read as follows:
Husband's alimony obligation shall be suspended during the period of cohabitation if the wife cohabits with a male unrelated to her by blood or marriage. Cohabitation for the purposes of this agreement, shall be defined as the wife and the unrelated male (hereinafter "male") generally residing together in a common residence, or residences where they generally engage in some, but not necessarily all, of the following:
(a) Meals taken together at the residence(s);
(b) Departing from and returning to the residence of the other for employment and/or social purposes;
(c) Maintaining clothing at the other's residence;
(d) Sleeping together at the residence or the residence of the other;
(e) Receiving telephone calls at the residence or the residence of the other.
The occurrence of any of the following shall not defeat cohabitation as the parties have defined that term herein:
(a) Temporary interruptions of the relationship shall not defeat a claim of cohabitation;
(b) Alternating of residences;
(c) Maintenance of a separate residence by the male.
The parties have expressly agreed that the purpose of this provision was specifically negotiated for, and represents the end product of, a bargained for
agreement. Specifically, the parties intend that the economic contribution component of Gayet shall not be applicable and the mere cohabitation, as defined herein, shall be the basis ...