On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County
Before Judges Baime, Brochin and Wefing
The opinion of the court was delivered by: Brochin, J.A.D.
Argued October 29, 1997 -
Plaintiff Kathleen Konzelman and defendant Lawrence Konzelman were married July 18, 1964 and divorced October 28, 1991. Their property settlement agreement, incorporated into their divorce judgment, required Mr. Konzelman to pay permanent alimony of $700 a week until his or his former wife's death, his wife's remarriage, or his wife's "[c]ohabitation . . . with an unrelated adult male for a period of four continuous months." Contending that the latter contingency had occurred, Mr. Konzelman stopped making alimony payments. Ms. Konzelman denied cohabitation and moved for the resumption of alimony. Because their children are emancipated adults, there is no issue of child support.
After extensive discovery and a bench trial that was conducted on thirteen separate dates between April 11 and July 13, 1994, the Judge found that Ms. Konzelman and an "unrelated adult male," Mr. Robert Liput, were continuously cohabiting within the meaning of the Konzelmans' property settlement agreement. The court ruled, however, that the provision of the Konzelmans' agreement which provided for termination of alimony in the event of cohabitation violated public policy and was therefore unenforceable under Melletz v. Melletz, 271 N.J. Super. 359 (App. Div.), certif. denied, 137 N.J. 307 (1994). After further discovery and another three-day bench trial in September 1995, the court found that Mr. Liput was contributing at least $170 a week to Ms. Konzelman's financial support and, pursuant to Gayet v. Gayet, 92 N.J. 149 (1983), the court reduced Mr. Konzelman's alimony obligation by that amount. The trial Judge denied the award of an attorney's fee to either party.
Mr. Konzelman has appealed and Ms. Konzelman has cross-appealed. He argues that the anti-cohabitation clause of their agreement is valid and should have been enforced as written. Alternatively, he contends that all alimony should have been discontinued because Ms. Konzelman failed to prove that neither she nor Mr. Liput contributed to the other's financial support. Ms. Konzelman argues that the court erred in finding that she and Mr. Liput were cohabiting and therefore her alimony should not have been reduced. Each of the parties complains about the court's denial of his or her application for an attorney's fee, and each asks this court to enter a favorable judgment without remanding the case to the trial court.
At the initial trial, Mr. Konzelman presented a private investigator who testified that he had conducted a surveillance of Ms. Konzelman's residence seven days a week for 127 continuous days. According to the investigator, on weekdays Mr. Liput would usually pick up the newspaper from the end of Ms. Konzelman's driveway at 7 a.m., get into his car, drive to work, return to the house in the late afternoon or evening, and remain in the house overnight. There were, however, obvious errors in the investigator's testimony and discrepancies between his field notes and his final report.
Nonetheless, Mr. Liput and Ms. Konzelman conceded that they had a close, exclusive, "romantic relationship," at least since approximately April or May 1990. Ms. Konzelman testified that during 1991, 1992, and 1993, she and Mr. Liput spent at least 30 weekends a year and some weekday nights together, either at her three-bedroom, ranch-style home in Wayne, New Jersey, or on vacation trips elsewhere. In 1993, they went on an eight-day ski vacation to Switzerland in February; from March 26 to the end of April, they skied together in Vail, Colorado; from May 25 to June 1, they traveled together in Germany; and they rented a condominium together at the Jersey shore from July 17 to July 24. In February 1994, they went skiing together in Italy. Ms. Konzelman testified she won the 1993 trip to Germany as a cash register prize at a supermarket; Mr. Liput paid for all of the expenses of their other vacations except some unidentified airplane tickets which were purchased with frequent flyer miles.Mr. Liput and Ms. Konzelman customarily spent holidays and other occasions in each other's company, together with other members of their families. In 1993, Mr. Liput and Ms. Konzelman had Easter dinner at Mr. Liput's cousin's house. They celebrated July 4th at a barbecue for twenty guests at Ms. Konzelman's home; Ms. Konzelman's mother, Mr. Liput's sister, and his sister's boyfriend were among the guests. They spent Christmas Eve at Mr. Liput's sister's house with other members of his family; they had Christmas dinner at Ms. Konzelman's home with her brother and his family, Ms. Konzelman's mother, and a few friends. They spent New Year's Eve and New Year's Day together. During 1993, there were a dozen visits of one or more of Mr. Liput's children to Ms. Konzelman's home. Mr. Liput's 19-year old son went skiing with them in Okemo, Vermont in January 1994. On Mother's Day 1994, Mr. Liput's mother was at Ms. Konzelman's house, and then she, Mr. Liput, and Ms. Konzelman went somewhere else for dinner. Ms. Konzelman accompanied Mr. Liput when he went to visit his son at a drug rehabilitation center in Pennsylvania, and she has been a spectator at some of the softball games in which Mr. Liput's team, the Ageless Wonders, was playing.
Ms. Konzelman's garage door can be opened by a remote door-opener. Mr. Liput keeps a door-opener for her garage in his car. Her home is protected by an alarm system which is armed or disarmed by entering codes from keypads in the house. He has the code for disarming the system. He keeps tools, his bicycle, and, some of the time, his skis in her garage, and some clothes and toilet articles in her house. Mr. Liput cuts the lawn at Ms. Konzelman's residence and does other gardening there. He also cleans the gutters and the above-ground swimming pool. He bought and paid for the pool. In the records of Mr. Liput's softball team, the telephone number for contacting him is Ms. Konzelman's number.
Throughout the trial on "cohabitation," Ms. Konzelman denied that she had a joint bank account with Mr. Liput. During the subsequent trial on their financial interdependence, they were shown to have a joint savings account. Ms. Konzelman claimed that the account was solely for the benefit of her mother, and that she and her brother, who lives in California, deposited money into the account for her mother's use. There was no evidence, however, that Ms. Konzelman's brother had ever deposited money into the account. The proofs showed that no money from the account had ever been used for the benefit of Ms. Konzelman's mother. But funds had been deposited and withdrawn by both Ms. Konzelman and Mr. Liput. One deposit slip written by Ms. Konzelman listed the depositor's address as her own and showed Mr. Liput as the depositor.
There was substantial evidence in the record to support the court's finding that Mr. Liput was contributing at least $170 a week toward Ms. Konzelman's financial support. Mr. Konzelman introduced evidence of the rental value of Ms. Konzelman's home, arguing that, because Mr. Liput paid no rent, she was supporting him to the extent of his share of its rental value, but the court found that the evidence of rental value was inadequate.
Mr. Liput denied that he was residing with Ms. Konzelman. He testified that his residence was a one-bedroom condominium in Kearny which he shared with his ill, elderly mother. He claimed that he slept in a pull-out sofa-bed in the living room of the apartment where, according to his testimony, he kept his clothing in two armoires and a bureau. His mother uses the living room closet to store her clothing.
The evidence shows that Mr. Liput did not contribute to the purchase of the condominium and that he was not contributing significantly to the expense of maintaining it. He knew only two of the residents of neighboring apartments and, when his pretrial deposition was taken, he did not know the number of his parking space. Ms. Konzelman testified that during the course of four years she had visited the Kearny apartment no more than four or five times. She did not know the number of the telephone in the apartment.
Mr. Liput's testimony that his real place of abode was his sick, elderly mother's one-bedroom condominium in Kearny tended to confirm rather than to refute the evidence that he was living with Ms. Konzelman in her home in Wayne. The trial court disbelieved his testimony. After acknowledging the flaws in the testimony of Mr. Konzelman's investigator and summarizing the other evidence, the court declared: [T]he other evidence which was adduced . . . indicates to me that the true nature of the relationship was one in which Lipit [sic] was at the Konzelman residence on a regular basis, that he resided there, that he left for work at that residence, that he engaged in extensive familial contact with Mrs. Konzelman involving her family and his family, that he ...