November 14, 2007
CYNTHIA BLUE N/K/A CYNTHIA MUZZI, PLAINTIFF-RESPONDENT,
KYLE BLUE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-428-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 23, 2007
Before Judges Fuentes and Grall.
Defendant Kyle Blue appeals from a post-judgment order reducing his obligation to pay alimony to plaintiff Cynthia Blue. He contends that the trial judge erred in not terminating his alimony obligation. In the alternative, he argues that the court erred by applying an arbitrary formula to determine the amount of the reduction rather than entering an order compelling discovery and scheduling a plenary hearing. We conclude that the parties should have been directed to comply with Rule 5:5-4(a) and to provide relevant discovery before any decision on the amount of alimony was made. For that reason, we reverse and remand.
The parties were married on November 22, 1992. They have two children. The first was born in 1992 and the second in 1995. They were divorced on May 22, 2006. Their final judgment of divorce incorporates a property settlement agreement.
The judgment, which does not address cohabitation, includes the following agreements. The children are to reside primarily with plaintiff. Defendant is to pay alimony in the amount of $300 per week and child support in the amount of $183 per week. Support is based on husband's earnings of $1538 per week and wife's imputed income of $450 per week. Plaintiff's share of the proceeds from the sale of the marital residence, which was under contract for sale at the time of the judgment, amounted to approximately $97,500.
Defendant filed this motion to terminate alimony on November 13, 2006.*fn1 There is no dispute that plaintiff is involved in another relationship and that she and the children have lived with her companion since the marital residence was sold in May 2006.
Plaintiff contended that the change in her circumstances did not warrant termination or modification of alimony. According to the certification she submitted on the motion, her living arrangement is temporary. Beyond asserting that she was "still looking for other places to which [she] and the children may move," plaintiff did not describe her plans for establishing a residence of her own. She further explained that she and her companion share expenses as follows: they divide the $1400 rent; he pays the gas and electric bills; she pays the cable and phone bills, and they split the bills for food and other incidentals.
Defendant contended that plaintiff's cohabitation during the many months between the sale of the marital residence and his motion for modification of support established that her relationship was not temporary and that her arrangement for sharing expenses with her companion warranted termination of alimony. He sought termination or modification of alimony retroactive to the date of the judgment. He acknowledged that a termination or modification of alimony would require reconsideration of child support.
At oral argument on the motion, the attorneys for both parties indicated a preference for a decision based on the papers submitted. The record provided on appeal does not include Case Information Statements provided by either party and nothing in the record indicates that either party submitted prior or current Case Information Statements. See R. 5:5-4(a); Gulya v. Gulya, 251 N.J. Super. 250, 253-54 (App. Div. 1991).
The judge found that plaintiff and her companion "divide the monthly household expenses equally" and concluded "[t]his effectively reduces [plaintiff's] economic need." Based on these admissions, the judge concluded that plaintiff had not rebutted the presumption of changed circumstances based on her cohabitation. The judge further concluded that her admissions "confirm[ed] that no issue of material fact exist[ed] to necessitate a [plenary] hearing." Reasoning that "spousal support can be allocated 38% for Schedule A shelter expenses, 37% Schedule B transportation expenses, and 25% Schedule C [p]ersonal expenses under the child support guidelines," the judge allocated the $300 weekly alimony amount in accordance with that formula, concluded that plaintiff's companion contributed fifty percent of her shelter and personal expenses and reduced defendant's alimony obligation from $300 to $220 per week. The judge then recalculated defendant's child support obligation to adjust for the reduction in alimony and increased child support from $183 to $202 per week.
Defendant filed a notice of appeal.*fn2
Defendant's motion for modification of alimony was deficient because he did not include as exhibits either the Case Information Statements previously filed or a current Case Information Statement. In pertinent part, Rule 5:5-4(a) provides:
When a motion is brought for the modification of an order or judgment for alimony or child support, the pleading filed in support of the motion shall have appended to it a copy of the prior Case Information Statement or Statements filed before entry of the order or judgment sought to be modified and a copy of a current Case Information Statement.
A party cannot refuse to provide the information required by the Rule, and it is appropriate for a judge to insist upon compliance. See Zazzo v. Zazzo, 245 N.J. Super. 124, 128-29 (App. Div. 1990) (discussing the requirement and interpretation of the Rule in the context of a motion to modify child support), certif. denied, 126 N.J. 321 (1991). The Rule's "mandate is not just window dressing. It is, on the contrary, a way for the trial judge to get a complete picture of the finances of the movants in a modification case." Gulya, supra, 251 N.J. Super. at 253-54 (discussing the importance of the requirement in the context of a motion to modify alimony and child support). As this case demonstrates, the information required by Rule 5:5-4(a) is critical even when the changed circumstance alleged is cohabitation.
The law on modification of alimony based on the supported spouse's cohabitation is well-settled. Where the parties have not provided otherwise by agreement, alimony may be modified based on "changed circumstances resulting from cohabitation only if one cohabitant supports or subsidizes the other under circumstances sufficient to entitle the supporting spouse to relief." Gayet v. Gayet, 92 N.J. 149, 153-54 (1983). There is no need for additional explanation beyond the clear statement provided in Ozolins v. Ozolins, 308 N.J. Super. 243, 248-49 (App. Div. 1998):
An alimony award is subject to modification when there has been a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 148 (1980). Among the changed circumstances to be considered by trial courts is "the dependent spouse's cohabitation with another . . . ." Id. at 151. However, although cohabitation by a supported spouse may constitute changed circumstances justifying discovery and an evidentiary hearing, modification is called for when "(1) the [cohabitant] contributes to the dependent spouse's support, or (2) the [cohabitant] resides in the dependent spouse's home without contributing anything toward the household expenses." Gayet[, supra], 92 N.J. [at] 153 (citing Garlinger v. Garlinger, 137 N.J. Super. 56, 64 (App. Div. 1975)).
There is a rebuttable presumption of changed circumstances arising upon a prima facie showing of cohabitation. The burden of proof, which is ordinarily on the party seeking modification, shifts to the dependent spouse. . . .
Finally, [when] the amount of alimony . . . was set originally by the parties themselves[, the judge must consider that fact]. Such an agreement ordinarily entails trade-offs between the parties. . . . [T]he judge may consider such trade-offs and equitable distribution as a factor in determining alimony modification. Lepis, supra, 83 N.J. at 145-55. [Citations to the Atlantic Reporter omitted.]
We do not suggest that the task of a judge faced with a question of modification based on cohabitation is simple. We simply stress that the governing procedures and standards are clear.
In this case there is no question that defendant established a prima facie case for modification of alimony based on cohabitation. Indeed, plaintiff does not cross-appeal from that determination.
Upon a showing of cohabitation, the burden of proof shifted to plaintiff to establish that no modification or a modification in an amount less than the alimony award was appropriate based on the extent of the economic benefit she enjoyed as a consequence of sharing expenses with her companion. Preparatory to meeting that burden, she should have been required to provide a complete current Case Information Statement. See Lepis, supra, 83 N.J. at 157-58 (discussing discovery after prima facie showing of changed circumstances); Gulya, supra, 251 N.J. Super. at 253-54 (noting that when both parties seek modification, both must supply complete information from the outset).
The difficulty in this case is that the judge proceeded to determine the amount of the appropriate reduction without requiring the discovery and exchange of Case Information Statements contemplated by Rule 5:5-4(a) and Lepis. There was no sound basis for the decision rendered. There is no logical connection between the relative percentages of a child support award attributable to shelter and personal expenses and this defendant's admissions about her current financial arrangements. Accordingly, application of the formula employed was improper. The parties should have been directed to provide appropriate discovery and proceed to a hearing if necessary to resolve any disputed facts.
The order is reversed and the matter is remanded for further proceedings consistent with this decision and prior decisions of our courts.