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Blue v. Blue

November 14, 2007

CYNTHIA BLUE N/K/A CYNTHIA MUZZI, PLAINTIFF-RESPONDENT,
v.
KYLE BLUE, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-428-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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