December 10, 2007
RALPH FERRARA, PLAINTIFF-APPELLANT,
JOY SEVASTAKIS (F/K/A FERRARA), DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Ocean County, Docket No. FM-15-743-05-S.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 15, 2007
Before Judges Axelrad, Sapp-Peterson and Messano.
Plaintiff Ralph Ferrara appeals from the Family Part's February 23, 2007 order denying his request for the following relief: (1) modifying the sixty-month alimony obligation established in the parties' April 11, 2005 Property Settlement Agreement (PSA) due to defendant and her boyfriend's purported cohabitation; (2) appointing a replacement counselor for the parties' ten and thirteen-year-old children; (3) using the parenting coordinator's services only in case of emergency; and (4) awarding him counsel fees. We affirm.
The parties' PSA contains the following provision with respect to cohabitation by wife:
a. If Husband files an application to modify or terminate his alimony obligation based upon an assertion that Wife is cohabiting with an unrelated person, the parties have agreed that as to the issue of cohabitation, any application for modification or termination based upon cohabitation shall be determined under Gayet v. Gayet, 92 N.J. 149 (1983) and Garlinger v. Garlinger, 137 N.J. Super. 56 (App. Div. 1975), and their progeny requiring the proof of economic interdependency at the relevant time in this matter.
This is appellant's second unsuccessful attempt to terminate his alimony obligation on this basis. As Judge Pogarsky noted, both motions contained similar allegations as to defendant's relationship with her boyfriend and their purported cohabitation. Appellant claimed defendant and her boyfriend spent many nights together, had gym memberships together, babysat each other's children, vacationed together with their families, dined together, and shared holidays together. This time appellant also submitted a report from a private investigator who had conducted video surveillance of defendant and her boyfriend's homes for a sixteen-day period in July 2006, about six months prior to the filing of the motion. The report contained information about which cars were parked in the driveway or in the nearby vicinity between 5:30 a.m. and 8:00 a.m. Based, in part, on the assumption that defendant was at her boyfriend's home when no car was found in her driveway, appellant contended the surveillance report demonstrated that defendant and her boyfriend spent six out of the ten nights together.
Defendant submitted a certification in response, noting that for ten of the sixteen days reported in the surveillance there was no finding that she and her boyfriend were even at each other's home. She rebutted plaintiff's assumption that if there was no car in her driveway she was at her boyfriend's, explaining that she parks her car in her garage. Defendant admitted that she and her boyfriend "spend an occasional overnight" at each other's home but denied they lived together or spent the amount of time together alleged by plaintiff. She categorized their relationship as a typical boyfriend/girlfriend dating relationship where they go out to dinner, vacation together, and spend some time with their children together, but they had no plans for marriage. Defendant denied any economic contribution or economic interdependency between her boyfriend and herself. She further certified that her boyfriend did not make any contribution towards her mortgage, utilities or essential expenses of her home, nor did he pay for any other expenses, other than an occasional meal. She attached a copy of a reimbursement check she wrote to her boyfriend for her share of one vacation and a checking account statement and hotel bill showing she paid for one-half of another trip. She also attached her checks evidencing payment for a swimming pool that was installed at her home.
In denying plaintiff's motion, Judge Pogarsky stated:
The Court finds that the Plaintiff has failed to meet his burden to warrant terminating his alimony application. More specifically, the Court finds that the Plaintiff has failed to provide proof of "economic interdependency" between the Defendant and her boyfriend, as required by Gayet vs Gayet, 92 N.J. 149 (1983) and Garlinger v Garlinger, 137 N.J. Super 56 (App. Div. 1975). Modification is appropriate when, "(1) the third party contributes to the dependent spouses's support, or (2) the third party resides in the dependent spouses's home without contributing anything toward the household expenses." Gayet at 153, citing Garlinger at 64. What this essentially amounts to is a substantial change in the financial circumstances of the payee spouse. Lepis v. Lepis, 83 N.J. 139 (1980).
The Court finds that the Plaintiff essentially repeats the allegations set forth in support of his previous Motion regarding the Defendant's relationship with her boyfriend, Mr. Urban. Now, however, the Plaintiff has presented the Court with a private investigators report as additional evidence in support of his claim that the Defendant is cohabitating with Mr. Urban.
The Court finds that the report submitted by the Defendant is vague and does not supply sufficient evidence for this Court to terminate his alimony obligation. The Court finds that the report includes surveillance conducted on sixteen (16) different dates, only six (6) of which show Mr. Urban at the Defendant's residence. Based upon a reading of the report, the Court can only conclude that Mr. Urban was at the Defendant's residence on multiple occasions. The Plaintiff's assertions and a vague private investigator's report do not meet the Plaintiff's burden to establish cohabitation under the relevant case law. Further, the Defendant has contested the allegations of the Plaintiff and she has certified that Mr.
Urban does not financially support her in any way. Based upon the foregoing, the Plaintiff's request to terminate his alimony obligation is hereby denied.
Appellant argues his allegations, coupled with the investigator's report, demonstrated sufficient evidence of cohabitation within the liberal definition of Konzelman v. Konzelman, 158 N.J. 185, 202 (1999), thereby entitling him to an exchange of discovery and a plenary hearing. He contends the burden would then shift to defendant to show a lack of economic interdependence resulting from the cohabitation. Appellant urges that enforcement of the alimony provisions should be held in abeyance pending remand and completion of the plenary hearing by the trial court.
We are not persuaded by appellant's arguments, particularly his assertion that the Family Part judge misapplied the law in declining to find he met the initial threshold of cohabitation under Konzelman. The judge properly applied the requirements of the PSA and the law to the facts of this case in concluding appellant failed to establish a prima facie case of cohabitation such that defendant and her boyfriend were living in a marital-like relationship that altered her economic condition. The private investigator's report was vague and inconclusive on the issue of cohabitation. This case was a far cry from Konzelman, where the private investigator observed the cohabitants for 127 days, during the morning and evenings, noting the dependent spouse's paramour used the garage code to enter and leave her home, parked his car there, regularly picked up the newspaper, answered the door, and did yard work and many of the household chores; or Gayet, where the finding of cohabitation was based on an extensive period of admitted cohabitation. Konzelman, supra, 158 N.J. at 191-92; Gayet, supra, 92 N.J. at 149-150. Here, even accepting appellant's interpretation of the private investigator's report that defendant and her boyfriend spent six out of ten nights together from July 11 to July 20, 2006, and defendant's acknowledgement that she is involved in a dating relationship with her boyfriend that also includes an occasional overnight visit at one another's house, appellant's proofs presented with his motion fall woefully short of meeting his burden of proving the initial threshold of cohabitation to require any further action on his application.
We note that appellant has abandoned his request to replace Dr. Knust as the children's counselor but now claims he is entitled to written reports regarding the children's counseling pursuant to the March 3, 2006 order, and that he has never been consulted as to the children's continued therapy. The March 3 order entitles appellant, as joint legal custodian, "to receive information and or reports as to the status and progress of the children," and to have "equal access to the children's medical records." The order does not require Dr. Knust to supply written reports; the language can be read to encompass oral communication, whether in person or by telephone. Appellant's certification to the trial court harped on the fact that he was not provided any written report regarding his children's visits as a basis for seeking to replace the counselor but he did not provide any indication of attempts he had made to speak with Dr. Knust by telephone, e-mail or in person about his children. In its February 23, 2007 order, the court found that "[p]laintiff's assertions that he is prohibited from gaining access to the children's therapy records are without merit" and, as a joint legal custodian of the children, he can "contact the therapist and secure whatever information he is seeking." We are satisfied the trial court appropriately addressed the matter before it and that appellant has failed to demonstrate non-compliance with the March 3, 2006 order.
The balance of the arguments raised by appellant are without sufficient merit to warrant additional discussion. R. 2:11-3(e)(1)(E).
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