On appeal from the Superior Court of New Jersey, Chancery Division, Mercer County, FM-11-727-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 2, 2008
Before Judges Messano and Chambers.
Defendant Joseph Jablonski appeals from the denial of his motion for reconsideration seeking to modify his alimony payments to plaintiff Laurie Larsen, his former wife.
The corrected final judgment of divorce entered on August 25, 2004, required Jablonski to pay Larsen $192 per week in permanent alimony. The judgment provided that this obligation would cease "upon either party's death, plaintiff's [Larsen's] remarriage or her co-habitation as defined and enforced at the time of application." In July 2005, Jablonski moved to terminate the alimony payments, contending that Larsen was cohabiting with her boyfriend, Marvin Ames.
At the hearing, testimony was taken from Jablonski, Larsen and Ames. Larsen's son was interviewed by the court in camera. The record indicates that Larsen had been dating Ames for over three years and that in 2004, she had moved into the house he owned and in which he had lived for the preceding twenty or so years. According to Larsen and Ames, he moved in with his mother who lived next door, and rented his house to Larsen for $1,500 a month, although he never received any rental payments from her. Ames' furnishings remained in the house after Larsen moved in. Ames also paid the water and sewer charges for the house, and had on one occasion made payments to secure Larsen's automobile from repossession. He also paid for a cruise vacation for her. Ames ate dinners regularly with Larsen and her son at the house, and spent the night with her a couple of times a week.
Applying the criteria in Konzelman v. Konzelman, 158 N.J. 185, 202 (1999), the trial court did not find that Larsen was cohabiting with Ames, stating:
While there is clearly evidence in this case that plaintiff and Mr. Ames have a close non-platonic relationship, nonetheless the evidence does not establish cohabitation as the law defines it . . . . There is no common residence, there are no joint intertwined finances, joint bank accounts, shared living expenses and chores and no evidence of recognition of the relationship as such in the couple's social and family circle.
However, the trial judge did find that plaintiff derived "a significant economic benefit from the relationship," noting that Larsen did not pay rent, sewer, or water charges on the property, and that Ames had paid for other expenses such as a cruise and the cost to redeem Larsen's car from repossession. Invoking Rule 4:9-2, the trial court proceeded to treat Jablonski's application as a motion to modify his alimony obligation based on changed circumstances.
In order to calculate an appropriate adjustment in the alimony payments, the trial judge required Larsen to submit further financial documentation. Upon receipt of these documents, the trial judge entered an order dated June 21, 2007, denying Jablonski's motion to modify the alimony payments. Appended to the order is the trial judge's detailed analysis of Larsen's financial circumstances explaining why she found no basis to modify the alimony payments made by Jablonski.
The trial judge then learned that the documents Larsen submitted to the court had not been submitted to defense counsel and as a result, the defense had no opportunity to analyze and comment on the financial documents submitted by Larsen. In light of this circumstance, the trial court entered an order dated June 29, 2007, requiring that the information provided to the court be given to the defense, and allowing Jablonski to make a motion for reconsideration upon review of that information. This was done.
However, by the time the motion for reconsideration was made, the trial judge had been assigned to the Appellate Division and thus was not available to hear it. The motion was heard by a different judge who denied the motion, ...