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Olito v. Olito


October 14, 2008


On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Monmouth County, Docket No. FM-13-1998-03D.

Per curiam.


Submitted September 24, 2008

Before Judges Parrillo and Messano.

Defendant Ian Olito appeals from the post-divorce order of the Family Part denying his motion for reduction of alimony and child support without prejudice. We affirm in part, reverse in part and remand the matter for further proceedings.

Briefly by way of background, plaintiff Lisa Olito and defendant were married on September 24, 1978, and their only child, Ryan, was born on April 1, 1990. The parties divorced on September 30, 2004. The final judgment incorporated their property settlement agreement (PSA), wherein the parties agreed to share joint legal custody of Ryan with primary residential custody entrusted to plaintiff. Defendant also agreed to pay $81 in weekly child support*fn1, a sum acknowledged not to be based on the Child Support Guidelines since the parties were unable to agree on defendant's correct income level at the time. The PSA also obligated defendant to pay $300 in weekly alimony based not on defendant's then current income, but the lifestyle the couple enjoyed while married. The PSA also provided that "Wife agrees and acknowledges that Husband's alimony obligation herein shall cease and terminate upon Wife's re-marriage or Wife's cohabitation as per New Jersey case law."

Soon after the divorce, defendant fell behind on his support payments and he was ordered on January 17, 2007 to pay $50 weekly towards arrears. Actually, a consent order of July 27, 2007, set the arrearage amount at $26,762.52. One month before, defendant had moved to decrease his support payments, citing a drastic reduction in income - $12,000 in 2006 and $25,000 as of June 2007; commencement of plaintiff's employment at $55,000 per year; and plaintiff's cohabitation with another woman. As to the latter, defendant alleged that plaintiff moved into a home in Freehold with a "female partner" in July 2006 and has lived there and shared rent with her ever since. He claimed they have "undertaken a way of life as a committed couple." In her cross-motion to enforce litigant's rights, plaintiff admitted that she currently rents a house with another woman, but denied any relationship -- intimate or otherwise -- other than a financial arrangement to split rent.

The matters were decided on the papers without benefit of oral argument. On October 16, 2007, the motion judge denied without prejudice defendant's request for support reduction but allowed him twelve weeks of child support credit for the period Ryan lived with defendant commencing February 14, 2007. In finding no change of circumstances to warrant a reduction in child support, the judge concluded:

The husband shows [$]12,000 income for 2006. Under paragraph 2 of the judgment of divorce the support was not in accordance with the guidelines, but was compromised due to inability to agree on husband's income level. There's no proof of prior income indicated -- there's no indication of the property settlement agreement as to the wife's income.

He has not made out a Lepis*fn2 change of circumstances because we don't know what his prior income was. And his $12,000 income that he shows is obviously not a realistic figure.

He shows $27,646 and then car and truck expenses which for child support guideline purposes and depreciation are not counted. So that would leave him -- those would be added back in, but the husband fails to show what how much of a change there was from his prior income to the present. And the fact that there was a problem with his, for tax purposes that indicates to this Court that his income level was somewhat nebulous back then.

As an additional reason for denying the motion to reduce alimony, the judge also found that defendant simply "ha[d] not made out a prima facie case of cohabitation under Gayet*fn3 and Garlinger*fn4 ." Defendant was subsequently ordered to pay arrearages in child support and alimony in the amount of $5,000 by December 1, 2007 and $650 in attorney fees within 10 days.

On appeal, defendant argues the court erred in not conducting a plenary hearing on plaintiff's alleged "cohabitation", and further failed to make findings of fact and conclusions of law on the issue.

Preliminarily, we note that this appeal is not from a final order inasmuch as the Family Part judge denied the requested relief without prejudice, R. 2:2-3(a)(1), inviting defendant in effect to make reapplication upon presentation of appropriate proofs. Nevertheless, for future guidance to the parties, we treat the appeal as a motion for leave to appeal, grant the motion nunc pro tunc, R. 2:4-4(b)(2), and remand the matter for further proceedings consistent with this opinion.

As noted, the motion judge found that defendant failed to establish a prima facie case of changed circumstances based on either defendant's alleged reduction in income or plaintiff's claimed cohabitation. With this much of the judge's reasoning we are in accord. As to the former, while defendant alleges a drastic decrease in earnings, he fails to provide any corroboration by way of tax returns or other financial documentation verifying his claim. Moreover, for comparative purposes, the record is lacking any competent proof of defendant's income at the time his support obligations were fixed in the PSA. In fact, the PSA specifically acknowledges defendant's support obligation was not based on income earned at that time, but rather on the couple's lifestyle during marriage. Thus, not only is there no documentary proof of present earnings, but as well no reliable evidence of past income by which we could intelligently gauge any change in financial circumstances on defendant's part.

The record on the cohabitation claim is no more developed, consisting only of conflicting certifications. Defendant simply characterizes plaintiff's present living arrangement as "cohabitation" under New Jersey law without more. Defendant, on the other hand, denies the arrangement is anything other than economic, namely to share the cost of the rent. Significantly, defendant's certification never claims an "intimate" relationship between plaintiff and her roommate, and refers only to plaintiff's "female partner." Based on the utter dearth of proof, the motion judge found "[t]here is no romantic relationship, there's no commingling of funds[,]" and consequently concluded defendant did not establish a prima facie case of cohabitation to warrant further exploration of the issue. We agree with this finding, as well.

Ordinarily, when conflicting certifications are sufficiently in dispute, a plenary hearing is necessary to determine the facts. Conforti v. Guliadis, 128 N.J. 318, 328-29 (1992); Palmieri v. Palmieri, 388 N.J. Super. 562, 564 (App. Div. 2006); Shaw v. Shaw, 138 N.J. Super. 436, 400 (App. Div. 1976). However, when alleging a change of circumstances, especially cohabitation, a party seeking modification of a support obligation must first establish a prima facie case before proceeding further to discovery and ultimately a plenary hearing. Lepis, supra, 83 N.J. at 157.

Here, the PSA did not define "cohabitation" other than by reference to the common law. On this score, the term "cohabitation" implies more than merely a common residence or a sexual relationship. We believe the ordinary definition of "cohabitation," describing a relationship of living together "as man and wife," connotes mutual assumption of the duties and obligations associated with marriage. To guide trial courts in applying this definition, we have formulated a list of factors to consider in determining whether a relationship constitutes cohabitation. We emphasize, however, that the list is non-exhaustive, and that no one factor serves as an absolute prerequisite for cohabitation. In interpreting "cohabitation," courts may consider indicia such as:

1. establishment of a common residence;

2. long-term intimate or romantic involvement;

3. shared assets or common bank accounts;

4. joint contribution to household expenses; and

5. recognition of the relationship by the community.

[Konzelman v. Konzelman, 307 N.J. Super. 150, 157-58 (App. Div. 1998) (citing Gordon v. Gordon, 342 Md. 294, 308-09 (Sup. Ct. 1996)).]

Thus, our courts view cohabitation as "tantamount to a marriage[,]" id. at 160, where the couple acts as a "family unit" and there is a relative permanency within the household. Gayet, supra, 92 N.J. at 155.

In the changed circumstance of cohabitation, modification is warranted when either the cohabitant contributes to the dependent spouse's support or lives with the dependent spouse without contributing. Garlinger, supra, 137 N.J. Super. at 64. In this regard, some courts have focused primarily on the economic relationship of the parties. The reduction in financial need is "the critical factor" in the analysis of alimony modification. Conlon v. Conlon, 335 N.J. Super. 638, 649-650 (Ch. Div. 2000). The test is whether one cohabitant "subsidizes" the other enough to warrant relief. Boardman v. Boardman, 314 N.J. Super. 340, 347 (App. Div. 1998). This would result in "some assemblage of a single economic unit." Pugh v. Pugh, 216 N.J. Super. 421, 425-426 (App. Div. 1987).

Irrespective of the primary focus, however, defendant has offered no evidence of either an "intimate" relationship or economic dependence. In fact, as to the former, defendant seems to acknowledge making no such claim. As to the latter, in the absence of any comparative data, defendant has simply failed to produce any proof that plaintiff's present living arrangement has reduced her financial need from that established in the PSA. Thus, the judge properly rejected the claim of cohabitation as a basis for ordering further discovery in the matter.

We part company with the motion judge, however, on the issue of whether plaintiff's subsequent employment constitutes a sufficient change of circumstance. In this regard, defendant certifies that plaintiff, who was not gainfully employed at the time of divorce, has since obtained employment with the Sunlite Group as an office manager at a yearly salary of $55,000. Significantly, plaintiff has not contradicted this assertion. Despite this seemingly undisputed fact, however, the judge never addressed the issue. The lack of any findings of fact or conclusions of law, of course, does a disservice to our informed review of the matter, Curtis v. Finnerman, 83 N.J. 563, 569-70 (App. Div. 1980), made even more difficult in the absence of oral argument below, see Raspantini v. Arocho, 364 N.J. Super. 528, 531 (App. Div. 2003), and any opposition to this appeal.

Clearly, courts have the continuing discretion to review and make decisions on alimony awards. Martindell v. Martindell, 21 N.J. 341, 357 (1956). Equally clear is that subsequent employment by the dependent spouse qualifies as a "changed circumstance" that may warrant modification of a support award. Lepis, supra, 83 N.J. at 131; see also Ramhorst v. Ramhorst, 138 N.J. Eq. 523 (E & A 1946); Kavanagh v. Kavanagh, 134 N.J. Eq. 358 (E & A 1944); Lavene v. Lavene, 162 N.J. Super. 187, 203 (Ch. Div. 1978). Here, as noted, the judge failed to make the appropriate findings whether plaintiff's subsequent employment reduced her economic need to warrant decreasing defendant's spousal support burden or in any way affected the parties' respective share of the child support obligation. In the absence of such findings on the record, we are constrained to remand for further proceedings on this limited issue, see Brewster v. Keystone Ins. Co., 238 N.J. Super. 580, 587 (App. Div. 1990); Tronolone v. Palmer, 224 N.J. Super. 92, 104 (App. Div. 1988); Girandola v. Borough of Allentown, 208 N.J. Super. 437, 440-41 (App. Div. 1986); State v. Singletary, 165 N.J. Super. 421, 424-25, (App. Div.), certif. denied, 81 N.J. 50, 404 (1979), at which time defendant may also present for consideration such other proofs as to his alleged reduction in income and/or plaintiff's alleged "cohabitation" as may suffice to warrant further examination of these additional grounds in support of his modification motion.

Affirmed in part; reversed in part and remanded for further proceedings consistent with this opinion.

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