On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-062-96.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Grall.
Plaintiff Peter Viglione appeals from an order of the Family Part denying a motion to terminate his alimony obligation based on defendant Dianne Viglione's cohabitation. After a plenary hearing, the court denied relief on the ground that plaintiff did not establish cohabitation warranting termination or modification of alimony. The court's conclusion rests on a misunderstanding of the controlling precedents. See Ozolins v. Ozolins, 308 N.J. Super. 243, 245 (App. Div. 1998) (discussing the shifting burden of proof when a supporting spouse alleges changed circumstances based on cohabitation). Accordingly, we reverse and remand for further proceedings. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
The Vigliones married in June 1973. They have two children. Their daughter Alicia was born in 1978, and their son Peter was born in 1981. In July 1993, plaintiff filed a complaint for divorce. A final judgment incorporating plaintiff's agreement to pay rehabilitative alimony in the amount of $40,000 for a term of eight years was entered in 1995. The agreement makes no provision for modification of alimony upon a showing of cohabitation, other than to provide for the question to be addressed in accordance with the law. After the term for rehabilitative alimony expired, permanent alimony was ordered as a consequence of post-judgment litigation. Plaintiff is now required to pay permanent alimony of $20,000 per year and defendant's real estate tax. In 2006, the total obligation was $32,000. This court affirmed the order modifying plaintiff's alimony obligation in March 2006, Viglione v. Viglione, A-4096-03 (App. Div. Mar. 1, 2006), and plaintiff filed the motion to terminate alimony in June of that year.
At the time of their parents' divorce, the Vigliones' children lived with their father and visited their mother. Both Peter and Alicia were emancipated by the time of the plenary hearing.
Plaintiff called Peter and Alicia to testify about their observations of defendant's living arrangements. He also presented testimony from Vincent Beck, his sister's husband, and a private investigator. Plaintiff, defendant and her friend Joseph Semprivivo also testified.
Plaintiff commenced an investigation of defendant's living arrangements after Beck told him about a conversation he had had with Peter. Peter mentioned that his mother was recovering from surgery and Semprivivo was living with her and helping her. Beck, who lived near defendant, also told plaintiff that he had driven by the house and seen a car with New York plates parked in defendant's driveway. At plaintiff's request, Beck made further observations. He took photographs of the car on April 2, 3, 4 and 7, 2006. The pictures were taken in the morning, afternoon and evening.
Peter, who testified that he regretted his conversation with Beck and being drawn into his parents' dispute, testified under subpoena. After his parents' divorce, he visited defendant once or twice a week but did not stay in her home overnight. He saw Semprivivo during ninety-five to one hundred percent of those visits. He saw Semprivivo come downstairs in the morning and saw clothes that he kept in defendant's house. At times defendant and Semprivivo acted as if they were a couple, and at other times they did not. Alicia visited her mother less frequently; Semprivivo was there sometimes.
After Alicia was emancipated she lived with her mother between late November 2004 and February 2005. Semprivivo was living with defendant during that time. He had clothes in the laundry room and in a closet upstairs and an office in defendant's basement. He took out the garbage and brought home groceries. While Alicia never saw Semprivivo sleeping, she saw him come downstairs in the morning.
Plaintiff's investigator Fred Welsh took photographs of cars parked in defendant's driveway on nine days in April and ten days in May 2006. One of the two cars had New York license plates registered to Semprivivo at an address in Amsterdam, New York. The residence in Amsterdam was formerly owned by Semprivivo's son, but he sold the house in September 2003.
Semprivivo has a business that is registered with the New Jersey Department of Treasury, Division of Revenue. The registration provides the same address for Semprivivo and the business. That address is for a leased mailbox in a UPS store located within one-half mile of defendant's home. Department records reflect that the registration was initially filed on August 15, 2003; the business registration was active on April 21, 2006. The business phone number is for a line in defendant's home. Semprivivo's driver's license, tax returns and bank statements all show the UPS mailbox as his address.
According to defendant and Semprivivo they never lived together. There were only two occasions when Semprivivo stayed with defendant for an extended period of time - a three-week period beginning in December 2004 when his son was expecting houseguests and could not accommodate him and a ...