October 14, 2008
PETER VIGLIONE, PLAINTIFF-APPELLANT,
DIANNE VIGLIONE, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 9, 2008
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 period of several months in 2006 when defendant was recovering from surgery.
Defendant and Semprivivo gave consistent accounts of their relationship. They met in 1993 and dated in 1994 and 1995. When he moved to Amsterdam, New York in 1995, they remained friends and visited one another. During that period, when Semprivivo came to New Jersey he stayed with defendant for a day or two at a time, and she sometimes visited him in New York.
In June or July 2003, Semprivivo left Amsterdam and moved to his son's home in Greenwood Lake, New York. After that move, Semprivivo saw defendant more frequently.
In summer 2005, Semprivivo started to operate his business from defendant's home. He used a fax machine, telephone and computer that defendant allowed him to keep in her basement. He stayed overnight approximately six nights a month but otherwise commuted to the basement office from his son's home in Greenwood Lake. When he left Greenwood Lake at 5:30 a.m., he reached defendant's home by 6:00 a.m. He acknowledged that his bank statements, telephone bills, tax returns and driver's license show the UPS mailbox near defendant's home as his address. Defendant and Semprivivo explained that he used the UPS mailbox because it is conveniently located between the homes of his two sons and near the home of a "very good" friend.
Semprivivo did not pay defendant for the use of her residence or contribute to her support, but he did purchase groceries, cook special meals and help defendant with her dog. Over the years, he had been with defendant on holidays, her birthday and the children's birthdays. He recalled buying an appliance for defendant's house as a joint gift from either him and defendant's children or him and her mother.
Semprivivo admitted that in recent months he was spending less time at defendant's home due to plaintiff's investigation. Since that controversy, he had been remaining on the "sidelines" and keeping a "low profile" to avoid exacerbating defendant's problems. In October 2006, he moved his business to his son's home, where there was now room to accommodate it because of his son's recent divorce. He asserted that his arrangement to have his business in defendant's home was always "temporary."
The trial court viewed the question presented as whether there were "sufficient facts to make a finding that [defendant] is cohabiting with Mr. Semprivivo in a type of relationship that warrants a reduction or elimination of alimony." In addition, the court evaluated the adequacy of the evidence under the assumption that plaintiff had the burden of "convincing [the] court in a satisfactory manner that his former wife is in a relationship with Mr. Semprivivo, such that, her economic circumstances have changed, warranting a change or elimination of his alimony obligation." Although the court found "a lot of what Mr. Semprivivo said to the court to be quite incredible," the court discounted the significance of his use of the UPS mailbox as his address on the ground that the question before the court was the existence of the "type of relationship . . . that warrants a reduction of alimony" and not the correctness of Semprivivo's conduct. The court denied plaintiff's application, because the "[t]he entire economic side of the picture [was] missing" and there was inadequate evidence of the necessary "'close and sustained' relationship." See Konzelman v. Konzelman, 158 N.J. 185, 202 (1999).
"An alimony award is subject to modification when there has been a showing of changed circumstances." Ozolins, supra, 308 N.J. Super. at 248. Where, as here, the parties have not reached an agreement to address the issue of cohabitation differently, the cohabitation of a supported spouse is considered a circumstance that can warrant modification of alimony in accordance with the standards established in Lepis v. Lepis, 83 N.J. 139 (1980). Gayet v. Gayet, 92 N.J. 149, 155 (1983); see Konzelman, supra, 158 N.J. at 198-201 (discussing termination of alimony pursuant to an agreement between the parties).
The question whether cohabitation warrants termination or modification involves two inquires. Ozolins, supra, 308 N.J. Super. at 248. The first step is to determine whether the supported spouse and the companion have "a relatively permanent" household with the "generic character of a family unit." Gayet, supra, 92 N.J. at 155 (internal quotations omitted); cf. Konzelman, supra, 158 N.J. at 202 (discussing the nature of the relationship warranting invocation of the provision of an agreement to terminate alimony upon cohabitation). The second step is to determine whether "(1) the third party contributes to the dependent spouse's support, or (2) the third party resides in the dependent spouse's home without contributing anything toward the household expenses." Gayet, supra, 92 N.J. at 153; see Garlinger v. Garlinger, 137 N.J. Super. 56, 64 (App. Div. 1975). This court has held that a rebuttable presumption of such economic interdependence arises when a supporting spouse has made a showing of cohabitation. Ozolins, supra, 308 N.J. Super. at 248. The benefit of that rebuttable presumption is a shift in "the burden of proof . . . to the dependent spouse." Id. at 249; see ibid. (recognizing deviation from the ordinary rule under which the burden proof remains with the party seeking modification).
The trial court did not segregate the discrete inquiries. Rather, the court measured the adequacy of the evidence under the mistaken view that plaintiff was obligated to "convinc[e] [the] court . . . that his former wife is in a relationship with Mr. Semprivivo, such that, her economic circumstances have changed . . . ." Because the court combined the two separate inquiries, plaintiff was deprived of the benefit of the rebuttable presumption. For that reason, we must reverse and remand for application of the proper standard. Manalapan, supra, 140 N.J. at 378.
We recognize that there is some ambiguity in the court's decision. Arguably, the decision can be read to suggest that the court found that plaintiff's prima facie showing of cohabitation was overcome. We cannot affirm on that basis because it is not clear that the court resolved, or could have resolved, the case on that ground. See Rova Farms Resort, Inc. v. Investors Ins. Co. of America, 65 N.J. 474, 484 (1974) (noting that this court should not accept factual findings that are so "manifestly unsupported by [and] inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice").
Undisputed evidence supported a finding that Semprivivo and defendant had a relationship with the generic character of a family unit as a relatively permanent household. We reference evidence of Semprivivo's installation of his business telephone, computer line and facsimile machine in the basement of defendant's home; use of a UPS mailbox nearby as his only address in dealings with banks, utility companies, the Motor Vehicle Commission and the Internal Revenue Service; use of the laundry facilities and a closet; assistance with grocery shopping and dog walking; regular presence on holidays and birthdays throughout the years; and consultation with members of defendant's family about purchase of a gift for defendant. Because the trial court rejected Semprivivo's explanation for use of a commercial mailbox near defendant's home, factual findings that would support a conclusion that Semprivivo had not made defendant's house his home are not apparent.
Reversed and remanded.
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