On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-222-04B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Alvarez.
Defendant husband, Leslie Streitfeld, appeals from a June 1, 2007 order, which denied his request to terminate alimony. Defendant sought, in the alternative, an exchange of discovery and a plenary hearing on the issue of alimony, based on cohabitation by his former wife, plaintiff Deborah Stefanelli, formerly known as Deborah Streitfeld. For the reasons that follow, we affirm.
The parties married on June 22, 1986, divorced on July 23, 2004, and have two children who reside with plaintiff. In their marital settlement agreement, dated May 21, 2004, defendant agreed to pay plaintiff $2,750 monthly as permanent alimony and $1,204 monthly as child support. The agreement included a clause that allowed defendant to seek to modify his alimony obligation if he was able to prove that plaintiff was cohabiting.
Shortly after the divorce, plaintiff began the cohabitation that continued to the date of this appeal. Consequently, on December 23, 2004, the parties, without any exchange of discovery, entered into a consent order that reduced defendant's alimony obligation to $1,612.50 monthly. The record does not indicate if defendant filed a motion to reduce alimony, or if the parties merely filed a consent order once they modified their prior agreement. The consent order states that the reduction was "in recognition of the [p]laintiff's cohabitation with an unrelated third party." It specifically notes that the parties agreed "not to engage in discovery regarding this cohabitation and instead, they have entered into this amicable arrangement."
This current application by defendant to modify alimony was triggered by plaintiff's move, with the children and the cohabitant, to Pennsylvania. In reliance on Stamberg v. Stamberg, 302 N.J. Super. 35 (App. Div. 1997), the motion judge denied the requested relief. He found that as a matter of law, defendant had to establish a prima facie case of "changed circumstances." See Lepis v. Lepis, 83 N.J. 139 (1980). Because he concluded that defendant had not established a change in plaintiff's circumstances subsequent to entry of the consent order reducing alimony, no order for discovery was entered and a plenary hearing was not scheduled. As the motion judge noted, the only facts that defendant proffered were that two-and-one-half years had elapsed since the date of the consent order and that plaintiff had moved to another state. Absent factual allegations of enhanced lifestyle, the motion judge reasoned, there was no basis to award relief.
Cohabitation means more than residence under one roof:
Cohabitation involves an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage. These can include, but are not limited to, living together, intertwined finances such as joint bank accounts, sharing living expenses and household chores, and recognition of the relationship in the couple's social and family circle. [Konzelman v. Konzelman, 158 N.J. 185, 202 (1999).]
It is the financial impact of cohabitation, not the relationship itself, that triggers review of alimony obligations. Gayet v. Gayet, 92 N.J. 149, 155 (1983). In this case, however, the extent to which the affairs of plaintiff and her cohabitant are economically intertwined is simply unknown. It would have been preferable for the parties to have clarified plaintiff's financial picture when they agreed to the reduction in alimony payments. See, e.g., Weishaus v. Weishaus, 180 N.J. 131, 144 (2004) (stating that while a trial court need not make findings as to the marital standard of living upon a mutually agreed-upon settlement, it "should take steps to capture and preserve the information that is available").
"[A] showing of cohabitation creates a rebuttable presumption of changed circumstances shifting the burden to the dependent spouse to show that there is no actual economic benefit to the spouse or the cohabitant." Ozolins v. Ozolins, 308 N.J. Super. 243, 245 (App. Div. 1998). Once that rebuttable presumption is raised, the dependent spouse must establish that the cohabitation has no impact on his or her financial needs.
In this case, however, defendant has not alleged even one circumstance that constitutes a change in plaintiff's lifestyle since entry of the consent order. In other words, because the consent order was previously entered solely as a result of plaintiff's cohabitation, more must now be shown. If defendant cannot assert even one fact that establishes an enhanced economic benefit to plaintiff resulting from the cohabitation that did not exist when the cohabitation began, he has not shown the change of circumstances necessary to warrant discovery. As the motion judge said:
The best I have is a certification that the plaintiff... moved for a better life, and it's ...