November 18, 2008
DEBORAH STEFANELLI, F/K/A DEBORAH STREITFELD, PLAINTIFF-RESPONDENT,
LESLIE STREITFELD, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued August 26, 2008
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 two-and-a-half years later.
I don't think that's a prima facie [case] of a significant change in circumstances warranting discovery.
Now, it's true that the plaintiff... holds most of the discovery cards, but as [Stamberg] makes clear, there's circumstantial evidence that's still available to the defendant.
I get cohabitation cases with private investigators who camp out in front of houses. Now, who wants a private investigator camped out in front of your house?
But, if the plaintiff doesn't want to disclose what kind of car she drives, defendant can hire somebody and watch and look. He can see what kind of car the plaintiff's boyfriend drives. And she may think that's harassment, but if she doesn't disclose the information, he can get what's available to him, obviously, without interfering in her own peace and quiet.
But, he can have somebody stand out on the corner or sit in a car. And he certainly is free to go out there and take photographs of the new house and the old house, and even give me an expert's report that says she's living in a significantly more expensive and valuable house, and something's changed for the better in the last two-and-a-half years.
But, I don't have it in front of me now and I think... the [Stamberg] Court sent Mr. [Stamberg] back to get more. I think I'm obliged to send Mr. Streitfeld back to get more. I don't think two-and-a-half years by itself is enough.
We agree with the motion judge's reliance on Stamberg. In that case, a remand to the Family Court was ordered so that a payor could detail his source of knowledge about the alimony recipient's alleged inheritance before the court considered the discovery request in a change of circumstances case. Stamberg, 302 N.J. Super. at 43. The payor was required to "only outline the basis of his allegation in general terms" by certifying as to his knowledge of his in-laws' holdings, their lifestyle, prior gifts, and evidence from any other source as to the nature of the inheritance. Ibid. Once the payor supplied the additional information, the Family Court judge would have a sufficient basis to assess the alimony recipient's response and to determine if the payor had established a prima facie showing of changed circumstances such as would warrant full discovery.
Id. at 43-44. In contrast, defendant in this case is asserting that the move and the passage of time alone establish prima facie changed circumstances such that discovery should be compelled. As did the motion judge, we disagree. For defendant to establish a prima facie case of changed circumstances, he must now identify some alteration in plaintiff's lifestyle since the consent order greater than a change of address.
The findings of the Family Part have been held to be entitled to particular deference in view of their "special expertise." Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Here, the deference is entirely warranted based on our independent review of the record. The absence of any factual assertion of an actual change in circumstances compels the denial of defendant's requested relief.
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