On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-5186-83-J.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Sabatino.
In this post-judgment matrimonial matter, Gary Gaspari ("the ex-husband") appeals from a February 8, 2008 order of the Family Part. The order requires him to pay for the rent and utilities of his former spouse, respondent Karen Gaspari ("the ex-wife"), for premises comparable to the apartment that the parties resided in together during their marriage, which ended in 1983. We reverse.
The parties were married in 1967. In or about 1970, they moved into a unit in a two-family residence at 181-183 Front Street in South Plainfield, New Jersey. The residence was owned by the ex-husband's parents. The parties lived there, along with their two children, until the time of their separation and divorce.
The divorce action was resolved amicably through a two-page Final Judgment of Divorce ("FJD") entered on August 23, 1983. Pursuant to the FJD, the ex-wife retained primary custody of the children, who were then both minors. The ex-husband agreed to pay child support through the time of the children's emancipation. The FJD did not provide for any alimony.
Pertinent to the present appeal, the FJD recited that "the [ex-]husband shall be responsible for the rent and all utilities on the apartment presently occupied by the infant children and [the ex-wife] at 183 Front Street, South Plainfield, New Jersey[.]" This financial commitment was in addition to the exhusband's promise in the FJD to pay his ex-wife a specified amount of weekly child support.
The ex-husband complied with this term of the FJD for many years. Since his parents did not charge rent for the apartment, the ex-husband only needed, as a practical matter, to pay for the ex-wife's utilities.
The two children became emancipated, respectively, in 1986 and in 1998. Meanwhile, the ex-wife continued to reside in the apartment, as subsidized by the ex-husband.
After the second child attained emancipation, the ex-husband filed a motion in 2000 with the Family Part seeking to terminate his obligation to pay the rent and utilities. The ex-wife filed a cross-motion, requesting that her former spouse be obligated to pay rent and utilities for a residence equivalent to the apartment. At the time these motions were pending in 2000, the ex-husband's mother was in the process of selling the premises to a third party. There was some uncertainty at that time whether the new premises owner would permit the ex-wife to remain there.
In the fall of 2000, a Family Part judge*fn1 heard the exhusband's motion and the ex-wife's cross-motion. The judge conducted a plenary hearing and heard testimony from the parties about their respective intentions under their PSA. The judge also considered a videotaped deposition of the ex-husband's former counsel from the divorce action.
The ex-wife asserted at the 2000 plenary hearing that she had negotiated for the rent and utilities to be paid to her indefinitely as, in essence, an indirect form of alimony that would be unaffected by the children's emancipation. The ex-husband and his former attorney, on the other hand, maintained that the duty to pay rent and utilities was contemplated to cease once the children both reached the age of majority.
After what he described as "[c]areful review of all the evidence presented by both parties," and "in consideration of [the applicable] laws," the first judge issued a bench ruling on September 12, 2000. In that ruling, the judge held the ex-husband liable to continue to pay the ex-wife the rent and utilities for the apartment "until such time as she no longer resides at 183 Front Street[.]" The judge denied, however, the ex-wife's cross-motion for the costs of a comparable apartment if she were forced to move out. The judge declined to reach the question of whether a new premises owner would have the right to evict the ex-wife, noting that such an asserted right would have to be ...