May 29, 2009
JOHN L. ADESSA, PLAINTIFF-APPELLANT,
HELEN ADESSA, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-125-05A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 20, 2009
Before Judges R. B. Coleman and Simonelli.
Plaintiff John L. Adessa (John) appeals from an order of the Family Part denying his motion to terminate alimony based on defendant Helen Adessa's (Helen) alleged cohabitation, and an order granting Helen's cross-motion to compel certain payments required by the parties' property settlement agreement (PSA) and awarding her counsel fees and costs for her cross-motion. We affirm.
John and Helen were married on September 7, 1984. No children were born of the marriage. A final judgment of divorce incorporating the PSA was entered on January 3, 2006. The PSA required John to pay permanent alimony as follows: "$6000 per month and thirty percent (30%) of his annual net bonus. 'Net bonus' shall be defined as [John's] bonus less traditional and mandatory taxes such as state, federal and social security. Any other deductions shall not be taken into consideration when determining [John's] net bonus." The PSA provided for the termination of alimony on John's or Helen's death, Helen's remarriage, or her cohabitation. The PSA also required John to pay Helen twenty percent of any annuity he obtained from his employer.
In November 2007, John filed a motion to modify or terminate alimony, contending that Helen was cohabitating with her long-time boyfriend, Scott. Alternatively, John sought discovery and a plenary hearing. He grounded his cohabitation claim on the following evidence: Helen and Scott jointly purchased property in Newry, Maine in June 2007; Helen directed him to send her June and July 2007 alimony payments c/o Scott to a post office box issued to Scott in Greenwood, Maine; in September 2007 Helen directed him to send her alimony checks to her condominium in Long Branch, New Jersey until it was sold because she was "planning to move to Maine and purchase a home there;" in November 2007, he received mail from Helen with a post office box return address for a post office box issued to Scott in Newry, Maine; and Scott once lived with Helen in her Long Branch home.
In response, Helen admitted her relationship with Scott, but denied that they lived together or that she received an economic benefit from him. She certified as follows: Scott always maintained his own residence, except for a three-month period in 2007 when he lived with her before moving to Maine; Scott moved to Maine in March 2007, as shown by the copy of his driver's license and vehicle insurance card she submitted; Scott provided her no support or financial assistance; the Maine property they purchased is a vacation home where they spend vacations or weekends together; and she and Scott have no plans to reside together. Helen also certified that she does not live in the Maine home, and that she has no intention of moving there. Helen also provided documentary evidence*fn1 of her New Jersey residence. She also operates a business here. She also explained that she asked John to send one alimony check to Scott's Maine post office box because she was vacationing there at the time and that she asked John to mail her checks to other addresses unconnected to Scott.
Helen also filed a cross-motion to, among other things, compel John to pay $9532.50, representing thirty percent of his 2007 net bonus, and $8000, representing twenty percent of his annuity from his employer. In response, John admitted receiving a $50,000 gross bonus and a $40,000 gross annuity. He disagreed with how Helen calculated her thirty percent share and contended that he should be permitted to deduct $13,505.47 for "the mandatory deduction from [his] bonus to reimburse [his] company for travel expenses[.]" He also disagreed that Helen is entitled to twenty percent of the annuity. He contended that she should only receive twenty percent of the $26,480 "net" annuity he received.
The motion judge denied John's motion, concluding that John failed to prove cohabitation. The judge found that Helen legally resided in New Jersey and Scott then legally resided in Vermont. The judge also found that the brief period of time Scott lived with Helen in New Jersey did not prove cohabitation, nor did Helen's receipt of mail at Scott's Maine post office address.
The judge granted Helen's cross-motion as to the net bonus, concluding that the PSA precluded John from deducting anything other than traditional and mandatory taxes. The judge also granted the motion as to the annuity, concluding that the PSA does not provide that Helen's twenty percent was to be based on a net amount. The judge also awarded Helen $1055 for counsel fees and costs for her cross-motion. This appeal followed.
"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact-finding." Id. at 413. If evidence is lacking to sustain the court's finding, it is only then that the findings must be set aside. Where our review addresses questions of law, a trial judge's findings "are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002) (citing Manalapan Realty, L.P. v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995)). With these standards in mind, we address John's contentions.
John contends that, having established a prima facie showing of cohabitation, he is entitled to discovery and a plenary hearing. We disagree.
A party seeking modification of alimony based on cohabitation must first establish a prima facie case before proceeding to discovery and a plenary hearing. Lepis v. Lepis, 83 N.J. 139, 157 (1980). Where a fair and equitable PSA provides for termination of alimony upon cohabitation, "the court need not delve into the economic needs of the dependent spouse." Konzelman v. Konzelman, 158 N.J. 185, 197 (1999). The supporting spouse need only show that the dependent spouse has entered into a new marriage-like relationship. Ibid.
A mere romantic, casual or social relationship is not sufficient to justify the enforcement of a settlement agreement provision terminating alimony. Such an agreement must be predicated on a relationship of cohabitation that can be shown to have stability, permanency and mutual interdependence. The Appellate Division has expressed that standard by defining cohabitation as a domestic relationship whereby two unmarried adults live as husband and wife.  Cohabitation is not defined or measured solely or even essentially by "sex" or even gender, as implied by the dissent.  The ordinary understanding of cohabitation is based on those factors that make the relationship close and enduring and requires more than a common residence, although that is an important factor. 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. [Id. at 202 (internal citations omitted).]
Based on our careful review of the record, we discern no reason to disturb the judge's ruling. We are satisfied that John has failed to establish a prima facie showing of cohabitation. Helen and Scott do not live together and there is no evidence of mutual interdependence or the undertaking of duties and privileges commonly associated with marriage.
John's reliance on Devaney v. L'Esperance, 195 N.J. 247 (2008) does not change this result. There, the Court concluded that a party may prove a cause of action for palimony absent cohabitation where a marital-type relationship is established. Id. at 258-59. No such relationship has been established here.
John's remaining contentions that he is entitled to deduct his travel expenses from his net bonus, that Helen's entitlement to twenty percent of his annuity should be based on a net amount, and that the motion judge erred in awarding Helen attorneys' fees and costs for her cross-motion lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we add the following comments.
The PSA specifically precludes the deduction of anything other than "traditional and mandatory taxes." It also does not provide for the calculation of Helen's twenty percent share of John's annuity on a net basis. Also, we discern no abuse of discretion in the award of counsel fees and costs. The provisions of the PSA as to the net bonus and annuity were crystal clear; John's attempt to avoid his obligations under those provisions was without merit.