July 13, 2009
GINA A. DUARTE, PLAINTIFF-RESPONDENT,
MARIO E. DUARTE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-641-01-A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2008
Before Judges Rodríguez and Waugh.
Mario E. Duarte (ex-husband) appeals from the October 15, 2007 order denying his motion for termination of alimony based on cohabitation by Gina A. Duarte (ex-wife) with Derrick Wiley, an unrelated adult male. We reverse and remand.
The parties were married in 1985 and divorced in 2002, following a bench trial. Among other issues resolved in the judgment of divorce, the judge set child support at $239 per week for the two sons of the marriage, now ages seventeen and eighteen; and set permanent alimony at $250 per week to be paid through the Monmouth County Probation Department. The judgment provides that "alimony will terminate upon the death of either party, or remarriage of [ex-wife]. Moreover, in the event [ex-wife] cohabits with an unrelated adult male, alimony will be subject to review under the laws of the State of New Jersey."
Ex-husband filed a post-judgment motion for termination of alimony, alleging that, commencing November 25, 2005, ex-wife became pregnant and has a daughter by her cohabitant, Derrick Wiley. This came to light when Wiley's wife, Debra Wiley, informed him of the relationship and pregnancy. Ex-wife opposed the motion, asserting her rights to privacy and to conduct her life as she saw fit. Ex-wife also argues that her cohabitant Wiley is not contributing financially to her household. She certified that when "Derrick has . . . been out of work, [ex-wife] has supported him."
At a hearing on the motion, ex-wife was the sole witness. She testified that she is not working and attends school. She asserted that she is totally dependent upon ex-husband's support. Ex-wife began cohabitating with Wiley in 2005. She failed to supply this information to ex-husband. Ex-wife became pregnant by Wiley. Wiley does not pay room, board or any contribution towards the running of the household other than $50 per week child support for his infant daughter, who was born on November 28, 2006.
The judge also relied on ex-wife's case information statement (CIS). In a written opinion, the judge correctly ruled that the mere fact of cohabitation does not warrant modification or termination of alimony, but that "once cohabitation has been shown the burden shifted to the defendant spouse to show that termination or modification is not warranted." (citing Ozolins v. Ozolins, 308 N.J. Super. 243, 247-49 (App. Div. 1998)). However, the judge denied exhusband's application on finding that ex-wife's need for support has remained the same in light of the fact that Wiley makes no contributions to the household beyond $50 per week paid towards the support of his daughter with ex-wife. The judge failed to impute any level of contribution by Wiley for room and board.
On appeal, ex-husband contends:
THE TRIAL COURT'S DECISION CONDEMNS DEFENDANT TO AN INDETERMINATE SENTENCE OF INVOLUNTARY SERVITUDE IN VIOLATION OF THE THIRTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
THE TRIAL COURT'S RELIANCE UPON [EX-WIFE'S] TESTIMONY WAS PREJUDICIAL ERROR. [EXWIFE'S] TESTIMONY WAS PATENTLY FALSE AND SO MANIFESTLY UNSUPPORTED BY CREDIBLE EVIDENCE AS TO OFFEND THE INTERESTS OF JUSTICE.
THE COHABITATION ARRANGEMENT IN THIS CASE IS THE "FUNCTIONAL EQUIVALENT OF A MARRIAGE" REQUIRING TERMINATION OF ALIMONY. TO PROVIDE OTHERWISE IS VIOLATIVE OF PUBLIC POLICY AND PREJUDICIAL ERROR. [EX-WIFE'S] CONDUCT IN SECRETING HER RELATIONSHIP AND PREGNANCY, WHILE DEMANDING ENFORCEMENT OF THE ALIMONY ORDER, CONSTITUTES "EGREGIOUS AND OUTRAGEOUS" CONDUCT. IT IS NEITHER FAIR, EQUITABLE NOR JUST TO CONTINUE ALIMONY GIVEN SUCH CONDUCT.
We do not agree with these contentions. Nonetheless, we reverse and remand, concluding that even if the proofs do not warrant termination of alimony, they may warrant a reduction based on the principles announced in Gayet v. Gayet, 92 N.J. 149 (1983), Ozolins and others.
We begin our analysis with a review of settled principles. An award for alimony is always subject to review for modification upon a showing of "changed circumstances." Lepis v. Lepis, 83 N.J. 139, 148 (1980). Among the recognized "changed circumstances," which trial courts should review is "dependent spouse's cohabitation with another." Id. at 151. Cohabitation by a supported spouse may justify discovery and a plenary hearing. Id. at 157-59. Modification should be granted "when (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 also Garlinger v. Garlinger, 137 N.J. Super. 56, 64 (App. Div. 1975); Ozolins, supra, 308 N.J. Super. at 248. Cohabitation may justify modification or termination of alimony "only if one cohabitant supports or subsidizes the other under circumstances sufficient to entitle the supporting spouse to relief." Gayet, supra, 92 N.J. at 153-54; see also Pugh v. Pugh, 216 N.J. Super. 421 (App. Div. 1987); Wertlake v. Wertlake, 137 N.J. Super. 476 (App. Div. 1975); Eames v. Eames, 153 N.J. Super. 99 (Ch. Div. 1976); Grossman v. Grossman, 128 N.J. Super. 193 (Ch. Div. 1974); Edelman v. Edelman, 124 N.J. Super. 198 (Ch. Div. 1973).
This case falls squarely in the second scenario contemplated in Gayet; i.e., the co-habitant lives with the dependent spouse and pays no household expenses.
It is true, as the judge found, that despite cohabitation, ex-wife has remained financially dependent on alimony to meet her needs. However, this may be self-created. She permits Wiley to live with her in her house but does not demand any contribution from him. Thus, it is clear that, to some extent, she is supporting Wiley. If she were financially independent, this would be her choice. However, she cannot compel ex-husband to support Wiley to any extent.
Accordingly, we remand to the trial court for a determination of the amount to be imputed to ex-wife as her support of Wiley. The alimony award should then be modified downward.
Defendant also contends:
THE DELAY IN RESOLVING THE ISSUE IN THIS CASE FOR OVER ONE YEAR RESULTED IN JUSTICE DELAYED BECOMING JUSTICE DENIED-PREVENTING AN EARLIER APPEAL.
We note, however, that any modification of spousal support may be retroactive to the date of cohabitation. Hurley v. Hurley, 230 N.J. Super. 493, 497 (Law Div. 1988).
Reversed and remanded to the Family Part, Monmouth County.
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