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Hartelust v. Hartelust

January 12, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-949-06E.

Per curiam.


Argued December 8, 2009

Before Judges Fuentes and Gilroy.

Plaintiff Nora Hartelust, n/k/a Nora Ortiz, appeals from the August 1, 2008 order that granted defendant Alexander Hartelust's motion to terminate his alimony obligation, and awarded defendant $1,000 in counsel fees. Plaintiff also appeals from the December 10, 2008 order that denied her motion for reconsideration. We affirm in part and reverse in part.

Following approximately twenty years of marriage, the parties divorced on January 16, 2007. One son, age fifteen at the time of divorce, was born of their marriage. The final judgment of divorce (JOD) incorporated the provisions of the parties' property settlement agreement (PSA). Based on plaintiff then earning $15,000 per annum and defendant earning $60,000 per annum, the PSA provided, among other things, that defendant: 1) pay plaintiff $175 per week in child support; 2) pay plaintiff $220 per week in permanent alimony; and 3) transfer his ownership interest in the parties' marital home to plaintiff. However, the PSA did not address cohabitation.

Unbeknownst to defendant at the time of divorce, plaintiff had commenced cohabiting in the marital home with Michael Philomino. On learning of plaintiff's cohabitation, defendant stopped paying alimony on April 20, 2007. In July 2007, defendant filed a motion seeking an order terminating his alimony retroactive to the date plaintiff commenced cohabiting. Plaintiff filed a cross-motion seeking an order compelling defendant to pay alimony arrearages. Because neither party appeared for a court-scheduled hearing, the court entered an order on October 26, 2007, denying defendant's motion.

On February 8, 2008, the court entered an order that: 1) denied defendant's motion to vacate the October 26, 2007 order; 2) denied without prejudice defendant's request for a plenary hearing concerning the termination of alimony; 3) directed the parties to conduct discovery on the cohabitation issue; and 4) denied without prejudice plaintiff's motion seeking an order to compel defendant to pay alimony arrearages.

On May 15, 2008, the trial court conducted a plenary hearing on defendant's motion. Plaintiff, defendant, the parties' son, and Philomino testified at the hearing. On August 1, 2008, after determining that plaintiff had cohabited with Philomino from December 15, 2006, and finding plaintiff not credible as to the amount of her earnings and the monetary support she received from Philomino, the court granted defendant's motion to terminate alimony. In deciding the motion, the court reasoned:

The [c]court has had the opportunity to listen to the testimony, the parties, the witnesses, and to also [] make evaluations as to credibility of everyone. The [c]court also had the opportunity to speak with the 16-year-old son of the parties, who resides primarily with the plaintiff, in [c]hambers. The [c]court did tell the attorneys . . . the sum and substance of the conversation with the son. However, the plaintiff still wanted the son to take the stand. The son's testimony, on the stand, was consistent with the testimony given in [c]hambers . . . .

[A]s both parties set forth in their legal memorandums, the defendant does have the burden to prove that the plaintiff is cohabiting with an unrelated male. This was clearly done by the defendant.

The testimony of plaintiff's son, which was requested by the plaintiff, confirmed this. The testimony of the plaintiff's boyfriend, confirmed this. He could not have been more clear that he lives at the home with [plaintiff], and that his other home with his wife is lived in by his wife and his children. It was obvious that the plaintiff and Mr. [Philomino] are living together as husband and wife, and have done so since December of 2006.

The plaintiff, for some unknown reason, testified contrary to her son and her boyfriend, as to the boyfriend's number of nights that he resides with her. The plaintiff's testimony in this regard was not found to be credible.

In addition, the plaintiff has failed to demonstrate that Mr. [Philomino] is not providing her with financial benefit. The concern that I had, is that I believe the financial benefit that's being extended ...

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