January 12, 2010
NORA HARTELUST N/K/A NORA ORTIZ, PLAINTIFF-APPELLANT,
ALEXANDER HARTELUST, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-949-06E.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 is more than the financial benefit that's testified to.
The plaintiff and her witness were rather casual in presenting their respective income and expenses. The monthly contribution of [Philomino] testified to . . . by Mr. [Philomino] and the plaintiff are not consistent with the living expenses of the plaintiff and Mr. [Philomino].
In addition, the plaintiff's testimony, as far as her monthly expenses, all of a sudden is very much contrary to the financial statement that she had [annexed] to her interrogatory answers. Either [as] brought up by the defense, . . . the plaintiff's presentation of her expenses are inconsistent, or Mr. [Philomino] is providing more than . . . was testified to, or both.
In any event, the plaintiff was not credible in . . . providing this . . . testimony. For instance, it was not clear from the testimony and the submissions whether the plaintiff's income was $6,000, $14,400, or $18,000 annually, as is set forth in the plaintiff's post-hearing brief. In short, the plaintiff has not met [her] burden . . . concerning the financial benefit.
Because the court found that plaintiff had not acted in good faith in opposing defendant's motion, the court awarded defendant $1,000 in counsel fees. The trial court entered a hand-written order that day.
On September 2, 2008, the court entered a confirming, typed order terminating defendant's alimony obligation, effective December 15, 2006; directing plaintiff to repay defendant $3,960 for the alimony defendant paid her from December 15, 2007 to April 20, 2008; and directing plaintiff to pay defendant $1,000 in counsel fees. On August 21, 2008, plaintiff filed a motion for reconsideration.*fn1 On December 11, 2008, the trial court denied the motion.
On appeal, plaintiff argues first that the trial court erred in determining that defendant had proven she was cohabiting with another person. Alternatively, plaintiff contends that, even if the trial court was correct in that determination, the court erred in terminating her alimony because the cohabitee's economic contribution was insufficient to offset defendant's alimony obligation. We disagree.
On appeal, factual findings and conclusions of the trial judge are generally given deference, especially "when the evidence is largely testimonial and involves questions of credibility." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005).
Accordingly, "an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact finding." Cesare, supra, 154 N.J. at 413. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 278 (1995). Courts may modify alimony awards after parties have divorced, "as circumstances may require." Innes v. Innes, 117 N.J. 496, 503 (1990) (quoting N.J.S.A. 2A:34-23). Generally, the burden of proving changed circumstances rests upon the party seeking to modify the support obligation. Lepis v. Lepis, 83 N.J. 139, 157 (1980). A dependent spouse's cohabitation with another party has been recognized as changed circumstances warranting modification of a support obligation. Id. at 151.
Changed circumstances resulting from a dependent spouse's cohabitation warrant modification "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 v. Gayet, 92 N.J. 149, 153 (1983). Simply stated, modification is required "only if one cohabitant supports or subsidizes the other under circumstances sufficient to entitle the supporting spouse to relief." Id. at 153-54.
Generally, economic contribution by the cohabitee is the primary factor in determining whether cohabitation by the dependant spouse should reduce an alimony award. Melletz v. Melletz, 271 N.J. Super. 359, 363 (App. Div.), certif. denied, 137 N.J. 307 (1994). The test is "whether the relationship has reduced the financial needs of the dependent former spouse." Ibid. (quoting Gayet, 92 N.J. Super. at 150).
"[A] rebuttable presumption of changed circumstances [arises] upon a prima facie showing of cohabitation. The burden of proof, which is ordinarily on the party seeking modification, shifts to the dependent spouse" to show that he or she has not derived an economic benefit from the cohabitation. Ozolins v. Ozolins, 308 N.J. Super. 243, 248-49 (App. Div. 1998). The reason for this shift in the burden of proof from the party seeking modification to the dependent spouse is because "it would be unreasonable to place the burden of proof on a party not having access to the evidence necessary to support that burden of proof." Id. at 249 (quoting Frantz v. Frantz, 256 N.J. Super. 90, 93 (Ch. Div. 1992)).
We have considered plaintiff's arguments in light of the record and applicable law. Plaintiffs' arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Hyland in his oral decision of August 1, 2008. R. 2:11-3(e)(1)(A). Nevertheless, we add the following comments.
The trial court correctly determined that defendant had proven by a preponderance of the evidence that plaintiff had cohabited with Philomino from December 15, 2006, through the time of the plenary hearing, or for a period of almost eighteen months. The trial court's determination was supported not only by the testimony of the parties' son, but also by Philomino.
We are also satisfied that the trial court correctly determined that plaintiff failed to prove that she had not received a substantial, economic benefit from the cohabitation.
Plaintiff certified in her answers to interrogatories that her living expenses were $3,799 (rounded to $3,800) per month. At trial, she testified that her answers to interrogatories were incorrect, stating that the figures provided included estimates for things which she desired but could not afford. She stated that her actual expenses were approximately $3,000 per month.
Against these expenses, plaintiff testified that she earned approximately $6,000 a year in tips as a dancer, received $175 per week child support for an additional $9,100 a year, and received $100 to $200 per month from Philomino. Philomino confirmed that he had given plaintiff financial assistance on a monthly basis but estimated the amount as $250 per month.
When confronted with the difference between her living expenses ($36,000 per year) and her total income ($18,100 per year), plaintiff testified that she had received additional financial assistance from her sister and father. However, plaintiff failed to provide the court with evidence supporting her inability to pay her living expenses or of her receipt of income from family members. The court did not accept plaintiff's testimony, and determined that plaintiff had failed to carry her burden of proof establishing that she had not received substantial, economic benefit from cohabiting with Philomino. Because of the conflict in plaintiff's testimony and her answers to interrogatories as to her living expenses and income, we defer to the trial court's determination, finding her not credible. F.M., supra, 375 N.J. Super. at 259.
Plaintiff argues next that the trial court erred in awarding defendant $1,000 in counsel fees. We agree.
An award of counsel fees in matrimonial matters rests in the discretion of the trial court. R. 4:42-9(a)(1); R. 5:3-5(c); Williams v. Williams, 59 N.J. 229, 233 (1971). Such exercise of discretion will not be disturbed in the absence of showing of abuse. Chestone v. Chestone, 322 N.J. Super. 250, 258 (App. Div. 1999). "Discretion, however, means legal discretion, 'in the exercise of which the judge must take account of the law applicable to the particular circumstances of the case and be governed accordingly.'" Alves v. Rosenberg, 400 N.J. Super. 553, 562-63 (App. Div. 2008) (quoting State v. Steele, 92 N.J. Super. 498, 507 (App. Div. 1966)). "Obviously, '[i]f the trial judge misconceives the applicable law or misapplies it . . . the exercise of legal discretion lacks a foundation and becomes an arbitrary act.'" Id. at 563 (quoting Steele, supra, 92 N.J. Super. at 507).
Here, in awarding defendant $1,000 in counsel fees, the trial court acknowledged that it did not possess current Case Information Statements of the parties, only the 2006 statements from the divorce proceedings; did not possess a certification of services from defendant's counsel; and did not possess sufficient information to make a factual finding as contained in Rule 5:3-5(c), other than its finding was consistent with defendant's position, and plaintiff had not advanced a good faith position in opposing defendant's motion.
As a threshold matter, we note that the trial court failed to consider seven of the nine factors of Rule 5:3-5(c). Aside from the finding of lack of good faith on plaintiff's part and the court deciding the motion in favor of defendant, no evidence exists that the court applied any of the other Rule 5:3-5(c) factors when making the counsel fee award. Lacking is any critical "review [of] the nature and extent of the services rendered, the complexity and difficulty of the issues determined, and the reasonableness and necessity of the time spent by counsel in rendering the legal services." Chestone, supra, 322 N.J. Super. at 257. Indeed, the filing of "an affidavit of services addressing the factors enumerated in RPC 1:5(a)" is required on an application for counsel fees pursuant to Rule 4:42-9(b). Additionally, there is no meaningful assessment of the parties' ability to pay their own counsel fees. R. 5:3-5(c)(2). Accordingly, we reverse the counsel fee award.
Affirmed in part; reversed in part.