On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-428-06B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2009
Before Judges Grall and LeWinn.
Defendant Kyle Blue appeals from the September 11, 2008 order of the Family Part denying his motion to terminate or reduce his alimony obligation to plaintiff Cynthia Blue based upon her cohabitation with an unrelated male. For the reasons that follow, we reverse and remand.
The parties were married on November 22, 1992, and were divorced on May 22, 2006. Their property settlement agreement (PSA) incorporated into their final judgment of divorce provided that defendant would pay permanent alimony of $300 per week. The PSA did not address cohabitation as an alimony-terminating event.
The amount of alimony and child support was based on plaintiff earning $450 per week and defendant earning $1538 per week. In accordance with Weishaus v. Weishaus, 180 N.J. 131, 144 (2004), the parties deferred determination of the marital standard of living. The case information statement (CIS) plaintiff submitted at the time of the divorce reflected monthly marital expenses in the amount of $4451.*fn1
On November 13, 2006, defendant filed a motion to terminate alimony based on plaintiff's cohabitation. Plaintiff filed a cross-motion to deny defendant's request, acknowledging her cohabitation but denying that she derived an economic benefit as a result. Both parties asked to have the matter decided on the papers.
On January 26, 2007, the trial judge entered an order reducing defendant's alimony obligation from $300 per week to $220 per week. In his statement of reasons, the judge accepted plaintiff's representation that she and her paramour "divide the monthly household expenses equally." The judge engaged in calculations based upon plaintiff's CIS, and reduced defendant's alimony obligation accordingly.
Defendant appealed and we reversed and remanded the matter for a plenary hearing. Blue v. Blue, No. A-3308-06 (App. Div. November 14, 2007) (slip op. at 9). We noted that the judge should not have "proceeded to determine the amount of the appropriate reduction without requiring the discovery and exchange of Case Information Statements contemplated by Rule 5:5-4(a) and Lepis [v. Lepis, 83 N.J. 139 (1980)]." Ibid.
The same trial judge held a plenary hearing pursuant to that remand on April 2 and 30, 2008. Plaintiff testified that she earns approximately $450 per month cleaning houses, but her description of her monthly schedule permitted an inference that she earned about $600 per month. Defendant's earnings after the divorce fluctuated but in each year since the divorce exceeded the weekly amount specified in the PSA.
Plaintiff presented evidence about her financial arrangements with her paramour. She reported monthly expenses of $3701, which includes $2296 for shelter expenses. The lease for the townhouse they rent for $1400 per month is in his name not hers. The gas and electric bill is about $185 per month, and the heat bill is $154. The monthly phone bill, including cell phones is $129. She testified that they combined their net monthly income - her $450 or $600 per month and his net weekly income of $800, or $3440 per month. On cross-examination, however, plaintiff indicated that they equally divided the rent and the gas and electric bill. At another point her testimony was that she contributed half the rent and paid the electric and gas bill and the phone bill in full, a total of $854 of the $2988 shelter expense, which would permit the conclusion that her paramour contributed $959 per month. Plaintiff also claimed that the imputation of $450 per week to which she agreed at the time of the divorce two years earlier was not realistic. Other than indicating that her work schedule permitted her to spend time with her sons, one in junior high school and one in high school, she provided no information as to why she cleaned houses for only three clients.
The trial judge issued a written decision on September 11, 2008, in which he found that plaintiff's paramour contributed $700 per month towards the rent and paid one-half of the monthly gas bill. The judge reviewed the expenses in plaintiff's CIS and concluded that even "[c]onsidering the $700 from the cohabitant, she still has a monthly shortfall of nearly $250 per month." ...