On appeal from Superior Court of New Jersey, Chancery Division, Somerset County, Docket No. FM-18-17373-90.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Miniman and Waugh.
Plaintiff Cecilia M. Kerridge appeals the order entered by the Family Part terminating the obligation of her former husband, defendant Rodney J. Kerridge, to pay her alimony under the terms of their property settlement agreement (PSA).*fn1 We affirm.
We discern the following facts and procedural history from the record.
The parties were married on November 11, 1972, and divorced on November 13, 1991. The final judgment of divorce incorporated the PSA, which provided for "permanent alimony" of $475.00 per month. The alimony was to "continue until either of the parties' death, [Cecilia's] remarriage or cohabitation with any unrelated adult male."
In 2001, Rodney performed an internet search of newspapers in Santa Cruz, California, where Cecilia and the parties' children were living. He found an article entitled: "The high cost of Senior Year." The article referred to Rodney's son as the "stepson-to-be" of a "Tim Libel," whose last name is actually Leibel. Because the article only referred to his son as Leibel's "stepson-to-be," Rodney did not move for termination of alimony at that time.
In 2007, Rodney discovered his daughter's online journal, in which she referred to Leibel as her "stepfather." Rodney then hired a private investigator. In January 2008, the investigator confirmed that Leibel and Cecilia used the same address. Rodney performed an internet search on Leibel, and found a bankruptcy petition filed by "Timothy Patrick Leibel," using the same address as Cecilia.
In March 2009, Rodney filed a motion to terminate his alimony obligation, citing the provisions of the PSA concerning cohabitation. Cecilia opposed the application, arguing that Rodney had failed to make a prima facie showing of cohabitation.
Judge Thomas Dilts held that Rodney had made a prima facie showing and "[wa]s entitled to a plenary hearing on the issue of [Cecilia's] cohabitation to determine whether it meets the definition of cohabitation as set forth . . . in Konzelman [v. Konzelman, 158 N.J. 185, 202 (1999)]." He established a time period for discovery and scheduled a plenary hearing. He also ordered that Rodney make his alimony payments into an escrow account, but subsequently suspended the payment of alimony and eventually ordered that the escrowed funds be returned to Rodney.
Throughout the litigation, Cecilia has never denied that she and Leibel reside in the same house. She argued instead that they were not "cohabitating" within the meaning of Konzelman because they do not share an intimate relationship with "all the indicia of marriage." She also denied that she and Leibel had any financial interdependence. In support of her position and in opposition to Rodney's discovery applications, she submitted her own certifications, as well as certifications from Bridget F. Grant, Ph.D., her sister and attorney-in-fact, and Leibel.
Grant maintained that Leibel was a friend of hers who, at her request, moved into the California home that she co-owns with Cecilia. Grant was concerned about Cecilia's health and her inability to maintain the house. According to Grant, "I asked Mr. Leibel if he would consider going to California to live in my home rent free in return for his labor related to doing minor home repairs, maintaining the extensive grounds and arranging for contractors to do major repairs prior to my visits to California."
Leibel certified that, since moving into the California home in 2000, he developed a friendship with Cecilia, but that he never had a romantic or intimate relationship with her, nor did he contribute to the household expenses. He also asserted that they had no shared assets or bank accounts.
Notwithstanding numerous court orders compelling their depositions, neither Cecilia nor Leibel appeared for deposition. Throughout the litigation, Cecilia has contended that she is too ill to be deposed or otherwise participate in the litigation:
I have been disabled to some extent since the early 1990s. Over the years these disabilities and other new disabilities have progressed to the point that I am now permanently and totally disabled. I ceased work altogether in 2004, at which time I retired on disability and shortly thereafter (6 months) I received SSDI. My conditions are progressive, extremely serious and not curable. The nature of my pain, which is constant, has been evaluated as 10 on a scale of 1 to 10 (10 being most severe and equivalent to amputation). I have a large spinal cord stimulator implanted permanently at the base of my spine. I take numerous medications. I have been hospitalized twice in the last year and see numerous physicians, mostly specialists. My problems extend beyond pain, such as progressive hearing loss (I have difficulties hearing on the telephone even with amplification and even in close conversation), severe limitations in walking, and memory lapses among other symptoms.
In further support of her contention, Cecilia submitted unsworn statements from her primary care physician, Maria Mead, M.D. On June 16, 2008, Mead wrote that "[Cecilia] has numerous and serious medical conditions and impairments all of which would prevent her from traveling by any mode of transportation to New Jersey." On August 25, 2008, she wrote:
It is my opinion that [Cecilia's] level of physical dysfunction and disability would not permit her to participate in any aspect of a legal action. Her mobility and other physical functioning are impaired and her conditions are associated with extreme pain. Further, the large amount of pain and other medications taken by [Cecilia] for her physical conditions have several side effects that considerably impair her ability to think and concentrate and her memory. [Cecilia] has also recently seen a neurologist concerning frequent memory lapses of significant duration that might be attributable to her medications.
On November 10, 2008, Mead wrote to the court to confirm "that [Cecilia] has been diagnosed in the past few weeks with severe, major depressive disorder."
Based on Mead's statements, the judge scheduled a hearing for December 1, 2008, finding "that a plenary hearing is necessary to determine whether [Cecilia] can appear for deposition, either in person or telephonically." He further explained:
If [Cecilia] fails to produce Dr. Maria Mead . . . via telephone, or alternatively, if [Cecilia] fails to release medical records so that Dr. Mead may testify, then the court will proceed with the plenary hearing when all other discovery is complete and draw inferences against [Cecilia] as a result of her failure to submit to deposition. The court reiterates that [Cecilia] has a duty to submit to deposition and has given [Cecilia] every opportunity to make discovery.
On December 1, 2008, Grant appeared in court and advised the judge that Cecilia would not be appearing in court or by telephone, and would not waive her physician-patient privilege or release her medical records. The judge ruled that adverse inferences would be drawn against Cecilia as a result of her unwillingness, explaining:
The Superior Court judge has a duty to test that which is said by a doctor. So I wanted the doctor on the phone. I wanted [Cecilia] to be able to participate on the phone. . . . I would not just read her short letter, but I would be able to ask her questions, hear what she has to say and then I could make a decision. . . . [T]oday, because [Cecila] through Doctor Grant, her attorney-in-fact, has asserted that she objects and will not release any records, it is clear that [the] opportunity that I gave was rejected by [Cecilia]. And so, obviously, we are not going to have a plenary hearing on whether she can testify.
The hearing on Rodney's application to terminate alimony took place over two, non-consecutive days in January and February 2009. Rodney was represented by counsel. Grant, even though she is not an attorney, was permitted to represent Cecilia on the basis of the power-of-attorney.
Rodney was his only witness at the plenary hearing on cohabitation. He testified about how he came across the newspaper article, his daughter's online journal, and Leibel's bankruptcy petition, but he offered no other evidence of Cecilia's cohabitation with, or financial dependence on, Leibel.
Grant was Cecilia's only witness. Her testimony can be summarized as follows. She and Cecilia are co-owners of the house where Cecilia and Leibel resided. She met Leibel in 1998, and they became very good friends. In 2000, she invited Leibel to move into the California home because Cecilia had been very ill since 1998 and could not maintain the home. According to Grant, "the ...