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Gallagher v. Gallagher


November 10, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-953-06P.

Per curiam.


Argued October 4, 2010

Before Judges Sabatino and Alvarez.

Defendant Daniel J. Gallagher filed an unsuccessful motion to terminate limited duration alimony based on the alleged cohabitation of his former wife, plaintiff Laura Gallagher. Oral argument was conducted and the application was denied on December 18, 2009. We now reverse and remand the matter for a plenary hearing.

The parties divorced on October 30, 2006. The property settlement agreement (PSA) they had signed a few days earlier was incorporated into the divorce judgment. In pertinent part, it obligated defendant to pay plaintiff $885 per week for seventy-two months calculated from October 1, 2006, subject to credits no longer in issue. On December 11, 2007, the parties agreed to reduce the alimony by $100 weekly, in consideration of defendant's payment of $50 per week towards a college fund for the parties' three children. The PSA also provided that "in the event of permanent cohabitation by wife as defined in Konzelman,*fn1 each of the parties reserves their right to seek a modification of the alimony provisions."

On October 16, 2009, defendant moved to terminate or modify the alimony payments as a result of plaintiff's alleged cohabitation.*fn2 On November 24, 2009, plaintiff cross-moved for a plenary hearing in the event the court found that defendant had established a prima facie case of cohabitation.

During the December 18, 2009 oral argument, the court acknowledged defendant's extensive certifications from private investigators, submitted in support of his application, to the effect that plaintiff's paramour arrived at her home late at night and left early in the morning at least eighty percent of the time over the course of 130 days, and for ninety percent of the time for two of those months. It is undisputed that the parties' three children have a positive relationship with him; that plaintiff, he, and the children have traveled together; that plaintiff and he spent at least one holiday together, and have gone camping on three occasions. The relationship has lasted three years.

Plaintiff denied that the paramour performed household tasks such as mowing the lawn, but conceded that he has picked up the children from school and attends their sporting events. Plaintiff denied that he receives mail at her home, or that the parties have any legal or financial entanglement whatsoever. She further claimed that he maintains a home in a nearby town at a rental property owned by his sister.

The alimony calculation in the PSA assumes that defendant earns approximately $175,000 per year and that plaintiff earns $36,000. The latter figure was income imputed to her. Initially, the motion court was inclined to order a plenary hearing, subject to defendant advancing plaintiff's counsel fees for the anticipated cost of discovery and the hearing, without prejudice.

At the close of oral argument on the application, however, the judge stated:

I am not satisfied that [defendant] has met the prima facie case under Konzelman because I am satisfied that Konzelman does couple the economic benefits with cohabitation and I do agree that [defendant] has all the information, which is why the burden, once [defendant] makes those allegations, which all they would be, the burden would shift to [plaintiff] to refute those, but [defendant] hasn't even made the allegations [of economic benefits].

So, therefore, I am going to deny his application for a termination of alimony.

Ordinarily, modifications of support orders are made based on changed circumstances as defined by Lepis v. Lepis, 83 N.J. 139 (1980). This includes the changed circumstances resulting from the dependent spouse's cohabitation. Id. at 151. If the parties agree that a change in circumstances as defined in a PSA will terminate alimony, "the court should defer to the arrangements undertaken by the parties." Konzelman, supra, 158 N.J. at 197.

The motion court concluded that because defendant did not allege any specific economic benefit plaintiff gained by her cohabitation, defendant had not established a prima facie case. Although he acknowledged that once such a prima facie case was established the burden would shift to plaintiff to rebut the claims, he did not believe defendant's proofs rose to that level. The motion judge therefore opined that a Konzelman prima facie showing required at least allegations of financial entanglements.

We do not disturb a trial court's factual findings unless unsupported by "adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). And we pay particular deference to the Family Part's expertise. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). But the legal consequences which flow from such factual determinations "are not entitled to any special deference." Manalapan Realty LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We do not agree with the motion court's reading of Konzelman.

Subject to the further development of the record, the facts in Konzelman appear similar to the facts in this case. In Konzelman, the dependent spouse and the paramour shared chores, resided together over a four-month period, had joint savings, and vacationed together. In this instance, plaintiff and her paramour have been together for three years, vacationed together, and camped out together with the parties' children. He spends most evenings in plaintiff's home. He spent the Christmas holiday with plaintiff's family, at least in 2008.

Here defendant has asserted, at a minimum, that plaintiff and her paramour have a stable domestic relationship like the one enjoyed in Konzelman by the dependent spouse and her cohabitant. Konzelman defines a change of circumstances requiring review of an alimony obligation in this context as an enduring social relationship "coupled with economic consequences . . . ." Id. at 196. The economic consequences "must be sufficiently material to justify relief." Ibid. A fair reading of Konzelman requires the completion of discovery and a plenary hearing to resolve whether plaintiff's cohabitation results in economic consequences which warrant an adjustment to defendant's alimony obligation. See Konzelman, supra, 158 N.J. at 202.

Plaintiff's counsel was adamant that because plaintiff had "over $120,000 roughly still at stake in this matter," she exercised real caution to prevent economic entanglements with her paramour. As plaintiff's counsel stated during oral argument on the motion, "[s]he knows what's she's doing. She doesn't have to put her alimony at risk."

The PSA could have provided, however, that the limited duration alimony was payable even if plaintiff cohabited with another. But plaintiff knowingly consented, while represented by counsel, to the possibility of a change of circumstances application as defined by Konzelman, were she to develop a "serious and lasting relationship," and we do not make better agreements for the parties than they make for themselves. See Konzelman, supra, 158 N.J. at 203; Smith v. Smith, 72 N.J. 350, 358 (1977).

Therefore, in order for an equitable assessment of the economic consequences resulting from plaintiff's relationships, discovery and a plenary hearing must be conducted. See Conlon v. Conlon, 335 N.J. Super. 638, 649-50 (Ch. Div. 2000). The burden is now upon plaintiff to rebut the presumption of changed circumstances arising from defendant's prima facie showing. Ozolins v. Ozolins, 308 N.J. Super. 243, 248-49 (App. Div. 1998). "When a genuine issue of material fact exists, a plenary hearing is required." Palmieri v. Palmieri, 388 N.J. Super. 562, 564 (App. Div. 2006) (citing Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976)). Defendant has proven enough to entitle him to that relief.

We do not suggest the final outcome. We merely conclude that once defendant proved that plaintiff's relationship has lasted for three years, that the paramour spends most nights at plaintiff's home, that he has a positive relationship with the parties' children and plaintiff's family, and that, at least from appearances, the situation is more like a marriage than a casual social connection, defendant is entitled to discovery and a hearing.

Given the disparity in income between the parties, it is reasonable, without prejudice, for defendant to advance to plaintiff, after appropriate application to the court, counsel fees for the costs of representation during the discovery process and a plenary hearing. Depending on the outcome of these proceedings, defendant may subsequently seek reimbursement should he prevail or the court otherwise determine that the equities warrant such an order.

Reversed and remanded.

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