On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-953-06P.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...