February 3, 2011
BETSY A. WONDERLIN, PLAINTIFF-RESPONDENT,
ROBERT L. WONDERLIN, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1492-06-X.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 20, 2011
Before Judges Fisher, Sapp-Peterson and Simonelli.
In this appeal, defendant Robert Wonderlin argues that the trial judge erroneously denied his motion for modification of various obligations imposed by the judgment of divorce, based on his claim, among others, that plaintiff Betsy A. Wonderlin was cohabiting with another man and that the parties' incomes had changed to a substantial degree. We agree that Robert presented sufficient evidence to warrant compulsory discovery into the cohabitation issue and remand for that purpose.
The parties were married in 1991 and had two children. In 2006, Betsy filed this divorce action, which, on March 13, 2008, resulted in a settlement later incorporated in a dual judgment of divorce entered on November 10, 2008.
The parties agreed Robert would pay $500 per week in alimony based on their "current reported incomes in the amount of . . . $146,000.00 . . . per year for [Robert] and . . . $68,000.00 . . . per year for [Betsy]." They acknowledged Robert's "recent past year's earnings" were "greater than the income figure relied upon" in establishing the alimony award. Robert further represented in the agreement that his current employment would provide "a total potential maximum annual salary" of $146,000 but that he "believe[d]" his income for that year would be "closer" to $136,000.
On April 28, 2009 -- only eleven months after the settlement agreement and five months after entry of the judgment of divorce -- Robert moved for, among other things, modification of: his alimony and child support obligations based on changes in both his and Betsy's income since the settlement; his alimony obligation based upon Betsy's alleged cohabitation; and the parenting time schedule. The judge denied these motions for reasons set forth in an oral decision, which was later amplified by a written opinion.
Robert appealed, raising the following arguments for our consideration:
I. ISSUES OF MATERIAL FACT RAISED BY THE CONFLICTING CERTIFICATIONS CONCERNING THE WIFE'S COHABITATION WITH HER PARAMOUR, WERE SUFFICIENT TO WARRANT A PLENARY HEARING.
II. IT WAS AN ABUSE OF DISCRETION FOR THE TRIAL JUDGE TO DETERMINE THAT THE CHANGE IN THE PARTIES' INCOMES WAS INSUFFICIENT TO CONSTITUTE A CHANGE OF CIRCUMSTANCES.
III. THE TRIAL JUDGE'S FAILURE TO ENFORCE THE TERMS OF THE PROPERTY SETTLEMENT AGREEMENT REQUIRING MEDIATION OF PARENTING TIME DISPUTES CONSTITUTES AN ABUSE OF DISCRETION.
IV. THE COURT ABUSED ITS DISCRETION IN REQUIRING THE HUSBAND TO PAY WIFE'S COUNSEL FEES.
We find insufficient merit in the arguments contained in Points II and III to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
With regard to Point II, we would add only that the record fully supports the judge's determination that Robert's 2008 income was $134,702.54, hardly different from his prognostication that he would earn $136,000, and that Robert's income up to and through mid-April 2009 was $43,903.86, which suggested 2009 earnings of $147,940, in excess of the $146,000 baseline established by the settlement agreement. The judge also correctly determined that Betsy's 2008 income of $76,024 was "not a significant increase over" the $68,000 attributed to her in the settlement agreement. Accordingly, the judge did not abuse his discretion in denying relief on this aspect of Robert's motion. See Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006).
We agree with Robert, however, that he was entitled to relief with regard to his claim that Betsy was cohabiting. In considering this argument, the trial judge applied accepted legal principles in holding that a mere dating or romantic relationship is not alone sufficient to cause a termination of alimony. Instead, the judge correctly recognized that cohabitation requires much more, namely, "stability, permanency and mutual interdependence," Konzelman v. Konzelman, 158 N.J. 185, 202 (1999), and whether the couple "bears the 'generic character of a family unit as a relatively permanent household,'" Gayet v. Gayet, 92 N.J. 149, 155 (1983) (quoting State v. Baker, 81 N.J. 99, 108 (1979)). In essence, cohabitation requires proof of "an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage," which include but are not limited to "living together, intertwined finances such as joint bank accounts, sharing living expenses and household chores, and recognition of the relationship in the couple's social and family circle." Konzelman, supra, 158 N.J. at 202.
Here, Robert provided certifications and information gathered by a private investigator suggesting an intimate relationship between Betsy and another man, J.B., including some suggestion that J.B. was involved in activities not only with Betsy but also the children of the marriage. This evidence was certainly consistent with the claim of cohabitation but undoubtedly our jurisprudence required more, thus posing the difficulty faced by any former spouse seeking to prove cohabitation.
It is the unlikely case in which the former spouse will have access to the bank accounts or insight into whether the alleged cohabitors are sharing expenses and household chores. All that was available to an outsider here -- evidence of the times J.B. enters and leaves Betsy's home, his walking of the dog, what he brings into Betsy's home -- is alone insufficient to warrant a finding of cohabitation, as the judge correctly recognized. But so long as this type of evidence suggests cohabitation, the former spouse should be entitled to discovery into those other areas that are critical to a finding of cohabitation. Without discovery, a former spouse is ordinarily incapable of showing the intertwining of offenses or evidence of how the couple is viewed socially. Robert should not have been denied relief because the information he required was uniquely in possession only of Betsy and J.B. See, e.g., Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 76 (1954) ("sound[ing]," with regard to the summary judgment procedure, "a note of caution . . . as to any case where the opposing party must prove his claim or defense from what he can draw from the other party"). We conclude that Robert presented enough to warrant discovery into those other critical areas and, therefore, remand for a sufficient period of discovery to allow a fair inquiry into whether Betsy and J.B. have intertwined finances, whether they share living expenses and household chores, and whether there has been "recognition of the relationship in the couple's social and family circle." Konzelman, supra, 158 N.J. at 202.
We do not necessarily require an evidentiary hearing into the question. The parties remain entitled to argue that whatever discovery does or does not disclose warrants a disposition of the cohabitation issue as a matter of law. The need for an evidentiary hearing, therefore, must abide the conclusion of discovery.
As for Robert's Point IV, in light of our disposition of this appeal, we vacate the fee award rendered in favor of Betsy because it is based in part on the judge's rejection of Robert's cohabitation argument. We have no similar misgivings of the other factors upon which the fee award was based. The judge may consider again Betsy's application for fees based upon the rejection of Robert's other contentions, or simply reconsider the entire application once the cohabitation proceedings are concluded.
Affirmed in part; reversed and remanded in part. We do not retain jurisdiction.
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