March 21, 2011
EMI OKOSHI, F/K/A OKOSHI WILSON, PLAINTIFF-APPELLANT,
ROLAND WILSON, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2192-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 7, 2011
Before Judges Rodriguez, Grall and LeWinn.
Plaintiff Emi Okoshi appeals from a post-judgment order that terminates defendant Roland Wilson's alimony obligation based on her cohabitation and requires Wilson to contribute $2000 per semester to their daughter's college expenses commencing in Fall 2009.*fn1 We reverse the order terminating alimony because the judge did not address the permanency, stability and economic impact of the relationship between Okoshi and her alleged cohabitant, and we remand for correction of the effective date of Wilson's obligation for college expenses because the judge was mistaken about the daughter's enrollment date.
The parties married on May 20, 1989, and they have one child, a daughter born in June 1990. As early as 1991, Okoshi complained of domestic violence. In August of that year, she obtained a final restraining order, but the order was dismissed on her application in March 1995. In March 2004, Okoshi obtained a second restraining order on a complaint alleging assault and harassment. Her allegations included a claim that Wilson had injured their daughter, and the restraining order permitted Wilson to visit the then thirteen-year-old child under supervision of his sister. Okoshi filed a complaint for divorce in April 2004, and the matter was tried to the court.
Under the final judgment and an amendment to the restraining order, entered in June 2005, Okoshi has sole legal and residential custody of the child; Wilson and his daughter were to attend therapy prior to his visiting or contacting her; and Wilson was obligated to pay $155 child support and $450 alimony per week.
Between entry of the judgment of divorce and the post-judgment motions at issue here, Okoshi filed several motions to enforce the judgment and the restraining order. The restraining order was amended to prohibit Wilson from visiting their daughter's middle and high schools; and Wilson was ordered to remove a letter to his daughter that he had posted on a website. In addition, Wilson was charged with and found guilty of violating the restraining order and, as a consequence, placed on probation.
The motions that gave rise to this appeal were filed in July 2008. Okoshi moved to enforce the final judgment and compel Wilson to contribute to their daughter's college expenses, and Wilson filed a cross-motion to terminate alimony. A plenary hearing was held, and thereafter the judge entered the order challenged here.
Okoshi and Wilson both have college degrees. Okoshi graduated from Tokyo University and Wilson from the Berklee School of Music. Wilson is a self-taught computer programmer and has been employed in that field and as a photographer.
Wilson earns significantly more than Okoshi. In 2006, he earned $135,441 and in 2007 he earned $164,164. Although he has been laid off, the judge found that his unemployment is temporary and Wilson does not dispute that determination. In contrast, Okoshi is employed as a teacher's aide in the Glen Rock Public School System. She earned $23,636 from that job in 2008. With her alimony of $22,500 and some money she earns occasionally assisting autistic children, her total income in 2008 was $47,791.
Wilson's request to terminate alimony was not based on a change in the parties' relative need and ability to pay. He had evidence establishing that Okoshi and a real-estate investor, Steven Macy, use the same address for voter registration - a three-bedroom apartment in a doorman building on New York City's Upper East Side.
Okoshi admitted that she and Macy have lived at the same address since July 2008, but testified that they are landlord and tenant, not cohabitants. According to Okoshi, she and Macy met at a soup kitchen where they both volunteered. Okoshi had told the nun in charge that she needed a place to stay, and the nun told her that Macy needed someone to house sit for him.
According to Okoshi, she wanted a new place to live because Wilson knew her address in New Jersey, and she wanted to live closer to her daughter, who would be enrolling in Pace University.
Macy did not testify, but Okoshi testified about their arrangement and use of the apartment. Macy travels for business and has other places to stay in New York. Out of pity for Okoshi, he offered to let her and her daughter stay in one of the larger bedrooms of his apartment and to use the common areas in exchange for $135 per week in rent and housework such as watering the plants, purchasing food, and collecting the mail. Macy and his daughter stay at the apartment about five times a month. Okoshi had documents to support some of her assertions - a lease signed by her and Macy and receipts for rent she paid in cash. She denied any romantic involvement with Macy and said he does not support her in any way.
Wilson produced Okoshi's American Express statements. They show that she charged $25,436.90 in 2008, an amount approximately equivalent to her total wages. Wilson suggested that the goods and services Okoshi acquired reflected a lifestyle inconsistent with her income and were indicative of the fact that she was receiving additional support from Macy. Specifically, the charges include: $2659.32 for airline tickets; expenditures indicative of travel to Las Vegas, including a stay at the Bellagio hotel; over $3000 in charges for a skin care and nutrition company; $320 spent at the Coach Store; and purchases from Whole Foods and Trader Joe's.
The parties' daughter enrolled in Pace University in Fall 2008, after Okoshi filed the motion to compel Wilson to contribute to the expense. She is studying sociology and has been doing fairly well. She chose Pace because she wanted to be close to Okoshi and liked Pace's small classes. She was on the Dean's List for her first semester and had a cumulative 3.52 GPA at the end of her first year.
Okoshi admitted that neither she nor her daughter consulted Wilson about her college plans or gave him notice prior to the filing of the motion. Okoshi explained that she was afraid of him.
The absence of a meaningful father-daughter relationship is undisputed. Although they participated in individual therapy, reunification was not recommended, and Wilson never sought a court order compelling contact. Despite Wilson's efforts to reach his daughter via a website and through her friends, they have not had contact with each other since 2005.
The child's tuition and housing are approximately $23,000 per semester. In Fall 2008, Okoshi and her daughter paid the $22,522 tuition as follows: a $400 dorm deposit was paid by Okoshi; a $12,000 private loan was taken out by the daughter; she received $6650 in grants from Pace; and Okoshi paid a $100 admission deposit. Okoshi paid the remaining $3372 by taking a personal loan, which she subsequently paid in full. Thus, Okoshi paid $3872 for Fall 2008. In Spring 2009, tuition was $23,435.20. This was paid by: a $12,000 private loan taken out by the daughter; $1841 in Stafford loans; and $6650 in grants from Pace. Okoshi paid the remaining $2944.20 by drawing on her personal loan. In addition, Okoshi paid $2040 for a computer. The parties' daughter works as a lifeguard and swim instructor to contribute to her expenses. She earned $5026 in 2008.
The judge did not believe Okoshi's testimony about her living arrangements, and he found she had concealed her address from Wilson to defeat his efforts to establish her cohabitation.*fn2
In addition, the judge drew a negative inference based on Okoshi's failure to call Macy and her daughter to testify. Based on the spending patterns reflected on Okoshi's American Express bill, which the judge found to be inconsistent with that of a single mother forced to rent a bedroom in a New York City apartment, the judge concluded that Okoshi had "found alternate and substantial additional sources of income and/or support" and no longer required alimony.
With regard to college expenses, the judge found that Okoshi notified Wilson of their daughter's college plans with her July 2008 motion seeking contribution. The judge considered each of the factors relevant to college contributions set forth in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982) and N.J.S.A. 2A:34-23(a). He found that college was appropriate for this bright and motivated young woman, and that Wilson had the ability to contribute towards her expenses and would have done so if the family had remained intact. The judge accounted for the lack of a meaningful father-daughter relationship by charging Wilson with a lesser share of the costs than would be warranted solely on the basis of the parents' respective incomes. He compelled him to contribute $2000 per semester, about one-half the net, out-of-pocket expenses, beginning with the Fall 2009 school semester. The judge did not require a contribution for the 2008-2009 school year because he mistakenly concluded that the daughter had already completed her first year at Pace when Okoshi filed her motion for contribution.
On appeal, Okoshi argues that the judge's findings regarding her cohabitation with Macy and the timing of her motion relative to her daughter's enrollment in college are not supported by the record. She also contends that the judge abused his discretion in requiring Wilson to pay only $2000 per semester.
This court must accept a trial court's determinations about college contributions and alimony if its factual findings are supported by substantial credible evidence in the record and the court has not abused its discretion. Gac v. Gac, 186 N.J. 535, 547 (2006) (application of Newburgh factors is reviewed for abuse of discretion); Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (factual findings of the Family Part must be upheld if they are based on adequate, substantial, credible evidence); Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (finding of changed circumstances relevant to alimony is reviewed for abuse of discretion).
Termination or modification of alimony based on the supported spouse's cohabitation with another is warranted if the new relationship reduces the financial needs of the dependent spouse. Gayet v. Gayet, 92 N.J. 149, 150 (1983). There are two inquiries: one, is there a relationship that amounts to cohabitation, Konzelman v. Konzelman, 158 N.J. 185, 202 (1999); and two, does the supported spouse's new relationship result in "actual economic benefit to the spouse or the cohabitant," Ozolins v. Ozolins, 308 N.J. Super. 243, 245 (App. Div. 1998).
In this context, cohabitation has a particular meaning. Cohabitation is "a domestic relationship whereby two unmarried adults live as husband and wife." Konzelman, supra, 158 N.J. at 202. It is a "close and enduring" relationship that "requires more than a common residence, although that is an important factor." Ibid. It is an "intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage"; these 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." Ibid. Cohabitation is more than a "mere romantic, casual or social relationship" but has "stability, permanency and mutual interdependence." Ibid.
In terms of the evidentiary burdens, a showing of cohabitation "creates a rebuttable presumption of changed circumstances shifting the burden to the dependent spouse to show that there is no actual economic benefit to the spouse or the cohabitant." Ozolins, supra, 308 N.J. Super. at 245.
In this case, the judge did not address the nature of the relationship between Okoshi and Macy under the standards enunciated in Konzelman. The judge simply found that their relationship was not that of a tenant and landlord. Similarly, the judge did not make factual findings that permit us to discern his reasons for concluding that the economic benefit of the relationship to Okoshi amounted to total support. The judge noted that Okoshi's credit card statement reflected expenditures equivalent to her entire annual income. But because the judge did not mention her significant alimony, we assume that he overlooked it when he determined that Macy provided her total support. Accordingly, we conclude that a remand is needed to permit the judge to reassess the evidence in light of Konzelman and Ozolins.
With regard to the parties' daughter's college expenses, we perceive no abuse of the judge's discretion in setting Wilson's contribution at $2000 per semester. Given the family income, the nature of the respective parent-child relationships and Wilson's limited role in selecting a college that costs more than $40,000 per year, we cannot conclude the judge abused his discretion in focusing on expenses after the exhaustion of available loans and allocating the remainder equally. The judge considered each of the Newburgh factors, and we cannot say that his weighing led to a conclusion so erroneous as to warrant our intervention.
We cannot, however, sustain the judge's decision to deny Okoshi reimbursement for the 2008-2009 academic year expenses. It is true, as the trial court recognized, that under Gac, a parent seeking contribution for a child's college expenses should initiate the application before the expenses are incurred. 186 N.J. at 547. But the judge's finding that Okoshi first sought contribution from Wilson after the 2008-2009 academic year is inconsistent with the record. The Pace 2008-2009 academic year began in Fall 2008, and Okoshi made her application for contribution in July 2008. Accordingly, we remand with direction to amend the effective date of Wilson's $2000 per semester obligation to Fall 2008.
Affirmed in part; reversed in part; and remanded. We do not retain jurisdiction.