On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-102-98B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 31, 2011
Before Judges Kestin and Newman.
Plaintiff Maria Proctor (n/k/a Pizzuti) appeals from a post-judgment order terminating permanent alimony of $100 per week by reason of changed circumstances due to cohabitation. The trial court denied counsel fees for either party. By way of a "defensive" cross-appeal, defendant Paul Proctor appeals from the denial of his application for retroactive modification of the termination to 2005 instead of from when his motion for termination was filed on September 29, 2009.
The relevant facts are as follows. Although defendant submitted an abundance of proof to demonstrate cohabitation between plaintiff and Ronald Argenzio, showing that they held themselves out as a married couple, the issue of cohabitation was not contested. In her certification, plaintiff admitted the following: "I will spare the Court the trouble of scheduling a plenary hearing because I admit that I do cohabitate with Mr. Argenzio at his home, located [in] Ramsey, New Jersey and have been since 1999." Thus, the focus of the hearing on the motion to terminate alimony was on the economic interdependence between plaintiff and Mr. Argenzio.
Plaintiff had increased her earnings of approximately $13,900 at the time of the divorce in 1998 to earning approximately $30,000 working part-time, according to the current Case Information Statement (CIS) she submitted to the trial court. She was receiving $900 per month of pension income from one of her former spouse's I.B.E.W. defined benefit funds as a result of the divorce. Plaintiff admitted to $1,400 per month, attributable to Mr. Argenzio, which she alleged it would have cost her to rent an apartment in Ramsey.
Defendant also established that plaintiff lives in two locations with Mr. Argenzio, a home in Ramsey, which is assessed at $472,800, and a condominium in Hollywood, Florida, purchased for $460,000, which has no mortgage. The condominium is titled in both plaintiff's and Mr. Argenzio's names with a right of survivorship. Defendant further showed that they have several jointly-titled bank accounts, that alimony checks were deposited on occasion in Mr. Argenzio's account, and they had at least one joint brokerage account titled as joint tenants. Defendant also pointed out that plaintiff took a vacation in Italy in 2004; a cruise to Hawaii in April 2005; a vacation in the Caribbean in Spring 2006; a vacation in Napa, California; a trip to Aruba in 2007; and a vacation in New England in 2008. According to plaintiff's CIS, she spends only $50 per month for vacations. Plaintiff largely did not respond to these various items in her responding certification.
It was also brought out that defendant earned $69,000 at the time of the divorce to support a family of four, which included two daughters, now married and emancipated. Against this background, Judge Mary C. Jacobson addressed the economic interdependence between plaintiff and Mr. Argenzio in the following specifics:
But Mr. Proctor has also proved that there is economic inter-dependence between Ms. Pizzuti and Mr. Argenzio. And in fact, Ms. Pizzuti has admitted to some of that economic inter-dependence. She has estimated a credit of $1,400 for living in Mr. Argenzio's house in Ramsey.
But the couple also own property together in Florida. The representation was made on the record today that there is no mortgage on the property, except for it's a joint purchase. So there they are again, you know, as a couple, behaving as a married couple, not technically married, but behaving as a married couple, which is one of the things that the Court looks to. They bought property together.
And they have joint accounts together. The joint account that was -- some of the accounts, I think the Regents Bank, for example, and Hudson Bank. And they've taken numerous vacations together.
And then the question is, is that economic inter-dependence such that it is appropriate for the Court to terminate the permanent alimony award. We have to look at the economic circumstances. We know that Ms. Pizzuti is making $30,000 a year salary. This is more than what she was making at the time of the final judgment of divorce. So there's been a change. You know, to her credit, she's done this. And as a result of the modifications to the final judgment, she is receiving a hundred percent of the pensions currently in pay status, in which she garners over $10,000 a year, which is more than, and I believe it's more than double or close to double what the permanent alimony award is. And she has some additional unearned income, you know, interest from the bank accounts and things of that nature.
And some of this, the salary and the pension is undisputed. And then there were further proofs provided by the plaintiff to show that she had this additional income. There was the Ramsey home, as I mentioned, that she shares with Mr. Argenzio, although I don't think there's any payment, but she does accept the credit, which would be added to the $40,800. You add the, you know, the credit. And it seems to me that she is having a ...