On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-1348-04-W.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Payne and Hayden.
In this post-judgment matrimonial matter, plaintiff John Anthony LaMagra appeals provisions of the order dated April 30, 2010, denying his motion to modify or terminate alimony payments. For the reasons that follow, we remand for a plenary hearing on the issues of cohabitation and fraud.
Plaintiff John Anthony LaMagra and defendant Deborah LaMagra were married on June 5, 1983. On March 30, 2005, a Final Judgment of Divorce, which incorporated the parties' Property Settlement Agreement ("PSA"), was entered. The PSA provided for defendant to receive alimony payments of $450 per week "until the earlier of the death of either party or the remarriage of the Wife, or by operation of New Jersey Law." At the time that the PSA was executed, plaintiff knew that defendant was residing with her paramour Karen Hanson but agreed to pay permanent alimony believing that the arrangement was temporary. Under the PSA the husband could make a motion to modify or terminate alimony "based upon the living arrangements of the Wife."
On March 22, 2010, plaintiff filed a motion to reduce or terminate his alimony payments on the grounds that defendant was cohabiting and that she had obtained the alimony award by fraud or misrepresentation. One month prior to the divorce, defendant had submitted a certification stating that her paramour was a student from England temporarily in the United States on a two-year student visa who was unable to work for at least one year. Defendant also certified that, because of difficulties in the relationship, her paramour planned to return to London shortly.
Plaintiff stated that he relied upon this certification in agreeing to pay alimony.
Plaintiff asserted in the motion papers that he had only recently learned that the information concerning the paramour was false. After hiring an investigator in 2009, plaintiff received information that the paramour had been employed by FSI Ltd. from July 16, 2001 until May 2009. For the motion, he produced reports from the investigation and a certification from FSI Ltd.
The investigator also reported that defendant's paramour had lived in the marital home from 2004 until July 2009, when she rented an apartment in Woodbridge to be closer to her new job. Additionally, the investigator reported the paramour still spent weekends at defendant's home, and the defendant spent a substantial amount of time during each week at the paramour's apartment. Plaintiff also claimed that defendant provided her paramour with a vehicle and automobile insurance. The investigator noted that the couple used their two vehicles interchangeably.
Defendant denied lying about the seriousness of her relationship with her paramour at the time of the divorce. Defendant asserted that at that time their relationship was in fact temporary, but it changed shortly thereafter. Defendant further denied that she was still cohabiting with her paramour. Defendant stated that both she and her paramour had always paid their own bills. She admitted helping her paramour obtain a car because she could not qualify for a loan. Defendant rejected as false plaintiff's claim that he had only recently learned of the paramour's continued residence in the former marital home until 2009. She alleged that she and her paramour had openly been a couple for many years and had frequently been together at events for the children when plaintiff was present.
On April 30, 2010, the motion judge entered an order denying plaintiff's motion. The judge found that plaintiff had not made out a prima facie case for cohabitation as defendant and her paramour had ceased living together for over one year. The judge also denied plaintiff's motion to terminate the PSA ...