On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1202-95.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 19, 2012 -
Before Judges Fuentes, Harris and Koblitz.
Plaintiff William Arthur Clayton*fn1 appeals from a March 9, 2011 order denying his application to terminate his alimony obligation. The motion judge instead reduced plaintiff's alimony obligation to his former wife, defendant Susan Clayton, after finding that her cohabitation with a male acquaintance and the attendant economic support she received constituted a change in circumstances sufficient to justify a reduction of her monthly alimony support from $2300 to $1426.*fn2 William argues on appeal that the cohabitant's financial support, coupled with Susan's income, represent a change in circumstances warranting termination of alimony. He alternatively argues that the relationship between Susan and her cohabitant is tantamount to marriage and, for that reason, should result in a termination of his alimony obligation. After reviewing the record in light of the contentions advanced on appeal and the reasons expressed by the judge, we reverse and remand for further proceedings. We leave to the judge's discretion whether additional testimony is required.
The parties were married in July 1970. Four children were born of the marriage, all of whom were emancipated at the time of the divorce. The parties separated in 1994, after which Susan lived in a two-bedroom apartment in Rockaway, New Jersey. Around the time of the separation, the couple entered into a property settlement agreement (PSA), which contemplated a monthly payment to Susan of $2000 per month for twenty years.
At the time of both the separation and the subsequent divorce, Susan was suffering from various mental health disorders. As a result, she received social security disability payments of $389 per month.
Due to Susan's disabilities, the court appointed a guardian ad litem (GAL) in February 1996 to evaluate whether the PSA proposed at the time of separation in 1994 was equitable to Susan. The GAL opined that Susan's disorder rendered it highly unlikely that she would become "income productive and self-sufficient." The GAL found the $2000 monthly alimony award "favorable" to Susan, but recommended that she not be held to the agreement because of "the length of the marriage, the disparity in the parties' historical earnings," Susan's needs, her inability to earn an independent living, and "other inequities in the balance of the [PSA]."
Ultimately, the parties agreed that William would pay Susan $2300 per month, or $27,600 a year, in permanent alimony. The agreement did not address cohabitation. The parties divorced in 1997.
Susan met Stuart Vreeland in 1995. She testified to an emotional connection, which culminated in an exclusive relationship beginning in 1999. In 2001, Susan purchased a townhouse with her retirement savings, which significantly increased her living expenses. Vreeland moved into the townhouse in 2002. As of when Susan filed her reply brief in this appeal in September 2011, Vreeland continued to live with her at her townhouse. Susan testified that she and Vreeland are no longer romantically involved and have separate bedrooms. After hearing Susan's testimony, however, the motion judge concluded it was "apparent that they behave as a couple providing both emotional and financial support" for one another.
As of the time of the hearing in January 2011, Vreeland had given Susan more than $40,000, which she characterized as primarily a series of loans, although neither the disbursement of funds nor the terms of repayment were memorialized in a written document.
By Susan's own account, Vreeland also paid Susan a total of more than $97,000 in monthly contributions between May 31, 2002, and April 1, 2010. Vreeland currently pays Susan a fixed amount of $1400 per month, he provides her additional money when she needs it, and he performs routine repairs around the home. She pays for groceries and cooks Vreeland's meals.
In addition, Susan is employed. She received a certificate in graphic design in 1996. In spite of the wording of the GAL's report indicating an inability to work, Susan claims she began working prior to the judgment of divorce in 1997. Susan testified that she earned almost $29,000 in 2008 and $27,100 in 2009. William earned approximately $74,000 in 1995 and more than $139,000 in 2009.
The judge found that Susan's cohabitation with Vreeland and his attendant economic support constituted a change in circumstances sufficient to justify a reduction of her monthly alimony downward from $2300 to $1426, a reduction of thirty-eight percent. The modification was made retroactive to the filing date of William's motion. The judge denied all other relief requested without considering either ...