June 7, 2012
SUZANNE M. PARTENIO, PLAINTIFF-RESPONDENT,
MICHAEL P. PARTENIO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1160-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 21, 2012 --
Before Judges Sabatino and Fasciale.
This case arises out of an ex-husband's claim that his agreed-upon obligation to provide alimony and life insurance benefits to his ex-wife should cease because she is allegedly cohabiting with another woman. The ex-wife denied such cohabitation, asserting that the other woman maintained a separate apartment at the same residential address and that the two of them were not financially dependent upon each other. After considering three days of testimony at a plenary hearing and making detailed credibility findings, the Family Part judge concluded that cohabitation had not been proven.
The ex-husband now appeals, arguing that the judge's determinations were incorrect in various respects. Applying the requisite standard of appellate review and giving due deference to the judge's opportunity to see and hear the witnesses who testified, we affirm.
We briefly summarize the relevant contentions, proofs, and procedural history. Pursuant to the parties' March 2003 Final Judgment of Divorce ("FJD"), the ex-husband, defendant Michael
P. Partenio, agreed to make weekly permanent alimony payments to the ex-wife, plaintiff Suzanne M. Partenio. The alimony sum was based on the projected earnings of the ex-husband and the exwife's Social Security Insurance benefits. The ex-husband also agreed to maintain a life insurance policy and list the ex-wife as a beneficiary on that policy. No child support was awarded, as the ex-husband was given primary custody of the parties' two daughters.
Eventually, the ex-husband fell behind on the alimony payments. His arrears were calculated, and he was ordered to pay certain sums at pre-determined intervals. After he failed to make those required payments, the ex-wife filed a notice of motion to enforce litigant's rights and also to increase her alimony following their youngest daughter's emancipation. The ex-husband cross-moved to terminate his alimony and life insurance obligations retroactively because, he alleged, the ex-wife was cohabiting with another woman ("the other resident") at the same address.
The trial judge preliminarily found, based upon the written submissions, that the ex-husband had made a prima facie showing of cohabitation and set the case down for a plenary hearing. In advance of that hearing, counsel for the ex-husband sought financial discovery from the ex-wife, who was being intermittently represented by counsel.*fn1 The ex-wife turned over some financial records, including certain bank statements, lease documents, and utility bills, but she did not furnish her tax returns and other financial discovery demanded by the ex-husband. The ex-husband consequently moved before the hearing to suppress the ex-wife's defenses to his cross-motion, invoking Rule 4:23-5(a)(1).
At the outset of the plenary hearing, the judge granted the ex-husband a partial sanction because of the outstanding financial discovery. In particular, the judge dismissed the motion of the ex-wife, who was by that point representing herself, seeking the affirmative relief of enforcement of arrears and an increase in alimony. The judge declined, however, to suppress the ex-wife's defenses to the cohabitation issues raised by the ex-husband's cross-motion, instead electing to see how the testimony on those issues developed at the hearing.
The ex-wife testified at length at the hearing. She denied the ex-husband's claim of cohabitation, insisting that she and the other resident maintain separate apartments within the same building and are not financially dependent upon each another. She also denied having a romantic relationship with the other resident. Counsel for the ex-husband vigorously cross-examined her on these matters. He also moved into evidence various documents, which he contended were inconsistent with the exwife's characterization of her relationship with the other resident. The court also heard brief testimony from the parties' daughters,*fn2 both of whom perceived that their mother was cohabiting with the other resident. No other witnesses testified.
After sifting through these proofs, the trial judge concluded that the
ex-husband ultimately had not met his evidential burden of
establishing cohabitation, despite the prima facie showing that had
been indicated earlier by the pre-hearing submissions.*fn3
In her written opinion, the judge made detailed findings that
the ex-wife's testimony was credible and that the conflicting
testimony of the daughters was not. The judge noted that it was
"abundantly evident" from the ex-wife's demeanor that "she suffers
from cognitive difficulties." Nevertheless, the judge was impressed
with the sincerity of the ex-wife's assertions. Among other things,
the judge found that:
[a]lthough befuddled during some of her testimony, the [c]court found [the ex-wife] to be credible and sincere based upon her demeanor; lack of hesitation when responding to questions; and consistency during her impassioned testimony. She was never hesitant or anxious while on the witness stand, which leads the [c]court to conclude that she was truthful.
More specifically, the judge found that the ex-wife had "clearly and convincingly explained that there are two  big studio apartments" at the ex-wife's address and that there are two separate leases for those apartments. The judge also found that the ex-wife had "rationally and logically explained, in spite of her diminished faculties," that she and the other resident were not in a romantic relationship or in a domestic partnership with each other. Instead of being in a "marriage-like" relationship, the judge found that the ex-wife and the other resident are friends who rely upon each other to complete normal, everyday tasks.
The judge also found, by clear and convincing evidence, that the ex-wife was not receiving economic benefits from the other resident. The judge acknowledged that the ex-wife had become confused about certain financial questions posed to her on the witness stand. Nonetheless, the judge found her to be sincere in her presentation, noting that the ex-husband did not testify and assert that his former spouse was "disingenuous or faking her disabilities."
By contrast, the judge found that the parties' daughters were not credible witnesses. Specifically, with regard to the older daughter, the judge concluded that "[i]t was obvious based upon [her] demeanor and flippant responses, that she was biased against the [ex-wife.]" The judge also found the testimony of the younger daughter to be "replete with contradictions." The judge found that she likewise was not a helpful witness and "disregard[ed] her testimony in its entirety."
On appeal, the ex-husband argues that the trial court's denial of his cross-motion should be reversed for three reasons. First, he contends that he was deprived of additional financial discovery and that the judge abused her discretion in not suppressing the ex-wife's defenses to the cohabitation claim as a corresponding sanction. Second, he asserts that the judge orally misstated the applicable burdens of proof during the course of the plenary hearing and that the judge's ultimate correct recitation of those burdens in her written opinion did not ameliorate her prior mistake. Third, the ex-husband maintains that the judge's findings were against the weight of the evidence. Before we address these discrete points, we briefly refer to the applicable legal principles regarding cohabitation.
It is well-settled that the ordinary standard for modifying support post-judgment under Lepis v. Lepis, 83 N.J. 139, 149-53 (1980), is "changed circumstances." See generally Donnelly v. Donnelly, 405 N.J. Super. 117 (App. Div. 2009) (explaining the Lepis requirements). Unless the parties' divorce judgment or property settlement agreement specifies otherwise, an exspouse's cohabitation, coupled with a change in his or her economic needs, can serve as such a "changed circumstance" and warrant modification of alimony. Gayet v. Gayet, 92 N.J. 149, 154-55 (1983). Specifically, modification is appropriate where "(1) the third party [cohabiter] contributes to the dependent spouse's support, or (2) the third party resides in the dependent spouse's home without contributing anything toward the household expenses." Id. at 153. Here, the parties' FJD is silent on these issues, so the following general principles apply.
Once an ex-spouse seeking to modify or terminate alimony makes a prima facie showing of the alimony recipient's cohabitation, the burden of proof shifts to the recipient to prove that he or she is not deriving any economic benefit from the cohabiting third party. Ozolins v. Ozolins, 308 N.J. Super. 243, 248-49 (App. Div. 1998); see also Frantz v. Frantz, 256 N.J. Super. 90, 92-93 (Ch. Div. 1992). Those economic issues frequently turn upon financial information that has been sought from and provided by the supported ex-spouse in discovery.
These issues of cohabitation and financial interdependency are often not amenable to resolution on the papers. Instead, the Family Part frequently must conduct a plenary hearing to evaluate the credibility of the parties' contentions, provided that the movant has at least made a preliminary showing on the papers of a prima facie claim of cohabitation. Cf. Lepis, supra, 83 N.J. at 159. In reviewing such credibility-laden decisions, we accord substantial deference to the judge's factual findings and to the expertise of the Family Part. Cesare v. Cesare, 154 N.J. 394, 413 (1998).
Bearing these principles in mind, we reject the exhusband's first contention that he is entitled to a new hearing because the judge did not suppress the ex-wife's defenses on the cohabitation issues after she committed discovery violations. Rule 4:23-5(a)(1) does not mandate that trial courts suppress delinquent parties' pleadings and defenses in all instances where discovery has been incomplete. Instead, the Rule allows the trial court to withhold a sanction where "good cause for other relief is shown." R. 4:23-5(a)(1). The trial court maintains the discretion to award such "other relief," in lieu of suppression or dismissal, if there is good cause to do so. Cf. Adedoyin v. Arc of Morris Cnty., 325 N.J. Super. 173, 182 (App. Div. 1999).
Here, the judge reasonably chose to respond to the exwife's insufficient production of financial discovery by dismissing her affirmative motion for enforcement and an increase in the monthly alimony level. The ex-husband has not demonstrated that the judge abused her discretion in selecting that intermediate sanction, and in not going further and suppressing the ex-wife's defenses to his own cross-motion. We have no warrant to interfere with that measured decision, particularly given the deference that appellate courts generally owe to the trial bench on discovery sanctions. See Gilbert v. Electro-Steam Generator Corp., 328 N.J. Super. 231, 236 (App. Div. 2000). Moreover, we discern no significant prejudice to the ex-husband flowing from the lack of additional financial discovery because the trial court's finding that there was no proven cohabitation serves as a sufficient basis for denying the cross-motion, regardless of the strength or weakness of the proofs of financial dependency.
Second, we reject the ex-husband's claim that he is entitled to reversal because the judge orally misstated the applicable burdens of proof during the course of the plenary hearing. The judge corrected her earlier misstatement in her final written decision. At oral argument before us, the exhusband's counsel was unable to identify any additional or different evidence that he would have presented at the plenary hearing had the judge correctly stated the proof burdens during the proceeding.
Lastly, we are unpersuaded that this case represents a rare instance where the Family Part judge's factual findings must be set aside as against the weight of the evidence. As we have already noted, the scope of appellate review of the trial court's factual findings is limited. This court will not disturb the trial court's findings unless they are demonstrably lacking substantial, credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). We must give due regard to the trial judge's credibility determinations and feel for the case based upon the opportunity of the judge to see and hear the witnesses. Cesare, supra, 154 N.J. at 411-12; Pascale v. Pascale, 113 N.J. 20, 33 (1988). The judge's findings as a whole are sufficiently supported by the record and the judge's detailed credibility assessments to be left undisturbed.*fn4