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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...