On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. FM-02-757-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Nugent and Carchman.
Following the denial of post-judgment relief, plaintiff William Bischoff appeals from the denial of his motion to (1) terminate alimony to his former wife, defendant Diane Bischoff; (2) retroactively modify child support to the date when the parties' two eldest children moved to plaintiff's residence; and (3) require defendant to contribute to the children's education expenses. We affirm.
The parties married in 1985 and divorced on January 24, 2006, pursuant to a dual final judgment of divorce (JOD), which incorporated a Property Settlement Agreement (PSA) of the same date. The comprehensive and fully integrated agreement resolved the issues then in dispute between the parties, including the issues raised on the post-judgment motion filed by plaintiff.
The parties had four children: Katelyn, twenty-four; Connor, twenty-one; Tyler, nineteen; and a fourteen-year-old son.
During the marriage, defendant was a full-time mother and homemaker. In January 2010, plaintiff was employed as the vice chairman in the investment banking department of First Horizon Bank National. Sometime in early 2010, during the pendency of the plenary hearing, plaintiff was laid off from his position with the bank. He indicated that his wages in 2008 were $728,993.21, and at the time of the hearing, he was "currently employed without an income."
We now set forth the facts adduced at the plenary hearing on plaintiff's various applications for relief.
Pursuant to the PSA, plaintiff provided alimony to defendant in the amount of $153,900 on the first $600,000 of his annual gross earned income, and an additional one-third of the remaining $650,000 of his income. Plaintiff's gross earned income, for purposes of determining alimony, was capped at $1,250,000 for 2008, and $2,000,000 for 2006 and 2007. The agreement defined gross earned income as "income . . . from any source including pretax income such as restricted stock and deferred income for that calendar year on an after tax basis[.]" Permanent alimony payments consistent with this formula were required "for the joint lives of the [parties], or for so long as the Wife shall not remarry, or cohabitate with an unrelated person in a relationship akin to marriage."
Plaintiff sought to terminate his alimony obligation based upon defendant's alleged cohabitation with her paramour, Thomas Walsh. Defendant sought alimony arrears in the aggregate amount of $55,490, which amount was not disputed.
During 2003, the parties agreed that Walsh, a contractor, would renovate their marital home. The work was completed in 2004, to the parties' satisfaction. Thereafter, the parties agreed to engage Walsh as the general contractor to renovate and remodel a speculation home in Allendale. According to defendant, she began dating Walsh in "August or September" 2005.
Walsh testified that he developed a "deep, personal relationship" with defendant. Walsh and defendant spent holidays together, including Christmas, Thanksgiving, and Easter, and attended their children's sporting events together.
Walsh and defendant vacationed together numerous times, sometimes with defendant's children, and sometimes including Walsh's children. For example, they stayed at defendant's parents' shore property and shared ski trips in Utah. According to Walsh, defendant typically paid for accommodations on her credit card, and he would reimburse her for some expenses. Walsh usually paid for plane tickets. They "absolutely" tried to share expenses.
Walsh and defendant shared no joint bank accounts, nor have they commingled funds for investment purposes. In 2008, Walsh supervised the installation of a pool at defendant's residence. He was not monetarily compensated. The permit request form listed him as the general contractor. Defendant paid various companies, none of which involved Walsh, a total of $73,397.93 for the pool's installation. According to defendant, Walsh advised her and may have saved her "some time and some money by recommending people" for installation of the pool.
In addition, defendant noted that, on occasion, she asked Walsh to perform various household chores such as decorating her house for Christmas, collecting the garbage cans on the weekends, and fixing the fence. Walsh denied putting the garbage cans out for disposal.
Both Walsh and defendant indicated that Walsh has maintained his own residence in an apartment located in Mahwah since August 2005, when he separated from his former wife. That address appears on his driver's license and voter's registration card. He does not receive mail at defendant's residence. According to Walsh, on the weekends, he "usually" slept overnight at defendant's residence, but "rarely" during the week. According to defendant, Walsh stayed over "[g]enerally every weekend and sometimes one night during the week." He brought his own toiletries in his gym bag, and sometimes did his laundry at defendant's home. He prepared meals for himself with his own groceries at defendant's house on occasion, but "[would not] deny" others food if asked.
At her de bene esse deposition, Katelyn observed that Walsh would "come and go," and kept "a few items of clothing" at defendant's residence and had his laundry done there.
During his de bene esse deposition, Connor indicated that Walsh lived in defendant's residence as of December 2006, when Connor moved into plaintiff's residence, and was there "most nights." Walsh was there when Connor "went to sleep," and would "very often be there in the morning." When challenged, Connor indicated that during his visits to defendant's residence once or twice per week between December 2006 and the spring of 2007, Walsh was at the residence in the morning during approximately half of his visits.
Connor took photographs of Walsh's clothing and toiletries in defendant's residence. Also, Walsh kept tools and equipment in defendant's garage.
Walsh did not have a key to defendant's home, but he did know the access code to the garage. On one occasion, he went to defendant's residence with his son to pick up one of his cars and suspected that a party was in progress. Defendant was not home. He proceeded to enter the house, and found Katelyn asleep on a bed. He stayed for "quite awhile and made sure the kids left."
Plaintiff hired detectives from Murphy & Associates to perform surveillance of defendant's residence. Between January and April 2008, out of approximately fifty weeknights of surveillance, one of Walsh's four vehicles was parked in defendant's driveway forty-four times. Walsh certified that, for approximately two months, he left one of his vehicles in the driveway because he "lost the electronic car key" and had difficulty obtaining a new, "properly program[m]ed" key. According to defendant, Walsh left one of his trucks in her driveway for extended periods of time because he completed work for several of her neighbors and "it's just easier [to] leave the one truck in [her] driveway." When Walsh stayed overnight, two of his cars were typically parked in her driveway.
Various neighbors and friends provided testimony about Walsh's presence at defendant's home with consistent testimony that he spent extensive time at the premises, parked his cars there and demonstrated an affection for defendant, reflecting an ongoing relationship between the parties.
Plaintiff also sought relief from his child support obligation as it applied to both Connor and Katelyn.
The parties shared joint custody of the children; defendant was the primary custodial parent. Under the PSA, plaintiff paid child support to defendant in the amount of $106,000 annually ($8,833.33 monthly) for the four unemancipated children. The agreement included a provision for reduction of child support based upon each child's emancipation, defined as when each child reached "the age of [eighteen] years and the earliest occurrence" of one of the following events: graduation from high school or vocational school, unless the child immediately attends college full-time; graduation from college; full-time employment; marriage; death; or military service. The PSA specifically explained that "[t]here shall be no reduction in support as a result of a child(ren) being enrolled in college and living away from Wife's residence. Only upon emancipation shall the reduction apply." The agreement does not address adjustment in child support predicated upon a child's change of residence.
Defendant certified that she agreed with Connor, in December 2006 during his Christmas break from high school, that "he would stay with his father, for what [she] had understood to be a brief period of time during which his father would straighten [Connor's behavioral problems] out somewhat." However, Connor continued to reside with plaintiff, only returning for visits with defendant. Connor had not resided in defendant's residence since January 2007. According to Connor, he gave defendant an ultimatum in December 2006: "either have [Walsh] over less or I'm going to move out." Because Walsh continued to frequent the residence, Connor moved in with plaintiff in December 2006.
Plaintiff indicated that defendant agreed that Connor would reside with him beginning in December 2006. At that time, Connor was dropped off at his apartment "with all of his possessions in torn boxes." According to plaintiff, he ...