On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-729-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Hayden and Accurso.
In this post-judgment matrimonial matter plaintiff Eric Gould appeals from the March 7, 2011 Family Part order denying his motion to terminate or modify alimony based upon his claim that defendant Robin Gould was cohabitating with a third party. For the reasons that follow, we affirm.
The parties were married in 1995 and divorced in 2009 by dual judgment of divorce, which incorporated their Property Settlement Agreement (PSA). They have three minor children.
The PSA requires plaintiff to pay defendant limited duration alimony in gradually decreasing amounts until 2019. Paragraph 4.1 of the Agreement provides, "In the event of Wife's cohabitation, the Husband may, at his option, make all appropriate applications to the Court to have alimony terminated in accordance with the then existing law of this State."
On January 25, 2011, plaintiff filed a motion requesting termination or modification of his alimony obligation based upon defendant's cohabitation with her boyfriend, M.J.,*fn1 or in the alternative, permitting discovery with respect to cohabitation. Plaintiff acknowledged that he was aware defendant was involved with M.J. since 2008, prior to the divorce. He alleged that M.J. had a "sham residence" but spent most of his time at defendant's house. M.J. kept a closet full of clothes there, assisted with the children and household chores, and went on vacation with the children. Plaintiff, by looking into defendant's mailbox, found a piece of mail addressed to M.J. at defendant's address.
In addition, plaintiff hired a private investigator to conduct surveillance of M.J. The surveillance consisted of six observations of defendant's home. According to the investigator, M.J. was at defendant's residence at least part of every night and stayed for the entire night on three nights when the children were with plaintiff.
Defendant acknowledged a romantic relationship with M.J. but denied cohabitating with him. She admitted that he kept some clothes at her house, mainly exercise clothes so he could use her exercise equipment. M.J. also had vacationed with defendant and the children, and occasionally he took the trash out and helped with the children. Nevertheless, defendant maintained that he does not live in her home, they do not have a marital-type relationship, he paid none of the household bills, and their finances were separate. Defendant claimed that plaintiff only brought this motion to harass her.
The trial court denied the motion pertaining to cohabitation, reasoning as follows:
Here, the court has before it, proof that Defendant's boyfriend stayed overnight at Defendant's residence three nights (when the children were at Plaintiff's home) and that the boyfriend left before the next morning on the other three nights when the parties' children were with her. There is no question but that the investigator did not follow the boyfriend once he left Defendant's residence. There is also no proof, as Plaintiff suggests, that the boyfriend maintains a "sham residence." The court cannot find on the basis of the investigator's report, or the proofs in Plaintiff's pleadings that Defendant and her boyfriend share a common residence, nor that they share other indicia of a marital-type relationship. The court is not persuaded that Defendant taking vacations with Mr.
M.J. or one piece of mail being addressed to him at Defendant's home is sufficient to bolster Plaintiff's argument of cohabitation.
The judge also found that defendant did not present a prima facie case of cohabitation entitling him to discovery and denied his motion without prejudice, "due to ...