NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 7, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-354-07.
Ari H. Gourvitz argued the cause for appellant (Gourvitz & Gourvitz, LLC, attorneys; Mr. Gourvitz and Elliot H. Gourvitz, and on the briefs).
Roy David Sullivan, respondent, argued the cause pro se.
Before Judges Lihotz and Ostrer.
Following a plenary hearing, a Family Part judge concluded the cohabitation clause of the parties' property settlement agreement had been triggered by plaintiff April Lajune Sullivan's relationship with Stephen, and ordered defendant Roy David Sullivan relieved of his obligation to pay alimony. Plaintiff's motion for reconsideration was denied and she appeals. Following our review we conclude the trial judge erred as a matter of law, and reverse.
We limit our recital of the facts to the issues on appeal. The facts are taken from the record of the plenary hearing.
The parties were divorced after nearly sixteen years of marriage. They have four children, two of whom were emancipated at the time the parties divorced. Under the terms of a property settlement agreement, defendant agreed to pay plaintiff alimony of $385 a week for ten years, then $230 per week thereafter. The terms of the agreement further provided alimony would terminate upon the happening of: 1) either party's death; 2) plaintiff's remarriage; or 3) defendant's retirement at age sixty-five. The agreement also included a cohabitation clause affecting the continuation of alimony, which stated:
In the event the Wife cohabits with an unrelated male in a relationship tantamount to marriage, the Husband shall have the right to pursue a post[-]judgment application pursuant to applicable [c]ase [l]aw[, ] including but not limited to Gayet v. Gayet, 92 N.J. 149 (1983) and Ozolins v. Ozolins, 308 N.J.Super. 243 (App. Div. 1998).
The final judgment of divorce, incorporating the parties' property settlement agreement, was filed on May 7, 2007. Over the next three years, several post-judgment motions were filed, addressing various enforcement or modification issues. Plaintiff also filed a complaint pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, and a final domestic violence restraining order was entered, which included provisions restraining defendant from all contact and communication with plaintiff, enjoining him from future acts of domestic violence, and removing him from the former marital home, granting plaintiff its exclusive possession.
On September 14, 2010, defendant filed a motion, which included a request to terminate or modify his obligation to pay alimony, because plaintiff was cohabiting with Stephen. Prior to filing his motion, defendant had stopped his alimony payments, claiming Stephen moved into the former marital residence once defendant was restrained by the PDVA order. Defendant principally supported his request by certified statements from the two emancipated children, Roy and Reggie. The brief certifications, one of which was four paragraphs, the other merely three, contained nearly identical statements, including: at the time defendant was removed from the home based on the PDVA order, "my mother's boyfriend, Stephen[, ] moved into the residence"; "[o]n average, I estimate . . . he stayed there approximately four to five (5) nights per week"; Stephen "had his own personal key to the home to come and go as he pleased"; "[h]e stayed in our mother's room"; and "[h]e had all of his clothes at the home[.]" Finally, the certifications stated Roy and Reggie had a disagreement with Stephen in September 2009, Stephen changed the locks, and they were no longer welcome to reside in the home.
Plaintiff filed a cross-motion for enforcement of litigant's rights, supported by counsel's certification identifying various documents that focused on financial issues, including defendant's failure to satisfy previously ordered obligations regarding the former marital home. Counsel attached prior court orders showing Stephen and his mother, Barbara, had purchased the former marital home on February 22, 2010, which he argued explained his right to change the locks and have a key.
A Family Part judge considered the arguments on October 22, 2010. Although the judge denied defendant's request to terminate alimony, he relied on Roy's and Reggie's certifications and Stephen's ownership of the residence and concluded defendant had established a prima facie case of a substantial change in circumstances warranting a modification of his alimony obligation. The judge set a discovery schedule and ordered discovery and a plenary hearing to be scheduled in January 2011.
On May 27, 2011, plaintiff moved to reverse the provision of the October 22, 2010 order temporarily suspending alimony. Plaintiff suggested Roy's original certification was provided in exchange for a car purchased for him by defendant, and noted Reggie's more recent certification attacked the authenticity of his initial certification, recanted its contents, and averred the document was created by defendant. Defendant cross-moved, denying he induced Roy and Reggie to file false statements and asserting Reggie's new certification was "a complete and utter lie." He attached purported handwritten statements from which the original ...