HARVEY N. KAREN, Plaintiff-Respondent,
LINDA KAREN, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 22, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-0605-97.
Jacobowitz & Defino, P.C., attorneys for appellant (Benjamin M. Hoffman, on the briefs).
Jeanette Russell, attorney for respondent.
Before Judges Sabatino and Maven.
Defendant Linda Karen (Linda) appeals from a post-judgment order of the Family Part terminating plaintiff Harvey Karen's (Harvey) alimony obligation on the basis of her cohabitation. Karen asserts error in not ordering a period of discovery and a plenary hearing. We agree and remand for further proceedings.
We discern the following facts and procedural history from the record on appeal. Harvey and Linda were married in October 1974. They have two sons, both of whom are emancipated. A dual final judgment of divorce was filed on February 10, 1998, which incorporated a property settlement agreement (PSA), dated December 16, 1997.
Pursuant to the PSA, Harvey was required to pay alimony of $2500 per month. The PSA also provided in Article V, Paragraph 5.3 that: "The husband's alimony obligation to the wife shall cease upon her remarriage, the wife[']s death or [the] husband[']s death." Harvey was also required to maintain life insurance in the amount of $125, 000 naming Linda as beneficiary, even after alimony has terminated.
In September 2011, Harvey filed a motion for retroactive termination or modification of his alimony obligation effective from the commencement of cohabitation between Linda and her paramour; financial discovery from Linda; and payment of Harvey's counsel fees and costs.
Harvey alleged that Linda had been cohabiting with the paramour since 2001 in a home in Florida that they jointly own. He proffered that they have a joint bank account, share club memberships, take "family" vacations with the parties' children, and hold themselves out as an established couple. He argues that the evidence supports the conclusion that Linda and her paramour reside together in a relationship akin to marriage necessitating the immediate termination of his alimony obligation.
Alternatively, he argues that Linda's cohabitation with the paramour constitutes a prima facie showing of changed circumstances that warrants a modification or termination of his alimony obligation. He requested a period of discovery to permit him to ascertain the degree of financial interdependence between Linda and the paramour, and the degree to which any such financial interdependence obviates the need for all or part of his alimony payment. He maintained that having established the existence of the cohabitation, the burden shifts to Linda to establish the financial impact of the relationship. Harvey also asserted that he has suffered from herniated disks since 2000. This medical condition has ...