March 13, 2019
appeal from an interlocutory order of the Superior Court of
New Jersey, Chancery Division, Family Part, Morris County,
Docket No. FM-14-1196-12.
Duchin Haber argued the cause for appellant (Haber Silver
& Simpson, attorneys; Karin Duchin Haber, of counsel;
Carole A. Hafferty, on the briefs).
H. Sobel argued the cause for respondent (Greenbaum, Rowe,
Smith & Davis LLP, attorneys; Mark H. Sobel, of counsel
and on the brief; Barry S. Sobel, on the brief).
Judges Fuentes, Accurso and Vernoia.
question presented by this appeal, here on leave granted, is
whether the changed circumstances standard of Lepis v.
Lepis, 83 N.J. 139, 157 (1980), continues to apply to a
motion to suspend or terminate alimony based on cohabitation
following the 2014 amendments to the alimony statute,
N.J.S.A. 2A:34-23(n). We determine the party seeking
modification still has the burden of showing the changed
circumstance of cohabitation so as to warrant relief from an
alimony obligation, see Martindell v. Martindell, 21
N.J. 341, 353 (1956), and hold the 2014 amendments to the
alimony statute did not alter the requirement that "[a]
prima facie showing of changed circumstances must be made
before a court will order discovery of an ex-spouse's
financial status." Lepis, 83 N.J. at 157.
Because the trial court ordered discovery in this case
without a prima facie showing of changed circumstances, we
David Scott Landau and defendant Stacy Landau were divorced
in 2014 after an almost eleven-year marriage and three
children. Pursuant to the marital settlement agreement
incorporated into their judgment of divorce, which was
entered after the effective date of the 2014 amendments to
the alimony statute,  the parties agreed that defendant would
receive limited duration term alimony.
agreed to pay defendant $44, 000 per month for the first
three years, until September 2017, and $40, 000 per month for
the next four-and-a-half years, until March 2022. The parties
agreed alimony would terminate on the death of either party,
defendant's remarriage or March 31, 2022, whichever first
occurs. The agreement further provides that
"[n]otwithstanding anything contained herein to the
contrary, the Wife's cohabitation as defined by
then-current statutory and case law shall be a basis for the
Husband to file an application seeking a review and potential
modification, suspension or termination of alimony pursuant
to New Jersey law."
December 2017, plaintiff moved to terminate, suspend or
modify alimony based on defendant's cohabitation with the
man plaintiff alleged defendant had been seeing exclusively
for over a year. Plaintiff filed a certification in support
of the motion alleging the two had traveled together,
attended social activities as a couple and posted photos and
accounts of their activities on social media sites. Plaintiff
alleged the man engaged in many activities with the
parties' children and regularly slept over at
defendant's home, as she did at his home. Plaintiff
claimed the man attended events he used to attend with
defendant, including family birthday dinners with her
parents. He further claimed the man attended the Bar Mitzvah
of one of the parties' sons and was seated next to
defendant in the position of honor for a parent of the child
being Bar Mitzvahed. At the celebration afterwards, plaintiff
alleged defendant publicly acknowledged the man and their
relationship in her speech. He also claimed defendant told
him she moved her brokerage accounts to the firm where the
man works and got a "friends and family discount."
opposed the motion and cross-moved to restrain plaintiff from
harassing her and sought her counsel fees for having to
defend a motion without "even prima facie support."
Defendant filed a certification averring that having a
boyfriend does not mean she is cohabiting. She acknowledged
that they traveled together, each paying their own way, and
occasionally slept over at one another's home, as one
would expect of two adults in a dating relationship.
denied, however, that they were in a relationship tantamount
to marriage. She averred the two had "never discussed
[their] 'future' with respect to merging [their]
lives," performed no household chores for one another,
had no intertwined finances, do not share living expenses and
do not have authority over one another's children. She
noted each of them took separate family vacations, not
something that married couples typically do. Defendant also
noted she often attended social events alone, and that her
boyfriend did not attend her law school graduation or her
swearing-in ceremony, something he certainly would have done
had they been in a relationship akin to marriage. As to her
son's Bar Mitzvah, defendant noted her boyfriend attended
as her "date" and thus sat next to her, but did not
participate in the ceremony and his presence was not
commemorated by being included in any family photos. She
denied she received any discount in connection with moving
her brokerage accounts, and noted her boyfriend had nothing
to do with her accounts at the firm. Defendant averred that
while she and her boyfriend enjoyed one another's
company, they were simply dating on a regular basis and had
"no obligations" to one another.
reply, plaintiff submitted the certification of the ex-state
trooper plaintiff employed to surveil defendant and the man
she was seeing. Although that individual certified based on
his "surveillances" and "other information
from [plaintiff], all of which indicates that [defendant] and
[her boyfriend] cohabit in each other's residence
approximately 75% of the time period examined," he did
not identify the time period and specified only two instances
in which he spotted defendant or her boyfriend leaving the
other's home in the morning.
oral argument on the motions, the judge put his ruling on the
record. Although acknowledging the "general task for the
judge hearing the [cohabitation] motion is to determine
whether the moving party has established a prima facie case
of cohabitation," meaning that plaintiff's
"proffered evidence, if . . . unrebutted would . . .
sustain a judgment" in his favor, the judge
"decided that [he was] not going to decide whether . . .
plaintiff has made out a prima facie case, but [he was] going
to allow discovery . . . to allow . . . plaintiff the
opportunity to make a showing of a prima facie case, or not,
as the case may be."
that neither counsel had been able to locate "a case
that clearly says that a judge in [his] position can do
that," the judge noted certain "dicta, in
unpublished cases, which [he was] not relying on, that seem
to indicate that judges have" permitted discovery
"before deciding the motion." Lamenting the lack of
"a clear Appellate Decision on this point" and
acknowledging that much of plaintiff's "proffered
evidence . . . is consistent with either a dating
relationship or a cohabitation relationship," the judge
nevertheless determined that allowing "certain
discovery" from which plaintiff "either will or
won't be able to make out a prima facie showing" was
the "fair and equitable thing to do in this case."
judge explained that "because of the nature of a
cohabitation relationship, the difficulties of proving it, .
. . and the proffered evidence that is consistent with
potential concealment of such a relationship, [he was] going to
authorize limited discovery . . . [of] 15 interrogatories and
notices to produce on . . . any of the [statutory] factors .
. . as well as a deposition of . . . defendant and a
deposition of [defendant's boyfriend]." The judge
stated that upon completion of that discovery he would expect
plaintiff to then "essentially re-file [his] motion, if
[he thought he could] make out a prima facie case."
court thereafter entered an order finding plaintiff had made
"a sufficient showing to warrant limited discovery
concerning the existence of a prima facie cohabitation
relationship between defendant and her alleged
cohabitant," such discovery being "limited in scope
to the factors set forth in N.J.S.A. 2A:34-23(n)." The
court subsequently denied defendant's motion for
reconsideration, although reiterating it "could not
conclude" from the evidence proffered by plaintiff
"that he had made a prima facie case." Expressly
finding "[w]e are not at the stage where it would be
appropriate for [the court] to find a prima facie case, which
would authorize discovery and also very significantly require
a plenary hearing" where defendant would have the burden
of proof,  the judge reaffirmed his ruling permitting
"limited discovery" after which plaintiff
"still will have to make a prima facie case
counsel could not agree on the "limited discovery"
allowed, the court conducted a case management conference on
the record to resolve their discovery dispute. After
reviewing the discovery propounded by plaintiff, the court
noted the "very broad standard when it comes to
discovery" and found the requested information was
"reasonably calculated to lead to admissible evidence
concerning the nature of the relationship."
although the court restricted the discovery to a two-year
period instead of the five years requested by plaintiff, the