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Landau v. Landau

Superior Court of New Jersey, Appellate Division

September 12, 2019

DAVID SCOTT LANDAU, Plaintiff-Respondent,
STACY LANDAU, Defendant-Appellant.

          Argued March 13, 2019

          On appeal from an interlocutory order of the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1196-12.

          Karin Duchin Haber argued the cause for appellant (Haber Silver & Simpson, attorneys; Karin Duchin Haber, of counsel; Carole A. Hafferty, on the briefs).

          Mark 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).

          Before Judges Fuentes, Accurso and Vernoia.


          ACCURSO, J.A.D.

         The 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 reverse.

         Plaintiff 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, [1] the parties agreed that defendant would receive limited duration term alimony.

         Plaintiff 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."

         In 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."

         Defendant 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.

         Defendant 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.

         In 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.

         Following 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."

         Conceding 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."

         The 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[2] 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."

         The 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"[3] where defendant would have the burden of proof, [4] the judge reaffirmed his ruling permitting "limited discovery" after which plaintiff "still will have to make a prima facie case showing."

         Because 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."

         Thus, although the court restricted the discovery to a two-year period instead of the five years requested by plaintiff, the discovery ...

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