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Superior Court of New Jersey, Appellate Division.

PAUL A. FRIEDMAN, Plaintiff–Appellant, v. DARIA LESLIE FRIEDMAN, Defendant–Respondent.

DOCKET NO. A–2199–12T3

    Decided: March 13, 2014

Before Judges Reisner, Alvarez and Carroll.Theresa A. Lyons argued the cause for appellant (Lyons & Associates, P.C., attorneys;  Ms. Lyons and Mark T. Gabriel, on the briefs). Jani Wase Vinick argued the cause for respondent (Haber Silver & Simpson, attorneys;  Karen Duchin Haber, of counsel;  Ms. Vinick, on the brief).

Plaintiff Paul A. Friedman appeals from the December 7, 2012 Family Part order denying his post-judgment application to terminate alimony based on defendant's alleged cohabitation and improved financial circumstances.   We affirm.

The parties divorced in 1998, after a twenty-six-year marriage.   Their separation agreement, incorporated into their judgment of divorce, obliged plaintiff to pay defendant a minimum of $4000 per month in alimony.   At the time of divorce, plaintiff earned $346,000 annually;  when he filed this modification motion, he earned approximately $390,000 annually exclusive of other job-related benefits.   Defendant earned approximately $24,000 annually at the time of divorce, and plaintiff alleges that she now earns in excess of $120,000, based on internet data regarding similar positions at similar firms to the one held by defendant.

Defendant has been in a relationship with Barry Kutenplon since 1999.   He spends frequent overnights at her home, has signed for packages there, engaged in therapy dog visits with her dog, and helps care for her dog while she is at work.   Kutenplon owns a home in a different town.   He provided documentation regarding his shelter costs, such as utilities.   Defendant and Kutenplon denied any financial involvement, such as contributions to the other's expenses or joint bank accounts.   Kutenplon has figured in family photographs posted on Facebook and does not dispute his cordial relationship with the parties' now-adult children.

Both parties rely upon several paragraphs in the separation agreement to support their respective positions.   Specifically, paragraph 7 of the agreement states:

All payments of alimony made by [plaintiff] shall terminate upon the first of the following events to occur:  death of [plaintiff], death of [defendant,] or remarriage of [defendant].   The parties further agree that [plaintiff] may seek to reduce or eliminate his alimony obligation after he has reached age 65;  this provision does not constitute an acknowledgement by [defendant] that alimony may be reduced solely on [plaintiff] reaching age 65.

Additionally, paragraph 8 of the agreement addresses the impact of cohabitation:

It is agreed and understood ․ that if [defendant] cohabits with another adult, in a relationship tantamount to marriage then, and in that event, [plaintiff] may seek to reduce and terminate his alimony obligation.   Should [plaintiff] make application for such relief, the burden of proof shall be on [defendant] to demonstrate that no reduction or elimination of support is warranted in accordance with current case law.   Cohabitation as defined herein is uninterrupted living arrangements with an unrelated person for a period in excess of 6 months.

Paragraph 9 of the agreement states that plaintiff may seek to modify alimony if his gross yearly income falls below $187,500.   After that clause, the agreement provides that alimony “shall be includable in [defendant's] gross income for any calculations that may be required of her circumstances under the terms of th[e] Agreement.”

Lastly, paragraph 10 of the separation agreement provides:

The parties acknowledge that there shall be no application by [plaintiff] for a reduction in his child support or alimony obligations based on any increase in earnings of [defendant], nor shall any such increase in [defendant]'s earnings be considered should [plaintiff] make application as hereinabove described in paragraph 9 of this Agreement.

The Family Part judge concluded that plaintiff had failed to demonstrate a prima facie change of circumstances pursuant to Lepis v. Lepis, 83 N.J. 139, 157 (1980).   Because plaintiff failed to meet that minimum threshold, including as to defendant's alleged cohabitation, no discovery was permitted nor plenary hearing ordered.   The judge acknowledged that plaintiff incurs extraordinary expenses in order to provide for uninsured services to a special needs child born to his second marriage, and that he had ongoing age-related health issues, as he was now over sixty-five.   The judge also noted, however, that plaintiff's case information statement (CIS) established that he earned more income at present than he had when the alimony payments were structured.

The judge interpreted paragraphs 7 and 10 of the agreement to mean that defendant's increased earnings alone could not constitute an independent basis for modification of plaintiff's alimony obligation.   Although he considered that consequential, of overriding importance in his analysis was the fact plaintiff failed to meet his burden under Lepis with regard to his own circumstances, which were, in fact, arguably significantly improved since the divorce.

Insofar as cohabitation, the judge observed that the separation agreement required “uninterrupted living arrangement[s] with an unrelated [adult] for a period in excess of six months.”   He found that plaintiff, despite the many proofs presented, had failed to establish anything more than the existence of a long-standing romantic relationship between defendant and Kutenplon.   The judge perceived plaintiff's proofs to fall short of establishing the required cohabitation for six months, or a relationship tantamount to a marriage, “not only emotional, but ․ financial.”   He noted that defendant's submissions included Kutenplon's condominium monthly charges, $500 per month.   In the judge's view, “if it's a sham home or ․ a fake home,” it was unlikely that Kutenplon would pay over $6000 a year plus other expenses.   Even if plaintiff was correct and defendant bore the burden of disproving cohabitation once alleged, since Kutenplon owned and paid for a residence elsewhere, among other reasons, cohabitation was not established.

“The scope of appellate review of a trial court's fact-finding function is limited,” and, “[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.”  Cesare v. Cesare, 154 N.J. 394, 411, 413 (1998).   “However, where the focus of the dispute is not on credibility but, rather, alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom the appellate function broadens somewhat.”   C.B. Snyder Realty Inc. v. BMW of N. Am., 233 N.J.Super. 65, 69 (App.Div.), certif. denied, 117 N.J. 165 (1989).  “[T]he trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to our plenary review.”  Reese v. Weis, 430 N.J.Super. 552, 568 (App.Div.2013).

It cannot be disputed that “[t]he basic contractual nature of matrimonial agreements has long been recognized.”  Pacifico v. Pacifico, 190 N.J. 258, 265 (2007).  “[M]atrimonial agreements between spouses relating to alimony ․, which are fair and just, fall within the category of contracts enforceable in equity.”  Petersen v. Petersen, 85 N.J. 638, 642 (1981).   Furthermore, “[w]hen a party to a comprehensive negotiated PSA seeks to modify any support obligation, that party must meet the threshold standard of changed circumstances.”  J.B. v. W.B., 215 N.J. 305, 327 (2013).   Some examples of changed circumstances are:  (1) an increase in the cost of living;  (2) an increase or decrease in the supporting spouse's income;  (3) an illness, disability, or infirmity arising after the original judgment;  (4) the dependent spouse's loss of a house or apartment;  (5) the dependent spouse's cohabitation with another;  (6) the subsequent employment by the dependent spouse;  and (7) a change in federal income tax law.   See Lepis, supra, 83 N.J. at 151.

Konzelman v. Konzelman, 158 N.J. 185 (1999), guides our analysis of plaintiff's proofs regarding defendant's alleged cohabitation, and whether plaintiff has met the threshold standard of changed circumstances which would entitle him to discovery and a plenary hearing.   The question is whether a dependent spouse has “entered into a new marriage-like relationship.”  Id. at 197.   Such a relationship would be more than “[a] mere romantic, casual or social relationship.”  Id. at 202.   More is required

than a common residence, although that is an important factor.   Cohabitation involves an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage.   These can include, but are not limited to, living together, intertwined finances such as joint bank accounts, sharing living expenses and household chores, and recognition of the relationship in the couple's social and family circle.


Plaintiff contends that the court erroneously required him to do more than called for by paragraph 8, or, alternatively, that the proofs he had available were sufficient for a prima facie showing of cohabitation.   Once having made that threshold showing, plaintiff claims the burden of proof shifted to defendant to disprove cohabitation.   Plaintiff also asserts that the court compounded its error by failing to order discovery and a plenary hearing.

We disagree with plaintiff's characterizations of the judge's decision.   The judge opined that plaintiff's proofs only demonstrated the undisputed continuous relationship between defendant and Kutenplon, but did not establish the prima facie case of cohabitation for six months as required by the agreement, or a relationship between defendant and Kutenplon tantamount to a marriage as defined in Konzelman.   Plaintiff clearly proved the longstanding relationship between defendant and Kutenplon, but the circumstances did not equate to, even on a prima facie basis, a relationship tantamount to a marriage.   We therefore do not perceive that the judge erred.   Either under the terms of the agreement itself, or relevant case law, plaintiff did not establish cohabitation to any extent.

Neither did the court err in its decision to deny plaintiff's request for modification of alimony based on defendant's alleged improved circumstances.   Paragraph 10 of the agreement does indicate “that there shall be no application by [plaintiff] for a reduction in his child support or alimony obligations based on any increase in earnings of [defendant], nor shall any such increase in [defendant's] earnings be considered should [plaintiff] make application as [ ] described in paragraph 9 of this Agreement.”   Paragraph 9 in turn makes reference to plaintiff's right to seek modification of alimony if his gross yearly income fell below $187,500.

Even though we do not agree with the motion court's reading of paragraph 10 of the agreement, as it had to be read in conjunction with paragraph 9, we do concur nonetheless with the judge's refusal to modify alimony.   Ultimately, plaintiff failed to satisfy his burden, pursuant to Lepis, that changed circumstances warranted discovery and a plenary hearing.   See Lepis, supra, 83 N.J. at 157.   Plaintiff is significantly better off at present than he was when the agreement was reached, both in terms of income and assets.   He has new obligations arising from his new family, however, he has not shown that his ability to meet his earlier commitments is impaired.

Plaintiff's allegations regarding defendant's increased income were based solely on internet salary ranges for comparable jobs.   None of plaintiff's allegations about defendant's lifestyle supported his contention that she no longer has a need for alimony.   Therefore, although we do not agree with the motion judge's reading of the relevant paragraph, we do agree with his decision.



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