Opinion
DOCKET NO. A-5868-13T1
10-13-2015
PAUL CANAL, Plaintiff-Respondent, v. TRACI CANAL, Defendant-Appellant.
Drew A. Molotsky argued the cause for appellant (Adinolfi & Lieberman, P.A., attorneys; Robert J. Adinolfi, of counsel and on the brief; Alexandra K. Rigden, on the brief). D. Ryan Nussey argued the cause for respondent (Klineburger & Nussey, attorneys; Mr. Nussey and Carolyn G. Labin, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and O'Connor. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-538-10. Drew A. Molotsky argued the cause for appellant (Adinolfi & Lieberman, P.A., attorneys; Robert J. Adinolfi, of counsel and on the brief; Alexandra K. Rigden, on the brief). D. Ryan Nussey argued the cause for respondent (Klineburger & Nussey, attorneys; Mr. Nussey and Carolyn G. Labin, on the brief). PER CURIAM
Defendant Traci Canal ("the ex-wife") appeals the Family Part's July 10, 2014 order making certain reductions in the support obligations of plaintiff Paul Canal ("the ex-husband"), primarily in light of the court's finding that she was cohabitating with another individual (the "cohabitant" or "paramour"). For the reasons that follow, we affirm the finding of cohabitation. However, we remand for a further plenary hearing to develop the record more fully concerning the financial issues and to reconsider the amounts of the support adjustments.
The parties were divorced in 2010. They have three children, born respectively in 1989, 2002, and 2004, who live with the ex-wife.
Pursuant to the Property Settlement Agreement ("PSA") entered in connection with the divorce judgment, the ex-husband agreed to pay the ex-wife limited duration alimony of $104,000 annually for seven years. In addition, the PSA obligated the ex-husband to pay child support that had been determined by using a Guidelines worksheet even though the parties earn collectively more than the Guidelines ceiling of $187,200. See Considerations in the Use of Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A(20)(b) to R. 5:6A (2015) ("Guidelines"). The ex-husband also agreed in the PSA to pay the children's grammar school tuition and health insurance costs.
The PSA provided that the ex-husband could move to seek relief from his alimony obligation if he established cohabitation "pursuant to New Jersey law." The PSA was not more specific on the subject than that.
At the time of the motion practice in the Family Part, the ex-wife lived with the children in the former marital residence in New Jersey. The ex-wife's paramour has a house in Pennsylvania.
In November 2013 the ex-husband moved to terminate or reduce alimony on the ground that the ex-wife was cohabitating with her paramour. In support of his motion the ex-husband submitted the report of a private investigator he had hired. The investigator observed the paramour staying overnight with the ex-wife in New Jersey on twelve out of thirty-one days in a particular month. The investigator also determined that the electricity usage at the paramour's Pennsylvania house was very low. In addition, the ex-husband obtained by subpoena the paramour's attendance records from a gym near the ex-wife's house, which showed that he regularly went to that gym between 5:00 and 6:00 a.m.
After a plenary hearing, the Family Part judge concluded that the ex-wife was cohabitating with her paramour. Consequently, the judge determined that the ex-husband was entitled to a reduction of alimony. The judge calculated that reduction by mainly focusing upon the shelter expenses and food expenses of the ex-wife, as reported on her Case Information Statement. The judge determined that the cohabitant should be responsible for one-half of the ex-wife's housing costs, imputing an annual contribution from him of $20,676. In addition, the judge ruled that the cohabitant should be responsible for one-fifth of the ex-wife's reported food costs, calibrating his annual share at $2400. Based on these calculations, the judge reduced the ex-husband's annual alimony obligation from $104,000 to $80,924.
The judge also granted the ex-husband a credit for health insurance premiums that he now pays for the children. Initially, the ex-husband's employer had been paying for the insurance costs. After the employer ceased providing that benefit, the ex-husband reportedly was paying a combined $7800 annually in premiums for coverage for both himself and the three children. The judge reasoned that child support should be reduced from $256 per week to $206 per week to take this added burden into account.
The judge denied the ex-wife's cross-motion to obtain supplemental child support. Although the parties earn slightly above the Guidelines limit of $187,200, the judge was persuaded by the ex-husband's argument that supplemental support is not warranted above the Guidelines levels because he pays private school tuition for one or more of the children. See Guidelines, supra, at Appendix IX-A(20)(b), (21)(e).
The ex-wife, who was self-represented at the motion hearing in the trial court, retained counsel to pursue the present appeal. She variously argues that the judge erred in finding cohabitation; should have considered the actual economic impact of the paramour's presence in the household; erred in denying her supplemental child support; erred in adjusting the child support because of the ex-husband's claimed health insurance cost for the children; and erred in making her rulings retroactive to the date of the ex-husband's modification motion, which was filed on November 26, 2013.
The retroactive terms of the order resulted in the ex-wife owing the ex-husband a refund of $12,804.88 in alimony and $1,492.84 in child support.
The ex-husband has not cross-appealed any facets of the trial court's order. We therefore proceed to address the issues raised by the ex-wife, in turn. In doing so, we recognize the considerable discretion accorded on appeal to the rulings of Family Part judges, particularly on economic issues such as those presented here. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); see also Pascale v. Pascale, 113 N.J. 20, 33 (1988); Connell v. Diehl, 397 N.J. Super. 477, 490-91 (App. Div.), certif. denied, 195 N.J. 518 (2008) (applying these principles in a cohabitation context).
We have no difficulty sustaining the court's finding of cohabitation. The factual proofs adduced at the plenary hearing amply support the criteria for cohabitation established in our state's case law. See Konzelman v. Konzelman, 158 N.J. 185, 202 (1999) (reciting various factors that courts should consider in determining whether there is cohabitation). The ex-husband's proofs, including the unrebutted observations of the investigator and the paramour's gym records and kilowatt usage, clearly established a prima facie case of cohabitation that the ex-wife failed to persuasively rebut. Ozolins v. Ozolins, 308 N.J. Super. 243, 248-49 (App. Div. 1998) (delineating the shifting burdens of proof in a cohabitation proceeding).
The ex-wife stresses that the ex-husband's proofs did not substantiate any actual financial contributions made by her paramour to their common household's expenses. However, "[m]odification of alimony is warranted when either the cohabitant contributes to the dependent spouse's support or lives with the dependent spouse without contributing." Reese v. Weis, 430 N.J. Super. 552, 571 (App. Div. 2013) (emphasis added) (citing Garlinger v. Garlinger, 137 N.J. Super. 56, 64 (App. Div. 1975)).
That said, we have concerns about the fairness of the amount of alimony reductions adopted by the trial court. Although the paramour's imputed one-fifth per capita share of the monthly food costs is surely reasonable, we question imputing to the paramour a one-half share of the mortgage and other housing costs at the parties' former marital residence. Most of the living space in the home is presumably occupied by the ex-wife and three children. Although the children are not wage-earners, we suggest that imputing to the paramour fifty percent of the total monthly shelter expenses, in contrast to the approach taken in allocating food costs, may have been excessive. A fuller record should bear out whether that apportionment is justified by the actual financial arrangements and the paramour's role in contributing to and reaping the benefits of shelter at the New Jersey residence.
In addition, the record reflects that the (then self-represented) ex-wife may have been caught off guard by the manner in which the financial issues were adjudicated. Although the court did not formally bifurcate the hearing, it did announce at the outset that it planned to defer the "financial hunt of knowing who's paying what" until the question of cohabitation was resolved. The ex-wife had objected before the hearing to certain financial discovery of her household expenses being explored. However, once the court found cohabitation, it proceeded immediately into the subject of financial modifications without taking any further testimony. The actual financial impact of the cohabitant's presence in the household might not have been as significant as the court had contemplated.
Under the circumstances, we conclude that the case should be remanded so that the financial issues relating to the modification of alimony are explored more fully at a resumed plenary hearing. The court shall have discretion to permit supplemental and updated discovery to assist it and the parties in that endeavor.
We note that at oral argument on the appeal, both counsel acknowledged that if a further plenary hearing on the modification issues were ordered, the trial court should examine both the facts that existed as of the time of the original motion practice as well as those that are now existing. --------
We also are persuaded that the child support adjustments should be reexamined on remand as well, with a closer review of the pertinent actual financial expenses and supporting documentation. We agree conceptually with the trial court that the ex-husband should be entitled to some degree of modification for any proven additional insurance costs for the children, as that additional burden would represent an ongoing change in the parties' financial circumstances. See Lepis v. Lepis, 83 N.J. 139 (1980). Even so, the present record is deficient in substantiating the actual per capita marginal increase in premiums associated with only the children's portion of the health insurance, as opposed to the combined premium costs of the children and their father.
Once the financial proofs are more fully developed, the ex-wife's cross-motion for supplemental child support should also be reexamined. The trial court may well be correct that the ex-husband's payment of private school tuition weighs against the ex-wife's request seeking more funds for the children. However, the ex-husband's actual tuition payments are not reflected in the record. On remand, those figures should be presented and considered by the trial court as part of the overall mix of issues.
We have duly considered the remainder of the ex-wife's arguments, including her claim that the trial court unfairly adjusted the support levels retroactively. Those arguments lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, and remanded in part for a further plenary hearing on financial issues. Pending the completion of that hearing, the modified support levels set forth in the court's July 10, 2014 order shall remain in place, subject to any retroactive or prospective adjustments the trial court ultimately may find appropriate. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION