Opinion
DOCKET NO. A-0687-13T1
04-02-2015
MYRNA FRINGO, n/k/a MYRNA RIVERA, Plaintiff-Appellant/Cross-Respondent, v. JOSEPH FRINGO, Defendant-Respondent/Cross-Appellant.
Scott J. Levine argued the cause for appellant/cross-respondent. Andrew L. Rochester argued the cause for respondent/cross-appellant (Morgenstern & Rochester, L.L.C., attorneys; Mr. Rochester, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Rothstadt. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-633-11. Scott J. Levine argued the cause for appellant/cross-respondent. Andrew L. Rochester argued the cause for respondent/cross-appellant (Morgenstern & Rochester, L.L.C., attorneys; Mr. Rochester, on the brief). PER CURIAM
Plaintiff Myrna Fringo, n/k/a, Rivera appeals from the portion of the Family Part's July 19, 2013 post-judgment order that suspended her entitlement to alimony for a period of nine months, based on plaintiff's cohabitation with her significant other. Defendant Joseph Fringo cross-appeals from a provision in the same order denying his motion for counsel fees. Plaintiff also appeals from the court's September 20, 2013 order denying her motion for reconsideration, and defendant appeals from that order's denial of his application for fees.
Although defendant's notice of cross-appeal indicated he appealed from the third paragraph of each of the two orders regarding the denial of counsel fees, he only briefed his entitlement to fees in connection with plaintiff's motion for reconsideration.
On appeal, plaintiff argues the court erred because defendant failed to prove a prima facie case of plaintiff's cohabitation and, even if he did, plaintiff rebutted the presumption of cohabitation established by defendant. She also argues the court should not have considered defendant's application because he failed to file a case information statement (CIS). Defendant argues plaintiff pursued her motion for reconsideration in bad faith because it was without any basis, thereby entitling him to an award of counsel fees.
We have considered these arguments and the record of the motions. We affirm.
We derive the facts from the record of the two motions, which were decided without a plenary hearing.
The parties were married on August 21, 1993, and divorced pursuant to a Judgment of Divorce (JOD) filed on August 10, 2011. The JOD incorporated a Matrimonial Settlement Agreement (MSA), which required defendant to pay plaintiff a combination of rehabilitative alimony in the amount of $687.50 per week for two years, and followed by limited duration alimony for the next nine years in the amount of $585 per week. However, the MSA also stated "[t]he parties agree that cohabitation by wife shall constitute a substantial changed circumstance in accordance with NJ Law."
At the time rehabilitative alimony was defined in N.J.S.A. 2A:34-23(d) and limited duration alimony in N.J.S.A. 2A:34-23. The statute was subsequently amended in 2014.
In April 2013, defendant filed a motion seeking termination or modification of alimony based on plaintiff's cohabitation with another and seeking to conduct discovery on the issue. Defendant supported his motion with his own certification and that of a private investigator whose report established plaintiff's boyfriend began to live in her apartment in December 2012.
Plaintiff filed a cross-motion in response to defendant's motion. In her cross-motion, plaintiff asked the court to deny defendant's motion, increase her alimony and to extend the period of her rehabilitate alimony. In her supporting certification, plaintiff confirmed her boyfriend lived with her from August 2012 through April 2013. She characterized his residency as a "temporary stay" and claimed her living with him did not result in any financial benefit to her because her boyfriend "earned minimal income during the time he lived with [her]. Therefore, he could not contribute in any way whatsoever except that he did help repair certain items [in her] townhouse."
Plaintiff supported her statements by supplying her May 21, 2013 CIS and requested the court compel defendant to do the same. Her CIS did not disclose any income from her boyfriend and indicated she paid all of her expenses, including her approximately one thousand dollar monthly (Schedule A) shelter costs. Plaintiff also produced copies of statements from her bank accounts, credit cards and various bills, in support of her certified statement that she and her boyfriend have no joint accounts. However, almost all were dated from the period of March 2013 to May 2013.
In addition, plaintiff provided a certification from her boyfriend, which also confirmed he lived with plaintiff since August 2012 during their "on-again/off-again relationship for approximately a year and a half." He certified he attached his 2012 federal income tax return (although no tax return was provided), his W-2 statements and a current pay stub, including a statement showing unemployment compensation. The documents indicated he earned in excess of $23,000 during 2012. He explained he did not have significant income and had child support obligations that left him with little to spend. According to the boyfriend "the only real financial benefit to [plaintiff] was limited to [his] ability to make repairs in her home and not in any real form of satisfying [plaintiff's] financial needs." He confirmed they were no longer living together or in a relationship and that they "have no joint accounts of any kind."
After considering the parties' submissions and their attorneys' oral argument on July 19, 2013, Judge Kathleen M. Delaney, granted defendant's motion for a modification of alimony based on plaintiff's cohabitation. In her oral decision, she relied upon our opinions in Ozolins v. Ozolins, 308 N.J. Super. 243 (App. Div. 1998) and Reese v. Weis, 430 N.J. Super. 552 (App. Div. 2013), confirmed that plaintiff and her boyfriend admitted to living together for nine months and determined plaintiff failed to satisfy her burden of proof. She stated:
[T]he person who [is] cohabitating and the supported spouse has to show that there was no economic benefit from the cohabitant. . . . [U]nder Ozolins, "A showing of cohabitation creates a rebuttable presumption of changed circumstances shifting the burden to the dependent spouse" — in this case the plaintiff — "to show that there is no actual economic benefit to the spouse or the cohabitant."
. . . I do[ not] think that the plaintiff has sustained her burden to show that he did not contribute economically and that she did not receive an economic benefit from the cohabitation.
It may not have been a lot of money but he did make some money, . . . she has not shown that there was no economic benefit that she derived from [her boyfriend] . . . living with her . . . .
As a result of there being no "genuine issue of material fact" as to plaintiff's cohabitation or an economic benefit to her or her boyfriend, Judge Delaney determined a plenary hearing was not necessary. Based on the parties' submissions and their arguments, the court terminated alimony for nine months and credited defendant's overpayment against eighteen months of future alimony payments during the limited duration alimony period.
As to counsel fees, the judge denied both parties' applications because she did not "think that either party came before this [c]ourt in bad faith or with unreasonable positions . . . ." The judge further found, "[t]here [were] some financial issues in this case between the parties. I do[ not] think that either side has the financial means to pay the counsel fees for the other."
Plaintiff subsequently filed a motion for reconsideration. In her supporting certification, plaintiff argued the court applied the wrong standard to defendant's application. In addition, she alleged her boyfriend's annual net income was $12,000 and that "it is/was impossible that his income could in any way whatsoever offset [her] need for alimony . . . ." She also alleged he paid "his own expenses." Finally, plaintiff argued she was "entitled to discovery to show that there was no economic benefit . . . and [to] a plenary hearing." Plaintiff did not attach any documents in support of her certified statements relating to her or her boyfriend's income or expenses.
Defendant responded with a cross-motion seeking the denial of plaintiff's motion and an award of counsel fees. In his supporting certification, defendant pointed out among the financial documents plaintiff provided in response to his original motion were bank statements, which, while they were in her name only, did not "show that she paid any bills" while her boyfriend lived with her. He also argued that if plaintiff is to be believed, and she realized no financial benefit from her cohabitation, then the benefit "inured to [her boyfriend] from [defendant's] alimony payments . . . [which] is itself a basis to terminate . . . [his] alimony obligation . . . ." Further, he noted plaintiff did not disclose how her boyfriend paid for his "shelter related bills[,]" and that he "moved out of [p]laintiff's residence the week [defendant] file[d] [his m]otion to terminate alimony." Finally, as to cohabitation, he argued plaintiff has not raised any arguments or presented any new information to the court.
As to filing a CIS, defendant indicated he would do so if directed by the court, but his "reason for termination of alimony had nothing to do with a changed circumstance on [his] part. [He was] not claiming an inability to pay alimony. [He was] claiming that [p]laintiff is not entitled to alimony." Finally, as to attorney fees, defendant primarily argued he was entitled to an award because, [p]laintiff [made] no arguments today that are in any way different from the arguments that she made in July[,] . . . [and he] should not have to pay additional money to an attorney to get the same result as [he] already received."
Judge Delaney denied plaintiff's motion after considering counsels' oral argument, finding plaintiff failed to meet the standard for reconsideration under Rule 4:49-2 as discussed in the Family Part's opinion in D'Atria v D'Atria, 242 N.J. Super. 392 (Ch. Div. 1990) and our opinion in Cummings v. Bahr, 295 N.J. Super. 374 (App. Div. 1996). In her oral decision, while explaining why a hearing, as argued by plaintiff, was not necessary, Judge Delaney expanded upon her reasons for granting defendant's motion in July:
[J]ust basically based upon the plaintiff's certification and the certification of [her boyfriend], even . . . just taking that and just believing that, just saying that they[ are] credible, without having a need for a plenary hearing because I do[ not] think there[ is] a need for a plenary hearing.
But [her boyfriend] lived with her for nine months. He had income. He made money. [Defendant] was paying alimony which helped to support the plaintiff and [her boyfriend] because he was living under the same roof. There is no question that there was cohabitation.
They were boyfriend and girlfriend . . . . [Her boyfriend] made income, he just chose to spend his money on whatever he spends his money on but . . . he was clearly . . . benefitting economically from the alimony that [defendant] was paying to the plaintiff.
The court then denied defendant's request for counsel fees because plaintiff did not have the ability to pay as demonstrated by the financial information plaintiff submitted to the court. The judge stated:
We [are] here because the plaintiff claims she . . . can[not] live on the alimony that
has been provided so clearly she does not have the financial means to pay the defendant's counsel fees under [Rule] 5:3-5 — I do [not] even think I get to the rest of the analysis because I [am] finding that she does [not] have the financial means to pay.
The parties' appeals followed.
Our review of the modification of alimony is "limited to whether the court made findings inconsistent with the evidence or unsupported by the record, or erred as a matter of law." Reese, supra, 430 N.J. Super. at 572. A "motion to modify an alimony obligation 'rests upon its own particular footing and the appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters.'" Id. at 571-72 (quoting Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009)).
"[A]limony is awarded because of an 'actual economic dependency' and not because of one's status as a spouse." Id. at 569 (quoting Lepis v. Lepis, 83 N.J. 139, 155 (1980)). A court is required to "consider, among other things, the actual need of the party to whom the [alimony] award is to be made." Garlinger v. Garlinger, 137 N.J. Super. 56, 63 (App. Div. 1975) (citing N.J.S.A. 2A:34-23).
Alimony awards are not set in stone and can be modified if a party demonstrates a significant financial change since the alimony was first awarded. Reese, supra, 430 N.J. Super. at 569. Specifically, an alimony obligation can be modified based upon a changed circumstance which rests with the discretion of the judge. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006).
One type of changed circumstance is cohabitation by a spouse, Gayet v. Gayet, 92 N.J. 149, 155 (1983), which the parties expressly recognized in their MSA. A former spouse's residing with a significant other by itself is not enough to terminate alimony. In addition to cohabitation there must be proof a cohabitating spouse is receiving some form of economic benefit from the cohabitation, Reese, supra, 430 N.J. Super. at 557-58, 576, or if the supported cohabitant "supports or subsidizes the other under circumstances sufficient to entitle the supporting spouse to relief." Gayet, supra, 92 N.J. at 153-54. Under either circumstance, alimony should be modified or terminated. Id. at 150; see also Reese, supra, 430 N.J. Super. at 571 (citing Garlinger, supra 137 N.J. Super. at 64) ("Modification of alimony is warranted when either the cohabitant contributes to the dependent spouse's support or lives with the dependent spouse without contributing.").
Recognition of cohabitation as a basis to change an alimony award is now found in the September 10, 2014 amendments to the alimony statute. See N.J.S.A. 2A:34-23(n) (providing discretion to terminate or suspend alimony if the payee cohabits with another). As this matter arose prior to the statute's adoption, our review is guided by prior cohabitation jurisprudence, which provided cohabitation alone was insufficient to terminate alimony; cohabitation must be accompanied by a substantial economic benefit resulting from the relationship. Reese, supra 430 N.J. Super. at 557-58.
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As we explained in Garlinger:
[I]f the paramour resides in the wife's home without contributing anything toward the purchase of food or the payment of normal household bills, then there may be a reasonable inference that the wife's alimony is being used, at least in part, for the benefit of the paramour, in which case it could be argued with force that the amount thereof should be modified accordingly.
[Garlinger, supra, 137 N.J. Super. at 64. Accord Konzelman v. Konzelman, 158 N.J. 185, 196 (1999); Wertlake v. Wertlake, 137 N.J. Super. 476, 487 (App. Div. 1975).]
A supporting spouse's proof of cohabitation creates a rebuttable presumption of changed circumstances. Ozolins, supra, 308 N.J. Super. 24 at 248. Once established, "[t]he burden of proof, which is ordinarily on the party seeking modification, shifts to the dependent spouse." Id. at 248-49. This includes the lack of economic benefit and continued need for support. Id. at 249.
Our review of the record leads us to conclude plaintiff's and her boyfriend's certifications established they lived together and their assertions failed to rebut the presumption of cohabitation. As Judge Delaney stated, accepting as true everything to which plaintiff and her boyfriend certified, both of them benefited from the boyfriend residing with plaintiff in a marriage-like relationship as demonstrated by plaintiff's subsidization of him, by allowing him to live with her but not requiring any financial contribution, and by his in-kind contributions to help support plaintiff by making repairs to her townhouse for which she did not have to pay. See Reese, supra, 430 N.J. Super. at 557-58 (whether dependent spouse economically benefits from cohabitation depends not only on "the actual financial assistance resulting from the new relationship, but also . . . other enhancements to the dependent spouse's standard of living that directly result from cohabitation"); Garlinger, supra, 137 N.J. Super. at 65 (terminating alimony where paramour and ex-wife lived together in ex-wife's residence for several months, paramour did not pay for room and board, and paramour moved out upon ex-husband's alimony modification motion); Edelman v. Edelman, 124 N.J. Super. 198, 200 (Ch. Div. 1973) (reducing alimony where cohabitant paid "a miniscule payment of room and board[,]" and thus, monthly alimony payment "would necessarily enure to the benefit of [the dependent spouse]'s paramour").
Plaintiff provided no proof that her boyfriend did not benefit from their cohabitation. Although they both confirmed they did not share any financial accounts as of the date of their certifications, they did not confirm such financial relations did not occur at any time during their cohabitation. Regardless, they both confirmed the boyfriend did not pay any amounts towards, minimally, his shelter costs or, for that matter, any other expense. Both of their submissions were devoid of such proofs. Under these circumstances, the judge correctly determined plaintiff failed to meet her burden of proof to rebut the presumption.
We also reject plaintiff's argument that the court was required to deny defendant's motion because he did not file a CIS. In pertinent part, Rule 5:5-4(a) provides:
When a motion . . . is brought for the . . . modification of an order or judgment for alimony or child support . . . , the pleading filed in support of the motion shall have appended to it a copy of the prior case information statement or statements filed before entry of the order or judgment sought to be modified and a copy of a current case information statement.
A party cannot refuse to provide the information required by the Rule, and it is appropriate for a judge to insist upon compliance. See Zazzo v. Zazzo, 245 N.J. Super. 124, 128-29 (App. Div. 1990) (discussing the requirement and interpretation of the Rule in the context of a motion to modify child support), certif. denied, 126 N.J. 321 (1991). The rule's "mandate is not just window dressing. It is, on the contrary, a way for the trial judge to get a complete picture of the finances of the movants in a modification case." Gulya v Guyla, 251 N.J. Super. 250, 253 (App. Div. 1991) (discussing the importance of the requirement in the context of a motion to modify alimony and child support); see also Palombi v. Palombi, 414 N.J. Super. 274, 291 (App. Div. 2010) (characterizing the failure to supply a case information statement in support of a modification motion as a "fatal flaw."). The information required by Rule 5:5-4(a) can be especially critical when the changed circumstance alleged is cohabitation.
We conclude, defendant's failure to supply his CIS was not a "fatal flaw." Rather, the CIS was not needed because defendant conceded his ability to continue to pay support as previously ordered. As a result, his income and expenses were not relevant to the court's determination of the extent to which plaintiff needed alimony to continue to maintain her standard of living while cohabitating with her boyfriend. She, not defendant, had the burden of proof to establish the amount of alimony she still required, after taking into consideration the amount of support she obtained from her boyfriend or the extent to which she provided him with financial support. Ozolins, supra, 308 N.J. Super. at 248 (App. Div. 1998) (approving the trial court's holding in Grossman v. Grossman, 128 N.J. Super. 193, 197 (Ch. Div. 1974) that the supported spouse must "come forward with proof that the need for support remains the same").
As the court found here, plaintiff failed to meet her burden. She supplied no information as to who paid household bills and to what extent those funds came from her or from her boyfriend. Her only proof consisted of both of their allegations that he provided no financial contribution to plaintiff. The only established fact was that the boyfriend received an unidentified financial benefit by living in plaintiff's home which she maintained in reliance upon defendant's alimony payments.
We conclude there was substantial credible evidence to support the court's decision that termination of alimony for nine months was warranted based on plaintiff's cohabitation with her boyfriend and their economic relationship.
We also agree with the judge's denial of plaintiff's reconsideration motion because plaintiff failed to supply any newly discovered information or establish that the court erred as to its legal conclusions. See Palombi, supra, 414 N.J. Super. at 288-89; Fusco v. Board of Ed. of Newark, 349 N.J. Super. 455, 462 (App. Div.), cert. denied, 174 N.J. 544 (2002).
We reach a similar result regarding the court's denial of defendant's request for counsel fees. "We will disturb a trial court's determination on counsel fees only on the 'rarest occasion,' and then only because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).
Rule 5:3-5(c) permits the court to grant counsel fees to "any party successful in the action, on any claim for . . . alimony . . . ." Whenever an application is made in the Family Part for counsel fees, "the court shall determine the appropriate award . . . if any, . . . [after] consider[ing] the factors set forth in [Rule 5:3-5], the financial circumstances of the parties, and the good or bad faith of either party." N.J.S.A. 2A:34-23. Accordingly, the court must consider:
(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.Even if every factor is not analyzed, as long as the judge provides support for the court's determination, these factual findings will not be disturbed. Reese, supra, 4 30 N.J. Super. at 586.
[R. 5:3-5(c).]
Judge Delaney provided adequate factual support for her denial of counsel fees to defendant. Specifically, she considered plaintiff's CIS and the supporting documents plaintiff attached. From the court's review of plaintiff's information, the judge determined that even if she had cause to award defendant fees, plaintiff could not afford to pay them, especially after the modification of her alimony. However, as the judge also stated, she did not find any cause or bad faith or similar reason to award fees.
We have no reason to disturb the Family Part's decision.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION