Opinion
DOCKET NO. A-3312-12T2
06-24-2014
ANN MARIE SYSLO, Plaintiff-Appellant, v. RAYMOND SYSLO, Defendant-Respondent.
Toni Ann Marcolini, attorney for appellant. Timothy J. Little, P.C., attorneys for respondent (Mr. Little, of counsel; Brian E. McGarry, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez and Carroll.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-440-05.
Toni Ann Marcolini, attorney for appellant.
Timothy J. Little, P.C., attorneys for respondent (Mr. Little, of counsel; Brian E. McGarry, on the brief). PER CURIAM
Plaintiff Ann Marie Syslo appeals the February 7, 2013 Family Part order granting defendant Raymond Syslo's motion to terminate alimony due to her cohabitation with a third party. We affirm.
The following are the facts developed during three days of plenary hearing, which in the main were relied upon by the Family Part judge in reaching her decision. Plaintiff and defendant married in 1990 and divorced in 2004. They had three children, the youngest of whom resides with plaintiff. At present, defendant pays $210 per week in child support, and $15 a week towards arrears. At the time of the parties' divorce, defendant agreed to pay plaintiff $70 per week in alimony. In 2007, that figure was increased to $225 per week.
In order to establish cohabitation, defendant retained the services of a private investigator. He filmed the cohabitant at plaintiff's residence overnight, a total of some thirty-five days, in October 2010, September 2011, and March and April of 2012. In addition, the videos established that the cohabitant had a key to plaintiff's residence, which he used to gain access to the home both when plaintiff was present as well as when she was absent. At times, he drove plaintiff's car. The cohabitant also, at times, transported the youngest child, even in plaintiff's absence.
Defendant was also able to establish that the cohabitant received mail at plaintiff's home. Shortly before or during the plenary hearing, the cohabitant attempted to remove plaintiff from his automobile insurance policy on which she had been listed as an additional driver.
The cohabitant testified he used plaintiff's home address merely for convenience as she was helping him resolve a problem with the United States Internal Revenue Service (IRS). The agency corresponded with him at that address, not at the residence he claimed he maintained with his brother, for which he alleged he paid $300 per week. He also acknowledged receiving the notice of the issuance of a federal tax lien at plaintiff's address. Other documents were submitted verifying his use of plaintiff's residence as his home address, including an application for employment. Plaintiff and the cohabitant maintained a joint federal credit union account in 2010, from which both wrote checks and paid joint bills.
An emancipated child of plaintiff and defendant testified on behalf of plaintiff, alleging that her mother's relationship with the cohabitant, which began in 2005, was "on again/off again." Plaintiff also testified, agreeing that although the cohabitant spent three to four nights at her home weekly, he did not live there. She admitted he gives her approximately $200 per month, but explained he did so because she was helping him address tax issues with the IRS. Plaintiff acknowledged the joint account, but denied she used it any longer. She asserted they had no joint credit cards, and that the extent of the cohabitant's financial contribution was to occasionally take her out to dinner.
The judge found plaintiff's explanation of cash deposits into her checking account to be unsatisfactory. Plaintiff had testified they were attributable to alimony and child support deposits. Instead, the judge concluded that they were funds provided to her by the cohabitant.
As a result of these circumstances, the judge found, in reliance on Konzelman v. Konzelman, 307 N.J. Super. 150 (App. Div. 1998), aff'd, 158 N.J. 185 (1999), that defendant had indeed established cohabitation. In the judge's view, plaintiff and the cohabitant acted like a "relatively permanen[t]" family unit, with the assumption of the duties and obligations associated with marriage. The judge made termination effective only as of the date of the entry of the order and no earlier, as "there were numerous delays in the proceedings which were primarily at the defendant's request, as he continued to investigate this matter. And to now make a retroactive modification which would require repayment of all -- any monies paid, [would] be inequitable."
On appeal, plaintiff contends that the trial court erred in finding that the parties cohabited within the legal definition of the term. She also contends that the relationship did not have the indicia commonly associated with marriage. See Konzelman, supra, 307 N.J. Super. at 202.
Our review of the findings of fact made by a Family Part judge is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). Where the findings are supported by adequate, substantial, and credible evidence, they will be "binding on appeal." Id. at 411-12. This particular deference is accorded to Family Part judges because of their "special jurisdiction and expertise in family matters." Id. at 413. Reversal is warranted only where factual findings are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation omitted).
Additionally, in this case, we are obliged to accord the deference to the trial judge's credibility determinations. Cesare, supra, 154 N.J. at 412. That deference is warranted because only the trial judge gains the "feel of the case" possible upon observations of the demeanor of witnesses and the manner in which their testimony is given. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (internal quotation marks and citation omitted).
Here, the judge's decision was grounded on her conclusion that plaintiff's testimony, and that of the cohabitant, was less than credible. This included factors such as their efforts at changing the paper trail otherwise available to defendant, such as the cohabitant's deletion of plaintiff as an insured driver on his automobile policy. After reviewing the record, we conclude that there was satisfactory evidentiary support for the trial court's findings. See Beck v. Beck, 86 N.J. 480, 496 (1981).
It is well-established that the cohabitation of a dependent spouse constitutes a change of circumstances. Gayet v. Gayet, 92 N.J. 149, 155 (1983). It must, as stated in Konzelman, be more than an intimate relationship — it must include the parties undertaking "duties and privileges that are commonly associated with marriage." Konzelman, supra, 158 N.J. at 202. These indicia may include "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." Ibid.
Pursuant to Ozolins v. Ozolins, 308 N.J. Super. 243, 245 (App. Div. 1998), the burden is on the dependent spouse to demonstrate no actual economic benefit to either the spouse or the cohabitant from the relationship once a prima facie showing of cohabitation is made. Rose v. Csapo, 359 N.J. Super. 53, 61 (Ch. Div. 2002). The dependent spouse in this case was unable to refute the economic benefit.
In this case, the evidence which supports the judge's determination appears substantial. Defendant proved not just the extensive number of nights spent by the cohabitant in plaintiff's home, but his possession of a key, his assistance with driving the parties' unemancipated child, the fact that in dealing with the IRS he provided plaintiff's home as his address, and unexplained cash deposits which the judge found did not correlate to child support or alimony. The parties' joint account and the cohabitant's automobile insurance coverage for plaintiff as an additional driver are also consequential.
Acknowledging that each motion to modify an alimony obligation is unique unto itself, we do not second-guess this trial judge's sound exercise of discretion. See Reese v. Weis, 430 N.J. Super. 552, 572 (App. Div. 2013). The judge's discretionary determination was based on findings supported by sufficient evidence in the record. She did not err as a matter of law. We therefore affirm. See Gordon v. Rozenwald, 380 N.J. Super. 55, 76 (App. Div. 2005).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION