                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in the case and its use in other cases is limited. R.1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3649-14T3

FRANCES CASO,

        Plaintiff-Appellant,

v.

FERNANDO GUERRERO,

        Defendant-Respondent.

_________________________________

              Argued on November 30, 2016 – Decided September 13, 2017

              Before Judges Fuentes, Simonelli and Gooden
              Brown.

              On appeal from the Superior Court of New
              Jersey, Chancery Division, Family Part, Bergen
              County, Docket No. FM-02-2622-11.

              Mark P. Fierro argued the cause for appellant.

              Gerald R. Salerno argued the cause for
              respondent (Aronsohn Weiner Salerno & Kaufman,
              PC, attorneys; Mr. Salerno and Keri L. Greene,
              on the brief).

PER CURIAM

        Plaintiff Frances Caso appeals from the March 2, 2015 order

of the Family Part, granting defendant Fernando Guerrero's motion

to     terminate     his    alimony    obligation      based    on   plaintiff's
cohabitation,    and    ordering      plaintiff         to   repay     $111,600,

representing the overpayment of alimony from March 25, 2013 to

February 28, 2015.     We affirm.

      We glean the following facts from the record.                  The parties

married on December 23, 2003 and divorced on September 27, 2011.

No children were born of the marriage.             The Dual Final Judgment

of Divorce (DJOD) incorporated the terms of a Property Settlement

and   Support   Agreement   (PSSA),       which   the    parties     voluntarily

negotiated and entered into with the assistance of independent

counsel.   Article III of the PSSA addresses alimony.                 Subsection

3.1 delineates defendant's obligation to pay plaintiff limited

duration alimony for a period of six years at a rate of $7200 per

month, commencing on October 1, 2011.               Under Subsection 3.2,

alimony "shall terminate before the six (6) year term upon the

death of [defendant] or the death of [plaintiff], the remarriage

of [plaintiff], whichever event first (1st) occurs."                  Subsection

3.2 provides further that:

           in the event that [plaintiff] cohabits with
           an unrelated adult male in a relationship
           tantamount to marriage, and pursuant and
           subject to the then current New Jersey case
           law, [defendant] shall have the right to make
           an application to the [c]ourt for modification
           and/or termination of the alimony based upon
           the then-existing facts and then-existing case
           law.



                                      2                                  A-3649-14T3
    Any modification of the alimony obligation was restricted

under the PSSA as follows:

         3.4 Neither [p]arty shall seek to obtain from
         the other, either formally or informally,
         through court application, nor otherwise, any
         modification of the per annum spousal support
         payments set forth in paragraph 3.1 of this
         Agreement.   By virtue of their execution of
         and entry into this Agreement, the Parties
         hereby waive their respective rights under
         Lepis v. Lepis, 83 [N.J.] 139 (1980).      Any
         change in the needs, expenses, incomes and
         employment or circumstances of the [p]arties,
         including age, employment status and the like,
         shall not constitute a basis or criterion to
         be used, directly or indirectly, as an
         application for a modification, increase or
         extension of alimony, at any time, by either
         party, to any court of competent jurisdiction.

         3.5 The parties specifically agree that the
         following events shall not be considered to
         constitute a "change in circumstances" which
         would justify either party seeking to modify
         the provisions of this Agreement as it relates
         to alimony:

              1. Either party obtaining new employment;
         and/or

              2.   Any increase or decrease in the net
         salary of either party; and/or

              3.   Either party obtaining additional
         income from any other source; and/or

              4.   Any increase in the cost of living
         or living expenses as experienced by either
         party; and/or

              5.   Either party becoming unemployed;
         and/or


                               3                          A-3649-14T3
                 6.   Either party          failing    to    obtain
            employment; and/or

                 7.      Any increase or decrease in the
            gross or    net salary or income of either party
            above or     below his or her present level of
            earnings    or income; and/or

                 8.   Any    illness,    disability                 or
            infirmity arising hereinafter; and/or

                 9.   Any     other          reason         whether
            foreseeable or not.

     On March 25, 2013, defendant filed a post-judgment motion

seeking to modify or terminate his alimony obligation retroactive

to October 1, 2011, claiming plaintiff was cohabitating with her

paramour, Jose Perez, who was the father of plaintiff's child born

approximately four months after the entry of the DJOD.                         After

determining      that   defendant     met   the   prima     facie    burden         of

demonstrating plaintiff's cohabitation, the trial court conducted

a plenary hearing during which the burden of proof shifted to

plaintiff   to    demonstrate   the    absence    of   economic      benefit        or

financial interdependence between herself and Perez.                 Plaintiff,

Perez, defendant and defendant's private investigator, Stephen

Bojekian, testified at the six-day plenary hearing.

     Plaintiff     claimed   that     she   and   Perez     shared       a   casual,

noncommittal sexual relationship that produced a child in January

2012, whom they co-parent.      Plaintiff admitted proposing to Perez

having a "designer" baby with him.           Plaintiff claimed, however,

                                       4                                     A-3649-14T3
that she and Perez never shared a residence, were not financially

interdependent, and the time spent together at each other's homes

was solely for the purpose of co-parenting. In contrast, defendant

asserted that the relationship between plaintiff and Perez was

intertwined beyond conception and co-parenting their daughter.

Defendant alleged that the relationship possessed elements of

cohabitation, including subsidizing each other's finances, shared

living arrangements and household duties, recognition of their

relationship   in   family   circles   and   on   social   media   and

participation in the lives of each other's families.

     During the hearing, the evidence showed that, despite Perez'

marriage to someone else on September 20, 2013, and having a child

from that union, plaintiff and Perez spent up to five nights per

week together at each other's home, both prior to and subsequent

to Perez' marriage.    They also traveled together, both with and

without their daughter, vacationed together, shared responsibility

for household chores and held themselves out as a married couple,

particularly on social media.        Additionally, plaintiff hosted

Perez' family at her home, including his mother who traveled from

the Dominican Republic, Perez' home country, when plaintiff gave

birth to their daughter, and again in December 2013 to celebrate

a traditional Dominican Christmas as a family.    Perez' sisters and



                                 5                            A-3649-14T3
brothers also visited plaintiff's home frequently, with two of his

sisters staying overnight.

     The trial judge described Perez as follows:

               Perez who fashions himself as a ladies'
          man, spent 18 1/2 years in federal prison for
          cocaine distribution, was released in or about
          2008 and since released has not held a steady
          job; yet Perez speaks as a self-proclaimed
          jet-setter with a high profile New York club
          nightlife, frequent dinners out, designer
          clothing, and high-end automobiles.       Most
          interestingly, Perez, after the [d]efendant's
          post-judgment motion was filed, married . . .
          but made clear during testimony that fidelity
          forms no part of his marital vows.

               . . . .

               Perez was very evasive in answering
          questions presented to him, particularly
          regarding the frequency with which he stayed
          or   continues     to   stay    overnight   in
          [plaintiff's] Englewood Cliffs home.        It
          became patently clear to the [c]ourt that it
          was in Perez' self-interest to maintain that
          he did not stay overnight in [plaintiff's]
          home, as overnights outside of New York,
          without   the   permission   of   his  federal
          probation officer would be a violation of his
          probation.1   Despite Perez claiming that he
          received permission from his probation officer
          for every overnight he spent in [plaintiff's
          home], the [c]ourt finds suspect that Perez
          could have presented unbiased third-party
          proofs from his probation officer to lend
          credibility to his testimony, but failed to
          do so.



1
  We believe the judge intended to refer to Perez being on parole
under the supervision of a parole officer.

                                6                          A-3649-14T3
                 Perez described the inception of his
            relationship with the [p]laintiff as a "goof."
            He thought [p]laintiff's idea of a designer
            baby was a joke, a game to [p]laintiff. He
            claims to be "not the type of person to be in
            one place" and that he "collects women as a
            hobby."

       Evidence of plaintiff and Perez' cohabitation was further

corroborated by Bojekian's investigation.             Bojekian conducted

database searches that showed plaintiff's address as an address

associated with Perez.     Bojekian's investigation of a Connecticut

and a New York address also associated with Perez revealed that

Perez was not residing at either address.         Bojekian also installed

a pole camera to conduct video surveillance of plaintiff's home

over   a   fourteen-day   period,    beginning    July   29,   2014.        The

surveillance footage revealed Perez at the home during eight of

the fourteen days, where he engaged in activities such as taking

out the garbage, picking up the newspaper, conversing with a

neighbor, carrying packages into the home, emptying the trunk of

plaintiff's    car,   operating     plaintiff's    BMW   and   the      Ducati

motorcycle plaintiff purchased for him, and washing her BMW and

Mercedes in the driveway.      These activities occurred long after

Perez' September 20, 2013 marriage.

       Neither plaintiff nor Perez disputed sharing household chores

in plaintiff's home.       Both testified that plaintiff did the

cooking, laundry and light cleaning, while Perez retrieved mail,

                                     7                                 A-3649-14T3
took out the garbage, washed the cars, assisted with heavy duty

cleaning, painted the entire house, repaired the sprinkler system

and maintained the home security system.         In family circles and

social media, plaintiff and Perez referred to each other as husband

and wife.   Plaintiff explained that "holding ourselves out . . .

in public like we really are married" was basically for the benefit

of their daughter.     She also testified that "in that Spanish

community," those terms were "used very . . . loosely."       Plaintiff

and Perez also purchased matching wedding rings from a pawnshop,

which they characterized in their testimony as "friendship rings."

In their postings on Facebook, Instagram and Twitter, plaintiff

referred to Perez as her "hubby," "boo-boo," "love," "world[,]"

"partner[,]" "life[,]" and Perez referred to plaintiff as his

"wife," "wifey[,]" "love," "partner," and "life."            Perez also

referred to plaintiff's residence as his "home."

     In a series of photographs posted by Perez depicting the

interior of plaintiff's garage with her expensive automobiles,

Perez wrote "[m]y garage is looking good" and "nice day gone

[cruising] in my [Mercedes] 500SL."           When confronted with the

postings,   Perez    explained   that    he     purposely   made     false

representations to deceive people.      In recounting Perez' testimony

in that regard, the judge observed:



                                  8                                A-3649-14T3
             [H]e is gratified about what he testifies is
             his purposeful deceit of people. He testified
             that the majority of his Facebook, Instagram
             and Twitter posts were not legally or
             factually accurate, but rather are oftentimes
             specifically posted to either deceive or
             aggravate others.      His testimony speaks
             volumes about his untrustworthiness.

       Evidence also showed that plaintiff essentially supported

Perez and members of his family, and her spending and unexplained

bank deposits far exceeded defendant's alimony obligation, which

she claimed was her only source of income.                  Documentary evidence

in   the   form     of   cancelled    checks   showed      that   plaintiff     paid

significant sums of money either directly to Perez or to third

parties on his behalf.               Over an eighteen-month period, from

February 6, 2011 to September 27, 2012, these cancelled checks

totaled      over   $23,000,     in    addition      to    plaintiff     purchasing

expensive gifts for Perez, such as the $18,000 Ducati motorcycle.

Plaintiff claimed that she was essentially paying Perez for work

he performed on her home.

       Although plaintiff had not worked in thirteen years, her Case

Information Statement (CIS) showed expenses totaling $12,265 per

month, or $147,180 per year, which exceeded defendant's alimony

payments by $60,780 per year.          Plaintiff explained that her mother

paid   the    mortgage     and   property    taxes    on    her   home   and   would

sometimes help her out financially.               However, from 2011 through


                                         9                                  A-3649-14T3
the middle of 2013, plaintiff's bank statements showed average

monthly deposits of $21,000, a sum far exceeding her monthly needs

as   reflected    on   her   CIS   and    monthly   alimony   payments   from

defendant.       Plaintiff attributed her excess deposits to funds

received from a pre-marital Franklin-Templeton bond account worth

approximately $90,000, and her receipt of equitable distribution

from an IRA Rollover totaling approximately $180,000.              However,

even accounting for these additional sources, plaintiff was still

depositing unaccounted for funds at an average of $21,000 per

month.

      The judge described plaintiff's finances thusly:

                The testimony of [p]laintiff and Perez
           as it relates to their finances can best be
           described as farcical. . . .

                Perez asserts that he owns a hotel in the
           Dominican Republic and a home in Connecticut,
           but does not live there, only uses the address
           for the purpose of insuring his automobile at
           reduced rates. He testifies to providing very
           limited monies to [p]laintiff for their mutual
           child.   In fact, his contribution seems to
           have been purchasing pampers or milk, on
           occasion.

                  . . . .

                Listening to [p]laintiff's testimony
           makes clear that she receives little to no
           financial support from Perez, but instead
           serves as the primary, if not only, means of
           financial support for Perez and the daughter
           they share in common.


                                     10                              A-3649-14T3
               In addition to funding his living
          expenses in [plaintiff's home], [p]laintiff,
          on occasion, has paid her paramour's rent, his
          dental expenses, his automobile insurance, and
          his gym membership. She purchased an $18,000
          Ducati   motorcycle   for   him,   which   she
          registered in his name.      She has further
          lavished him with a $2,500.00 Gucci watch, a
          $600.00 fur coat, Botox injections, and has
          allowed him to use her luxury vehicles.

               Plaintiff allows Perez to provide no
          meaningful monetary support to their mutual
          child.   She welcomes, Perez, his "wife" and
          their new child into her home and provides for
          them as well. Eerily, Perez has some Svengali
          effect upon plaintiff.    It is almost as if
          they live in a commune with no one but
          [p]laintiff contributing to the financial
          well-being of the clan.

               . . . .

               Plaintiff also testified that she is
          incapable of working due to back injuries she
          sustained in an automobile accident in 2013,
          which aggravated a prior disc herniation.
          Despite [p]laintiff's claim of inability to
          work, not a scintilla of medical evidence was
          presented to the [c]ourt to support that
          claim.   Further, [p]laintiff had no trouble
          in traversing the courtroom in 3 1/2" stiletto
          heels.

     Nonetheless, plaintiff portrayed her economic situation as

dire.   She testified that at different times, her utilities and

cable service were shut off, her credit card payments on her

thirteen cards were overdue, her car insurance lapsed and her BMW

was repossessed.   Defendant acknowledged during his testimony that

plaintiff "had a terrible drug problem" and he had worked hard

                                11                          A-3649-14T3
while they were together to get her off drugs.                        According to

defendant, after the parties separated, he would visit plaintiff

every two weeks to drop off her check and remove his personal

belongings from the residence. During one of his visits, defendant

observed drug paraphernalia and an unfamiliar phone containing

text messages for drug deals.

     Following the hearing, in a written opinion, Judge Bonnie J.

Mizdol   granted     defendant's   motion         and    terminated    his    alimony

obligation as of the March 25, 2013 filing date.                        Relying on

Konzelman    v.     Konzelman,   158     N.J.      185     (1999),    Judge     Mizdol

determined    that    the    provision      of    the     PSSA   allowing     for   the

modification or termination of alimony was an enforceable contract

as "there [was] no dispute that the parties entered into their

PSSA knowingly and voluntarily after it had been negotiated with

the help of independent counsel" and "[i]ts fairness and equity

[was] not challenged."        Judge Mizdol interpreted the PSSA "to mean

that [she] should apply the facts, statutory law, and case law in

existence at the time the [c]ourt is called upon to make the

cohabitation determination."

     The    judge    found   further     "that      the    anti-Lepis   provisions

contained in Article 3.4 of the PSSA [were] wholly inapplicable

to an allegation of cohabitation."               She noted "[t]o find otherwise

would require the [c]ourt to find that the cohabitation language

                                       12                                      A-3649-14T3
of Article 3.2 was entirely superfluous to the PSSA and despite

any cohabitation" by plaintiff, "[d]efendant would not be entitled

to seek termination or modification of his alimony obligation[,]"

an interpretation Judge Mizdol characterized as "nonsensical."

After finding the anti-Lepis provision inapplicable, Judge Mizdol

noted that modification or termination of alimony is justified

"whenever changed circumstances substantially modify the economic

conditions of the parties."        Further, "'the dependent spouse's

cohabitation with another'" was "[s]pecifically included in the

changed circumstances to be considered" by the court.

     Recognizing      that   her   task    was   "to    determine    whether

circumstances have rendered all or a portion of the support

received unnecessary[,]" Judge Mizdol applied the principles of

Garlinger v. Garlinger, 137 N.J. Super. 56 (App. Div. 1975) and

Gayet v. Gayet, 92 N.J. 149 (1983), as well as the amended alimony

statute,   N.J.S.A.    2A:34-23,    to    conclude     that   "the   evidence

presented at the hearing proved overwhelmingly that [p]laintiff

was cohabiting with Perez."        The judge determined further that

plaintiff failed "to prove lack of intertwinement and continued

need."     Rather, the "proofs unequivocally demonstrate[d] that

[p]laintiff has been funding her paramour's lifestyle."

     In making factual findings, Judge Mizdol found "the candor

of [p]laintiff and Perez waned" and even questioned "the veracity

                                    13                                A-3649-14T3
of the marriage of Perez shortly after the motion to terminate

alimony was filed."    Notably, the judge observed "[p]laintiff

'creaming' her arms with body lotion during witness examination,

almost as if the proceedings were akin to casual entertainment,

rather than a trial proceeding." Although Judge Mizdol was "unable

to solve the mystery of the source of the sizeable deposits made

to [p]laintiff's bank account on a monthly basis," she determined

that "[p]laintiff's access to the funds cannot be denied."

     In considering defendant's financial ability, Judge Mizdol

explained:

               The [c]ourt is mindful that [d]efendant's
          Case    Information   Statement[]    .   .   .
          demonstrates that he has the financial ability
          to sustain alimony payments to [p]laintiff.
          However, his ability is not the test, but
          merely one of the factors the [c]ourt needs
          to consider.     That he has a contractual
          obligation to [p]laintiff is without question.
          That   his   contractual  obligation   is   to
          [p]laintiff and [p]laintiff alone is also
          without question.

The judge concluded:

               The evidence presented establishes that
          [d]efendant is funding not only [p]laintiff's
          large lifestyle, but the large lifestyle of
          [p]laintiff's paramour, their mutual child,
          and her paramour's extended family in some
          communal   like    clan   fashion;  financial
          obligations that are in no way [d]efendant's
          obligations.    Defendant is not required to
          contribute toward the support of his former
          spouse's paramour or the members of whatever


                               14                            A-3649-14T3
                contemporary lifestyle [p]laintiff chooses to
                fund. Such a finding would be unconscionable.

Judge Mizdol entered judgment for $111,600 in favor of defendant,2

and awarded defendant counsel fees totaling $14,470.50.                           This

appeal followed.

      On    appeal,       plaintiff     argues   the   judge   erred    in   finding

cohabitation.       Plaintiff asserts that "[i]f anything, the alimony

obligation should have been modified during the time period in

which the [t]rial [c]ourt believed [plaintiff] was cohabiting with

[Perez]" and "reinstated . . . in full" once the court believed

the   cohabiting      ceased.         Further,   plaintiff     argues   the     judge

improperly relied on plaintiff's "access to additional funds" to

determine "that she failed to prove her continued need for support"

because the PSSA expressly exempted "additional income" from any

source     by    either    party   as    constituting    changed    circumstances

warranting a modification.

      After carefully reviewing the record, we affirm substantially

for the reasons expressed by Judge Mizdol in her comprehensive and

well-reasoned written opinion of March 2, 2015.                    Judge Mizdol's



2
  The judgment amount was calculated based on defendant making
monthly payments of $7,200 from April to December 2013, and monthly
payments of $3,600 from January 2014 to February 2015, when the
court granted defendant's application to reduce his alimony
payment pendente lite to avoid overpaying while awaiting the
hearing.

                                          15                                  A-3649-14T3
factual findings are well-supported by "substantial, credible

evidence" in the record, particularly given the credibility issues

involved, our limited scope of review, and the deference we accord

"to family court [fact-finding]."          Cesare v. Cesare, 154 N.J. 394,

411-13 (1998).     We are also satisfied that Judge Mizdol's legal

conclusions, which are subject to our plenary review, are sound.

Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007).                  We

add only the following comments.

     New Jersey embraces the resolution of marital controversies

through    property     settlement     agreements        (PSA),    which    are

voluntarily   entered    into   and    promote    post-divorce     stability.

Konzelman, supra, 158 N.J. at 193-94.             PSAs are enforceable in

equity and governed by basic contract principles.                 Id. at 194.

"Among    those   principles    are   that    courts    should    discern   and

implement the intentions of the parties.               Thus, when the intent

of the parties is plain and the language is clear and unambiguous,

a court must enforce the agreement as written, unless doing so

would lead to an absurd result."           Quinn v. Quinn, 225 N.J. 34, 45

(2016).

     Provided both parties have knowingly and voluntarily agreed

to the contingency, a provision in a PSA that terminates an alimony

obligation upon a finding of a dependent spouse's cohabitation is

valid and enforceable, regardless of the economic consequences.

                                      16                               A-3649-14T3
Konzelman, supra, 158 N.J. at 196-97.                     "It is irrelevant that the

cohabitation        ceased       during     trial    when      that    relationship         had

existed      for        a    considerable        period   of    time.          Under     those

circumstances, when a judge finds that the spouse receiving alimony

has cohabited, the obligor spouse is entitled to full enforcement

of the parties' agreement."                 Quinn, supra, 225 N.J. at 55.

      Cohabitation involves an "intimate," "close and enduring"

relationship, requiring "more than a common residence" or mere

sexual liaison.             Konzelman, supra, 158 N.J. at 202.                 Cohabitation

involves conduct whereby "the couple has undertaken duties and

privileges that are commonly associated with marriage."                                  Ibid.

Indicia of cohabitation may also "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."                              Ibid.

The   2014    amendment          to   the   alimony       statute,      that    sets     forth

considerations that bear upon cohabitation                            issues, authorizes

suspension         or       termination     of     alimony     once     cohabitation          is

established.        N.J.S.A. 2A:34-23(n).

      Changed circumstances resulting from a dependent spouse's

cohabitation        warrant       modification        "when     (1)    the     third     party

contributes to the dependent spouse's support, or (2) the third

party resides in the dependent spouse's home without contributing

                                             17                                        A-3649-14T3
anything toward the household expenses."   Gayet, supra, 92 N.J.

at 153.   Simply stated, modification is required "only if one

cohabitant supports or subsidizes the other under circumstances

sufficient to entitle the supporting spouse to relief."   Id. at

153-54.   "[A] rebuttable presumption of changed circumstances

[arises] upon a prima facie showing of cohabitation.   The burden

of proof, which is ordinarily on the party seeking modification,

shifts to the dependent spouse" to "show that there is no actual

economic benefit to the spouse or the cohabitant."     Ozolins v.

Ozolins, 308 N.J. Super. 243, 245, 248-49 (App. Div. 1998).      To

rebut the presumption, a dependent spouse must prove he or she

remains dependent on the former spouse's support.   Gayet, supra,

92 N.J. at 154-55.   Here, Judge Mizdol correctly determined that

plaintiff failed to meet her burden of proof.

    Affirmed.




                               18                         A-3649-14T3
