                                NOT FOR PUBLICATION WITHOUT THE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-3997-18T1

THOMAS J. KELLY,

          Plaintiff-Respondent,

v.

ELIZABETH A. BRANNIN,

     Defendant-Appellant.
________________________

                    Argued telephonically June 17, 2020 –
                    Decided July 15, 2020

                    Before Judges Koblitz and Gilson.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Morris County,
                    Docket No. FM-14-0495-05.

                    Amy Frances Gjelsvik argued the cause for appellant
                    (Paris P. Eliades Law Firm, LLC, attorneys; Amy
                    Frances Gjelsvik, on the briefs).

                    James Clark Jensen argued the cause for respondent
                    (Laufer, Dalena, Jensen, Bradley & Doran, LLC,
                    attorneys; James Clark Jensen, of counsel and on the
                    brief; Kory A. Crichton, on the brief).
PER CURIAM

      Defendant Elizabeth A. Brannin appeals from a March 8, 2019 order

entered after an evidentiary hearing. Judge Noah Franzblau found she had been

cohabitating since November 25, 2015 and eliminated her alimony as of that

date, pursuant to the parties' marital settlement agreement (MSA). We affirm

substantially for the reasons articulated in Judge Franzblau's March 8, 2019 oral

opinion, deferring to his credibility assessments as we must. Cesare v. Cesare,

154 N.J. 394, 412 (1998).

      The parties, who have no children, were married in 1989. In their MSA,

which was incorporated into their 2005 judgment of divorce, the parties agreed

that plaintiff would pay defendant permanent alimony of $1700 per month. The

alimony provision also stated that alimony would cease if defendant cohabitated

or remarried.

      In July 2017, plaintiff Thomas J. Kelly filed a motion to terminate alimony

contending that defendant was cohabitating with Jeffrey Kastner, whom she

acknowledged living with since November 2015.          The parties and Kastner

testified at the hearing. Judge Franzblau found plaintiff to be credible and

defendant and Kastner to be incredible. The judge found that defendant and

Kastner rented a one-bedroom apartment in Cary, North Carolina and lived there


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                                       2
for twenty months from November 25, 2015 to June 2017. Thereafter, they

moved back to New Jersey and lived together in a home, that Kastner had

inherited from his deceased brother, for an additional twenty-one months by the

time of the hearing, sharing one bathroom and all living expenses. Although

generally reclusive, they attended a wedding together. Both defendant and

Kastner testified that they were platonic roommates who lived together as

friends out of convenience. Neither one was employed.

      Relying on the definition of cohabitation found in Konzelman v.

Konzelman, 158 N.J. 185, 202 (1999), which both parties acknowledge is the

relevant standard, Judge Franzblau explained his credibility determinations,

finding plaintiff's "credibility was bolstered by his calm demeanor, his attempts

to answer all questions directly and completely, the consistency between his

testimony and supporting documentation, and by his potential admissions

against interest." In contrast, the judge found defendant and Kastner's testimony

incredible, finding the two, who had been sequestered during trial, contradicted

each other, were "combative," "defied logic" and their "testimony [was]

unsupported by documentary evidence." The judge gave numerous examples of

their testimony that lent support to these findings.




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                                        3
      On appeal, defendant makes two arguments, contending that the trial

judge erred in holding a plenary hearing because another judge earlier found

plaintiff had failed to make a prima facie showing of cohabitation, and that the

judge abused his discretion in finding that defendant was cohabitating with

Kastner.

      In a February 2, 2018 order another judge found insufficient prima facie

evidence of cohabitation had been presented "given the rambling context of the

exhibit to the [c]ertification of Jeffrey Kastner," but nonetheless ordered

discovery, after which that judge ordered a plenary hearing. A prima facie case

of cohabitation should be demonstrated prior to discovery proceeding. Donnelly

v. Donnelly, 405 N.J. Super. 117, 131-32 (App. Div. 2009). The order also

reflected that defendant conceded she lived with Kastner. Although the order

was inartfully worded, it makes no practical sense to reverse the detailed ,

thoughtful conclusions of a trial judge, based on a full plenary hearing due only

to mistaken wording of a preliminary order. Such a decision would elevate form

over substance, requiring the parties to bear the expense of a new hearing, which

would undoubtedly result in the same outcome.

      Finally, defendant argues that the judge was presented with insufficient

evidence of an "intimate romantic relationship" or intertwined finances. Kastner


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                                       4
and defendant lived together in two states located a significant distance apart for

lengthy periods of time. Judge Franzblau had the opportunity to observe their

demeanor and assess their credibility when they both denied a romantic

relationship or intertwined finances. We accept his assessment for the sound

reasons expressed in Judge Franzblau's decision. "Because a trial court 'hears

the case, sees and observes the witnesses, [and] hears them testify,' it has a better

perspective than a reviewing court in evaluating the veracity of witnesses."

Cesare, 154 N.J. at 412 (alteration in original).       We defer to family court

factfinding because of its "special jurisdiction and expertise in family matters."

Id. at 413.

      Affirmed.




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