                         NOT FOR PUBLICATION WITHOUT THE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-0441-15T2

ELENA KLYACHMAN,

        Plaintiff-Respondent,

v.

MICHAEL J. GARRITY,

        Defendant-Appellant.

___________________________________

              Argued November 2, 2016 – Decided June 26, 2017

              Before    Judges    Fuentes,    Carroll    and   Gooden
              Brown.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Bergen County,
              Docket No. FM-02-1642-12.

              Michael E. Spinato argued the cause for
              appellant (Michael E. Spinato, P.C., attorney;
              Jacqueline M. Pimpinelli, on the brief).

              Deirdre Rafferty Thompson argued the cause for
              respondent (Trapanese & Trapanese, attorney;
              Ms. Rafferty Thompson, on the brief).

PER CURIAM

        Defendant Michael J. Garrity and plaintiff Elena Klyachman

married in October 1999 and divorced on July 24, 2012.                   They had

one child, a girl born in 2003 who will be fourteen years old in
December 2017.    The final judgment of divorce (JOD) incorporated

the terms of a Property Settlement Agreement (PSA), which the

parties    voluntarily   negotiated     and    entered   into    with    the

assistance of independent counsel.        The PSA addressed all of the

issues associated with the dissolution of the marriage.

       This appeal concerns the interpretation and enforcement of

Articles III and IV of the PSA. Article III delineates defendant's

obligation to pay plaintiff limited duration alimony in the sum

of $21,000 per year for a period of six years, commencing August

1, 2012.    At issue here is Subsection 3.3(d), which terminates

this   alimony   obligation   if   plaintiff    "cohabitat[es]    with    an

unrelated person in accordance with applicable New Jersey Law."

       Article IV of the PSA addresses the child's custody and

parenting time.    It was supplemented by a Consent Order executed

by the parties on May 18, 2012.         Article IV comprehensively and

meticulously describes the custodial and decision-making protocols

for apprising and involving the parents of any matter touching

upon the child's health and emotional           well-being. By way of

example, Subsection 4.6 under Article IV "expressly" prohibits the

parties from doing

           anything to alienate the child's affection or
           to color the child's attitude toward the
           other.   On the contrary, both parties shall
           cooperate in every way to help the child
           better adjust [herself] to the circumstances

                                    2                              A-0441-15T2
          as they now exist, and may in the future exist.
          Both parties shall conduct themselves in a
          manner that shall be best for the interest,
          welfare and happiness of the child, and
          neither party shall do anything, which shall
          adversely affect the morals, health and
          welfare of the child.

     The Consent Order also requires the parties to "consult and

confer with each other with regard to all major issues relating

to the child's health, safety, welfare and education."      Under the

Consent Order, the parties agree "to attempt to work together

[and] to make decisions that are in the best interest[s] of the

child."

     On July 21, 2015, defendant filed a post-judgment motion in

the Family Part seeking to terminate his alimony support obligation

under Article III, Subsection 3.3(d) of the PSA, claiming plaintiff

was in a romantic relationship and "cohabiting" with an unrelated

man, as that term is defined in N.J.S.A. 2A:34-23(n).       Defendant

also sought to modify the parenting time arrangement from one that

designated plaintiff as "the parent of primary residence" to a

shared-custody arrangement because he recently purchased a house

in the Borough of Fair Lawn that had a separate bedroom for his

teenaged daughter.

     Plaintiff   filed   a   cross-motion   opposing    defendant's

application and seeking to compel defendant to pay his fair share

of the child's extracurricular activities, provide proof he is

                                3                             A-0441-15T2
maintaining life insurance as required under the PSA, and refrain

from disparaging plaintiff in the child's presence. In particular,

plaintiff    claims    defendant   made   derogatory   remarks    about   her

cultural background as a Russian immigrant.

      The only evidence presented to the Family Part in support of

the   relief    requested    came    from    the   parties'      conflicting

certifications.       After considering the arguments of counsel, the

judge denied both motions.         With respect to defendant's motion,

the judge found his certifications did not allege sufficient facts

to establish cohabitation within the meaning of N.J.S.A. 2A:34-

23(n).   The judge also found defendant did not present sufficient

facts to establish a prima facie case of changed circumstances to

warrant a plenary hearing concerning the custody of the child.

      In this appeal, defendant argues the Family Part erred when

it found he did not assert sufficient facts to warrant a plenary

hearing on both of these issues.            We agree and remand for the

Family Part to enter a case management order (CMO) permitting the

parties to conduct limited discovery on both issues raised by

defendant.     At the conclusion of discovery, the judge shall

determine whether a plenary hearing is warranted and make factual

findings and conclusions of law based on the evidence presented

therein.



                                     4                               A-0441-15T2
                                       I

                                 Cohabitation

     In the certification submitted in support of the motion to

terminate   his    limited    duration     alimony   obligation,   defendant

averred that plaintiff has had an ongoing romantic relationship

with her coworker for the past ten years, which predates the filing

of the divorce complaint.         Defendant claims plaintiff has taken

many vacations in which both her daughter and her paramour's own

children shared a common residence.          He also claims plaintiff and

this man openly present themselves as husband and wife at social

gatherings.

     According to defendant, starting in June 2015, plaintiff's

paramour "rented the top floor of the two-family home where

[p]laintiff resides and occupies the first floor."                  Although

defendant does not know whether they have "intertwined their

finances," he claims they are cohabitating as husband and wife in

all other respects.          Defendant argues he presented sufficient

evidence    of    cohabitation    to   justify   court-ordered     discovery

limited to plaintiff's finances.

     In her response certification, plaintiff denied she has had

"a romantic relationship" with a coworker for ten years.             But she

conceded she has "a boyfriend and [d]efendant is upset that I am

happy."     Plaintiff denied living with anyone other than her

                                       5                             A-0441-15T2
daughter.   She admitted she lives in a two-family house and "[t]he

man I am now dating . . . is renting the other apartment." However,

she characterized this arrangement as "neighbors" not cohabitants.

Plaintiff also confirmed that she and her daughter have vacationed

with her boyfriend and his children.     She denied any suggestion

that she ever intermingled her finances with her boyfriend.

     The Legislature requires a Family Part judge to consider the

following statutory factors in determining whether alimony should

be suspended or terminated:

            Alimony may be suspended or terminated if the
            payee    cohabits   with    another   person.
            Cohabitation involves a mutually supportive,
            intimate personal relationship in which a
            couple has undertaken duties and privileges
            that are commonly associated with marriage or
            civil union but does not necessarily maintain
            a single common household.

            When   assessing whether cohabitation       is
            occurring, the court shall consider        the
            following:

                 (1) Intertwined finances such as
                 joint bank accounts and other joint
                 holdings or liabilities;

                 (2) Sharing or joint responsibility
                 for living expenses;

                 (3) Recognition of the relationship
                 in the couple's social and family
                 circle;

                 (4) Living together, the frequency
                 of contact, the duration of the
                 relationship, and other indicia of

                                  6                          A-0441-15T2
                a   mutually  supportive     intimate
                personal relationship;

                (5) Sharing household chores;

                (6) Whether the recipient of alimony
                has received an enforceable promise
                of support from another person
                within the meaning of subsection h.
                of [N.J.S.A.]25:1-5;1 and

                (7) All other relevant evidence.

           [N.J.S.A. 2A:34-23(n) (emphasis added).]

     The   motion   judge   acknowledged   that   a    court   "may   find

cohabitation in instances where the parties are not actually living

together."   The judge also observed that "there doesn't appear to

be any intertwining of finances or expenses."         With respect to the

duration of the relationship, the judge found "[t]hey have been

going out for a long time."     The motion judge finally concluded:

           [T]here are factors which weigh in favor of a
           finding of cohabitation, and there are
           factors, frankly, that weigh against it.     I
           realize that often courts are compelled to
           conduct plenary hearings when there are
           material issues of disputed fact.      I don't
           believe in this case, although I acknowledge
           that the plaintiff, again, there's no disputed
           fact here, the plaintiff and her boyfriend
           live under the quote "same roof" end quote.
           But . . . the evidence I've heard and the
           submissions and the certifications leads me
           to believe that the defendant has not made out
           a prima facie showing of cohabitation.

1
  N.J.S.A. 25:1-5 refers to a legally binding written promise of
support which replaced the common law oral agreements commonly
known as "palimony."

                                   7                              A-0441-15T2
       It is well-settled that disputes of material facts should not

be resolved on the basis of certifications.         Palmieri v. Palmieri,

388 N.J. Super. 562, 564 (App. Div. 2006). This is because warring

certifications have the "unfortunate effect of yielding more heat

than   light,   ultimately   leaving   unresolved    the   central    issues

raised by the parties."      D.A. v. R.C., 438 N.J. Super. 431, 439

(App. Div. 2014).    It is undisputed that Article III, subsection

3.3(d) of the PSA provides for the termination of alimony if

defendant shows plaintiff cohabitates "with an unrelated person

in accordance with applicable New Jersey law." The parties further

agree that the phrase "applicable New Jersey law" refers to the

standards established by the Legislature in N.J.S.A. 2A:34-23(n).

       Here, the motion judge found plaintiff is in a long-term

romantic relationship with an unrelated man who now resides in the

same two-family dwelling that she occupies. Defendant also alleged

plaintiff and her paramour vacation together with both of their

children and present themselves as husband and wife in social

gatherings.     Based on this record, we are satisfied the motion

judge erred in not affording defendant the opportunity to conduct

limited discovery to develop competent evidence to prove his case

in a plenary hearing. The Family Part Judge retains the discretion

to limit both the scope and method of discovery.



                                   8                                 A-0441-15T2
      With respect to the issue of alimony, we suggest the motion

judge limit the scope of discovery to the statutory factors in

N.J.S.A. 2A:34-23(n) and the method for gathering evidence to a

limited    number   of    written    interrogatories          and    production     of

documents.       The judge also has the discretion to permit the

deposition of the parties.

                                         II

                         CHILD CUSTODY MODIFICATION

      Defendant's current parenting time arrangement allows his

daughter to stay with him on Tuesdays and Thursdays, from 6:00

p.m. to 8:00 p.m., and on alternate weekends, from Friday through

Sunday night.     Defendant claims that over the past several months,

his   teenaged    daughter    becomes         "sad   and    sullen    as   the   time

approaches for our weekend parenting time to end."                   In support of

his request to modify the current custodial arrangement, defendant

emphasizes that he purchased a home two miles away from plaintiff's

residence in Paramus; the child has her own bedroom in that house.

      In   her   certification      in   response      to    defendant's    motion,

plaintiff claimed defendant "had and still has a serious drinking

problem."    Plaintiff also noted that defendant "rents his basement

to a single male on weekends who may have similar problems[.]

. . . It is for this reason I am nervous when [the child] has to

spend overnights in [d]efendant's house."                  Plaintiff also alleged

                                         9                                   A-0441-15T2
that defendant was violent and unduly possessive during their

marriage.     With respect to her child's well-being, plaintiff

alleged that her daughter "returns home telling me that her father

degrades    whatever     activity   [the    child]     is    interested      in

participating.      He    is   attempting   to   mold       [her]   into   the

isolationist he is."

     Plaintiff and defendant acknowledged in their respective

certifications     that    their    daughter     has    participated         in

psychotherapy.    But they disputed whether the therapy furthers her

best interests and sought the court's intervention on the matter.

The language in the parties' certifications reveals that they

inflexibly maintain conflicting positions about the best interests

of their teenaged daughter.

     Addressing this issue, the motion judge made the following

ruling:

            So I'm going to order that in lieu of a plenary
            hearing on the custody issue, I don't believe
            that we need to have . . . joint residential
            custody.   I don't think [defendant] made a
            showing that [the child's] life needs to be
            disrupted. I understand that they live only
            two miles apart from each other, but I agree
            with plaintiff's counsel, I don't think that
            her life needs to be disrupted to that extent,
            but I do believe that the defendant should be
            entitled to more time with the child.

            And I think given . . . the fact that the
            parties agreed to have a particular parenting
            time schedule back in 2012, it should be

                                    10                                A-0441-15T2
            enforced,   including         overnights     at   the
            defendant's residence.

     Defendant argues the motion judge erred in reaching this

decision without addressing any of the factors in N.J.S.A. 9:2-4.

We agree.    "In contested cases, the court is required to make a

record of its reasons for its custody decision[.]"             Kinsella v.

Kinsella, 150 N.J. 276, 317 (1997) (citing N.J.S.A. 9:2-4f).                It

also "must reference the pertinent statutory criteria with some

specificity[.]"      Ibid. (quoting Terry v. Terry, 270 N.J. Super.

105, 119 (App. Div. 1994)).       Absent the statutory factors, a court

cannot   determine    if   a   custodial   arrangement    serves    the   best

interests of a child.      D.A., supra, 438 N.J. Super. at 450.

     Although not raised by the parties, we are compelled to note

that "[i]n family actions in which the court finds that either the

custody of children or parenting time issues, or both, are a

genuine and substantial issue, the court shall refer the case to

mediation in accordance with the provisions of [Rule] 1:40-5."              R.

5:8-1 (emphasis added).        Finally, given the child's age, we also

recommend that the Family Part consider whether it would be

appropriate to interview the child as provided by Rule 5:8-6.              See

also D.A., supra, 438 N.J. Super. at 455 (holding "the decision

whether to interview a child in a contested custody case is left

to the sound discretion of the trial judge").


                                     11                              A-0441-15T2
                                    III

                                Conclusion

     We reverse the ruling of the Family Part and remand for the

court    to   permit   defendant   to    conduct   limited   discovery      to

determine:    (1)   whether   defendant    can   prove   plaintiff   is   not

entitled to limited duration alimony under Article III, Subsection

3.3(d) of the PSA, because she cohabitates with an unrelated man

under N.J.S.A. 2A:34-23(n); and (2) whether changing the custodial

arrangement of the parties' teenaged daughter serves her best

interests.     In making these determinations, the Family Part shall

apply the factors in N.J.S.A. 9:2-4, refer the case to mediation

under Rule 5:8-1, and consider interviewing the child under Rule

5:8-6.    We leave the scope and method of discovery to the sound

discretion of the Family Part.

     Reversed and remanded.        We do not retain jurisdiction.




                                    12                               A-0441-15T2
