                                NOT FOR PUBLICATION WITHOUT THE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-3279-18T3

CAROLYN SMITH-BARRETT,

         Plaintiff-Appellant,

v.

MICHAEL SNYDER,

     Defendant-Respondent.
___________________________

                   Argued January 15, 2020 – Decided February 5, 2020

                   Before Judges Koblitz, Whipple and Mawla.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Hunterdon County,
                   Docket No. FM-10-0329-06.

                   Diana N. Fredericks argued the cause for appellant
                   (Gebhardt & Kiefer, PC, attorneys; Diana N.
                   Fredericks, on the briefs).

                   Franklin G. Whittlesey argued the cause for respondent
                   (Scholl & Whittlesey, LLC, attorneys; Franklin G.
                   Whittlesey, on the brief).

PER CURIAM
      Plaintiff Carolyn Smith-Barrett appeals from the March 19, 2019 order

denying her application to terminate her alimony to her former husband,

defendant Michael Snyder, based on his cohabitation. We agree that plaintiff

presented insufficient evidence of cohabitation to require further discovery at

that time and affirm.

                            I. Factual background.

      The parties were married on August 31, 1986 and have two emancipated

children. A final judgment of divorce with a Property Settlement Agreement

(Agreement) was entered on November 13, 2007.

      Based upon defendant's lack of income, the Agreement provided that

plaintiff would pay defendant alimony of thirty percent of plaintiff's gross

annual base salary, with the applicable salary capped at $230,000 annually.

Defendant's current alimony award was $2280 biweekly based on plaintiff's

current salary of $197,600.    The Agreement also required plaintiff to pay

additional alimony of twenty percent of her total gross annual bonus, with the

additional alimony capped at $15,000 per annum.

      Three provisions in the Agreement are relevant to plaintiff's appeal of the

denial of her motion to terminate alimony. Paragraph 9 states:

            [Plaintiff's] obligation to pay alimony to [defendant]
            shall terminate upon the earliest occurrence of any one

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                                       2
               or more of the following events: . . . (3) remarriage of
               [defendant]; or (4) cohabitation of [defendant] with an
               unrelated female. Termination based upon one of the
               foregoing events shall be effective on the date of the
               event or occurrence. [Defendant] shall have an
               affirmative obligation to advise [plaintiff] of his
               remarriage or cohabitation within seven (7) days of the
               event.

        Paragraph 55 provides that "[i]n the event of any dispute arising out of

this Agreement or the performance thereof, [defendant] and [plaintiff] agree that

all attempts should be made between them to settle the dispute by [a]greement

before using the courts for any determination."           Paragraph 56 states that

"[s]hould either [defendant] or [plaintiff] fail to abide by the terms of this

Agreement, the defaulting party will indemnify the other for all other reasonable

expenses and costs, including attorneys fees incurred in successfully enforcing

this Agreement."

        On June 25, 2018, plaintiff hired a private investigator to determine

whether defendant was cohabiting with K.R.1 After receiving a report from the

investigator detailing instances where K.R.'s vehicle was found parked at

defendant's home, as well as collecting Facebook posts showing that defendant

and K.R. were romantically involved, plaintiff's attorney sent two letters to



1
    We refer to K.R. by her initials to protect her privacy.
                                                                          A-3279-18T3
                                           3
defendant informing him she was seeking to terminate her alimony obligation

based on evidence of cohabitation. Although defendant's attorney responded by

calling plaintiff's attorney, defendant did not reply in writing.

      In a written decision, the court denied both plaintiff's motion to terminate

alimony and her counsel fee request. The court rejected plaintiff's assertion that

defendant was cohabiting with K.R., finding plaintiff only provided evidence

that defendant was in a romantic relationship with K.R. Citing to Konzelman v.

Konzelman, 158 N.J. 185, 202 (1999), the court stated that "[c]ohabitation

involves an intimate relationship in which the couple has undertaken duties and

privileges that are commonly associated with marriage." Social media postings

of defendant and K.R. celebrating holidays and taking vacations together

"fail[ed] to show that the couple ha[d] undertaken duties and privileges that are

commonly associated with marriage." The court found that "plaintiff fail[ed] to

provide any other evidence showing cohabitation, such as, the couple living

together, intertwined finances, sharing living expenses and household chores."

      Plaintiff provided the court with a certification from her private

investigator detailing the number of times K.R.'s car was parked outside

defendant's home, which the court found to be "insufficient to present even a

question of fact concerning cohabitation." The court concluded that defendant


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                                         4
and K.R. "appear[ed] to maintain separate homes, no evidence of intertwined

finances [was] adduced, nor [was] there any evidence of the couple holding

themselves out in a relationship tantamount to marriage." It characterized the

relationship as a "committed dating relationship" with overnights at each other's

residences at times, which did not "rise to the level of cohabitation."

        The court focused its analysis of the fee issue on plaintiff's argument that

defendant violated the terms of the Agreement. The court acknowledged that

plaintiff attempted to resolve the issues before filing a motion, but ultimately

concluded that because plaintiff failed to provide evidence of cohabitation, "no

genuine issue to mediate" existed, and plaintiff was therefore not owed counsel

fees.

                              II. Standard of Review.

        A trial judge has "broad discretion" in reviewing an application to modify

alimony. Storey v. Storey, 373 N.J. Super. 464, 470 (App. Div. 2004) (citing

N.J.S.A. 2A:34-23). The decision of a family court to modify alimony is

reviewed under an abuse of discretion standard. Larbig v. Larbig, 384 N.J.

Super. 17, 23 (App. Div. 2006). "Whether an alimony obligation should be

modified based upon a claim of changed circumstances rests within the Family




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                                          5
Part judge's sound discretion." Id. at 21 (citing Innes v. Innes, 117 N.J. 496, 504

(1990)).

      Cohabitation    by   a   dependent    ex-spouse    constitutes   a    changed

circumstance that could justify a modification of the supporting ex-spouse's

alimony obligation. Gayet v. Gayet, 92 N.J. 149, 154–55 (1983). In Landau v.

Landau, 461 N.J. Super. 107 (App. Div. 2019), we recently held that "the

changed circumstances standard of Lepis v. Lepis, 83 N.J. 139, 157 (1980),

continues to apply to a motion to suspend or terminate alimony based on

cohabitation following the 2014 amendments to the alimony statute, N.J.S.A.

2A:34-23(n)." Landau, 461 N.J. Super. at 108. Those amendments defined

cohabitation as "involv[ing] 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."         N.J.S.A. 2A:34-23(n).         Under the

statute, "[a] court may not find an absence of cohabitation solely on grounds that

the couple does not live together on a full-time basis." Ibid.

      Instead, courts "shall consider" the following factors "[w]hen assessing

whether cohabitation is occurring[:]"

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

                                                                             A-3279-18T3
                                        6
            (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 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
            . . . ; and

            (7) All other relevant evidence.

            [Ibid.]

      After carefully reviewing the amendments, "we [saw] no indication the

Legislature evinced any intention to alter the Lepis changed circumstances

paradigm when it defined cohabitation and enumerated the factors a court is to

consider in determining 'whether cohabitation is occurring' . . . ." Landau, 461

N.J. Super. at 116 (quoting N.J.S.A. 2A:34-23(n)). We determined the party

seeking modification still bears the burden of establishing "[a] prima facie

showing of changed circumstances . . . before a court will order discovery of an

ex-spouse's financial status." Id. at 118 (alteration in original) (quoting Lepis,

83 N.J. at 157).


                                                                         A-3279-18T3
                                        7
      In Gayet, our Supreme Court held that cohabitation of the dependent

former spouse constitutes a change of circumstances justifying the reduction or

termination of alimony only if the economic benefit inuring to either cohabitor

is "sufficiently material to justify relief." Konzelman, 158 N.J. at 196 (citing

Gayet, 92 N.J. at 154–55). "Under this economic needs test, the reduction in

alimony is granted in proportion to the contribution of the cohabitor to the

dependent spouse's needs." Ibid. (citing Gayet, 92 N.J. at 154–55).

      An agreement to terminate alimony based upon a dependent spouse's

cohabitation is "enforceable so long as the relationship constitutes cohabitation

and 'the cohabitation provision of the [PSA] was voluntary, knowing and

consensual.'" Ibid. (citing Konzelman, 158 N.J. at 203).

      In determining whether a dependent ex-spouse's relationship rises to the

level of cohabitation, our Supreme Court stated:

            Cohabitation involves an intimate relationship in which
            the couple has undertaken duties and privileges that are
            commonly associated with marriage.            These can
            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.

            [Konzelman, 158 N.J. at 202.]



                                                                         A-3279-18T3
                                        8
      Cohabitation      requires       "stability,      permanency   and    mutual

interdependence." Ibid. The court must determine whether the relationship

"bears the 'generic character of a family unit as a relatively permanent

household.'" Gayet, 92 N.J. at 155 (citing State v. Baker, 81 N.J. 99, 108

(1979)). "A mere romantic, casual or social relationship is not sufficient to

justify the enforcement of a settlement agreement provision terminatin g

alimony." Konzelman, 158 N.J. at 202.

      A party seeking modification of an alimony agreement based on

cohabitation must first establish a prima facie case of cohabitation before a court

orders discovery and a plenary hearing. Lepis, 83 N.J. at 157, 159. "[A] party

must clearly demonstrate the existence of a genuine issue as to a material fact

before a hearing is necessary." Id. at 159 (citing Shaw v. Shaw, 138 N.J. Super.

436, 440 (App. Div. 1976)).         "In determining whether a material fact is in

dispute, a court should rely on the supporting documents and affidavits of the

parties. Conclusory allegations would, of course, be disregarded." Ibid.

                                   III. Cohabitation.

      Plaintiff argues that the trial court failed to address the "substantial and

authenticated proofs provided in support of [her] motion." She maintains that

"even if there were a dispute as to the financial issues between [defendant and


                                                                           A-3279-18T3
                                           9
K.R.], that is a basis under which discovery must have been ordered." She

argues that because the parties have been divorced for thirteen years, she is

entitled to discovery and a plenary hearing to access the financial information

needed to prove her allegations that defendant is cohabiting with K.R.

      In support of her argument that defendant is cohabiting with K.R., plaintiff

offers evidence in the form of social media postings on Facebook indicating that

defendant and K.R. spent holidays, social events, and vacations together.

Plaintiff argues that the two of them spending time together in an intimate

relationship "reflects stability and permanency," and "bear[s] the general

character of a family unit."

      She offers the following social media posts: defendant traveled to Aruba

in November 2015; defendant updated his Facebook cover photo to a picture of

himself and K.R. on November 20, 2016; both K.R. and defendant changed their

Facebook statuses to "in a relationship" on November 22, 2016; K.R. changed

her profile picture to the two of them in November and December 2016 wishing

followers a "Happy Thanksgiving" and "Merry Christmas"; defendant shared a

picture of the two of them in front of a Christmas tree on November 30, 2016;

defendant updated his cover photo to a picture of K.R. on May 9, 2017;

defendant updated his profile picture to a picture of the two of them on May 30,


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                                      10
September 17, October 12 and October 14, 2017; defendant changed his profile

picture to one of the two of them in front of a Christmas tree on December 26,

2017; defendant changed his profile picture to a new picture of the two of them

on July 4 and July 31, 2018; defendant posted a beach picture of himself with

K.R. on October 22, 2018, and left comments indicating that the two were in

Aruba together; and defendant updated his profile once more on November 19,

2018, with a photograph of the two of them.

      Plaintiff also hired a private investigator to investigate defendant and K.R.

beginning on June 25, 2018. His report indicated that he "conducted activity

checks between July 12 and July 28, 2018, and suspended further activity checks

at the homes due to unusually low or lack [of] activity" at both defendant's and

K.R.'s homes.    The report indicated that K.R.'s car was parked outside of

defendant's home on the following dates: September 9, 2018; September 10,

2018; October 28 to October 31, 2018; November 1 to November 3, 2018;

November 5 to November 12, 2018; and November 17, 2018. The report did

not indicate that the investigator saw defendant or K.R. enter or exit each other's

home and did not provide evidence of any daily activities conducted together.

      Defendant provided a certification and case information statement

detailing his financial circumstances. In defendant's certification, he stated that


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                                       11
his "friendship" with K.R. "has not risen to the level of a marriage-like

relationship" and they have "no plans for marriage in the immediate future. " In

response to the social media postings offered by plaintiff, defendant stated that

"[w]hile we have taken [two] vacations together and shared some holidays over

the past [two] years, there has been no cohabitation." Defendant responded to

the private investigator's report by explaining that K.R.'s car was parked at his

house on occasions when he borrowed her car because his was inoperable.

Defendant also certified that: he and K.R. maintain separate households; they

have not been seeing each other for more than two years; they do not share any

property, bank accounts or expenses; they each paid for their own expenses

when they went on vacation together; they do not share in any joint living

expenses or responsibilities; they do not have any children together; and "neither

of [them] ha[ve] pledged to support the other." As the family court judge found,

the social media postings only show that defendant and K.R. are involved in an

intimate, dating relationship, not that they are cohabiting.

      Plaintiff's investigator reported seeing K.R.'s car parked outside of

defendant's home on less than twenty days between July and November 2018.

Unlike the investigator in Konzelman, plaintiff's investigator did not observe

activities such as defendant or K.R. exiting each other's homes in the morning,


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                                       12
entering the homes through a garage door or by key access, or engaging in any

household chores, such as yardwork or taking out the garbage. See Konzelman,

158 N.J. at 191–92. The trial court properly concluded that plaintiff's evidence

from the private investigator was "insufficient to present even a question of fact

concerning cohabitation."

      Plaintiff must first establish a prima facie case of cohabitation before a

court will order discovery and a plenary hearing. Lepis, 83 N.J. at 157. In order

to establish a prima facie case of cohabitation, plaintiff must provide evidence

that her dependent ex-spouse and an unrelated female have "undertaken duties

and privileges that are commonly associated with marriage," including "living

together, intertwined finances such as joint bank accounts, sharing livin g

expenses and household chores, and recognition of the relationship in the

couple's social and family circle." Konzelman, 158 N.J. at 202. Plaintiff relies

primarily on Facebook posts indicating that defendant and K.R. are in a dating

relationship. This is not enough to establish a prima facie case of cohabitation.

See Landau, 461 N.J. Super. at 118.

      Our Supreme Court recently stated:

            We do not today suggest that a romantic relationship
            between an alimony recipient and another,
            characterized by regular meetings, participation in
            mutually appreciated activities, and some overnight

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                                       13
             stays in the home of one or the other, rises to the level
             of cohabitation. We agree that this level of control over
             a former spouse would be unwarranted.

             [Quinn v. Quinn, 225 N.J. 34, 54 (2016).]

                                IV. Counsel fees.

      In denying her request for attorney fees, plaintiff argues that the "trial

court failed to make any specific findings of fact and conclusions of law" with

respect to the factors set forth under Rule 5:3-5(c) to determine the amount of

counsel fees. Those factors, however, are for the purpose of determining the

amount of counsel fees owed after a judge finds that the award of counsel fees

is appropriate.

      Plaintiff's claim for counsel fees is based on defendant's failure to disclose

his cohabitation and lack of response to plaintiff's attempt to settle the issues out

of court as required by the Agreement. The trial court reviewed this claim and

properly concluded that because plaintiff had inadequate proof of cohabitation,

"there was no genuine issue to mediate." Since defendant did not violate the

Agreement, the denial of plaintiff's request for an award of counsel fees and

costs was proper.

      Affirmed.




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                                        14
