                                NOT FOR PUBLICATION WITHOUT THE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-5865-17T4

DANIEL J. DALTON,

          Plaintiff-Appellant,

v.

DIANE DALTON,

     Defendant-Respondent.
______________________________

                    Submitted June 6, 2019 – Decided July 19, 2019

                    Before Judges Simonelli and Firko.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Mercer County,
                    Docket No. FM-11-0485-08.

                    Stark & Stark, PC, attorneys for appellant (Corrine
                    Evanochko Cooke, of counsel and on the briefs; Taylor
                    Wellington Brownell, on the briefs).

                    Ulrichsen Rosen & Freed, LLC, attorneys for
                    respondent (Wendy Michelle Rosen, of counsel and on
                    the brief; Rebecca Day, on the brief).

PER CURIAM
      In this post-judgment matrimonial matter, plaintiff Daniel J. Dalton

appeals from a Family Part order denying his request to compel additional

discovery from defendant Diane Dalton relating to cohabitation issues that could

affect plaintiff's ongoing obligation to pay alimony and awarding counsel fees

of $8000 to defendant relative to her motion to enforce litigant's rights. The

trial judge denied plaintiff's cross-motion because he did not make a prima facie

showing of cohabitation that would justify expansive discovery and intrusion

upon defendant's privacy. For the reasons that follow, we affirm.

                                       I.

      The parties were divorced in December 2008 after a twenty-four year

marriage. As part of their marital settlement agreement (MSA) incorporated

into their final judgment of divorce, plaintiff agreed to pay defendant $6200

monthly in permanent alimony, plus annual cost of living adjustment (COLA)

increases based upon the Consumer Price Index percentage, less $653 per month

after meeting his social security tax contribution each year. At the time of the

divorce, plaintiff was earning $240,000 annually and bonuses in the $100,000

range. He agreed to pay defendant thirty-percent of his gross annual bonus, not

to exceed $31,000 per year, as additional alimony, conditioned on plaintiff

maintaining employment with his then-employer, and so long as "its


                                                                         A-5865-17T4
                                       2
compensation scheme remains materially the same as the date of [their]

[a]greement[.]"

      The parties agreed in the MSA that alimony would terminate upon the

happening of certain events. Paragraph ten set forth the cohabitation language:

            The aforesaid alimony payments may be modified or
            terminated upon application to the [c]ourt by [plaintiff]
            in the event of [defendant's] cohabitation with an
            unrelated person pursuant to Gayet v. Gayet, 92 N.J.
            149 (1983) and Ozolins v. Ozolins, 308 N.J. Super. 273
            (App. Div. 1998). [Defendant] shall have a duty to
            notify [plaintiff] in the event she is cohabiting with an
            unrelated person.

      On May 1, 2018, defendant moved to adjudicate plaintiff in violation of

litigant's rights because he failed to add COLA increases to her alimony

payments for several years; accrued arrearages of $13,632 in child support for

the parties' three children, $9,674.64 in tuition and college related costs, and

$3,357.42 for the children's unreimbursed healthcare expenses; and owed

defendant his fifty-percent share of the cost for repairs to prepare the former

marital home for sale. In opposition, plaintiff argued defendant's motion was

barred by the doctrine of laches because she [sat] "on her rights for [an] extended

length of time and, all of a sudden, asks [the] [c]ourt to award her a significant

pay day."



                                                                           A-5865-17T4
                                        3
        Plaintiff cross-moved to modify or terminate alimony based upon

defendant's alleged cohabitation with her paramour, S.G. 1 The judge granted

defendant's motion and denied plaintiff's cross-motion.

        According to plaintiff, defendant has maintained a longstanding

relationship with S.G., in which the two of them allegedly interact and hold

themselves out as the equivalent of spouses. In support of his contentions,

plaintiff included in his moving papers S.G.'s mother's obituary from February

2010 naming defendant as S.G.'s girlfriend, photographs of the couple travelling

to Hawaii, Vermont, and New York, social media postings, and evidence of them

spending holidays together.         Plaintiff certified that defendant has been

cohabiting with S.G. for ten years.

        As further support of his contentions, plaintiff submitted t wo private

investigator's reports dated March 2, 2016 and June 5, 2018. The 2016 report

documented defendant spending four overnights at S.G.'s residence over an

eight-day period. In opposition, defendant claimed only two of these days

included overnight stays. The 2018 report revealed defendant and S.G. reside

within 3.3 miles of each other, and included surveillance of the couple at the

Wildflowers Inn on June 2, 2018. They were "observed parking next to a closed


1
    We use initials to protect the confidentiality of the third party.
                                                                         A-5865-17T4
                                           4
dry cleaners and walking on foot into the restaurant portion of the

establishment[,]" and several hours later, they drove to S.G.'s residence at 11:01

p.m. in defendant's vehicle which "pulled from the roadway and [drove] down

the curved driveway and from sight." Surveillance continued on June 3, 2018,

"nearly two hours after [defendant] and [S.G.] returned to the residence. At this

time with no observation of [defendant] leaving the residence, the surveillance

was ended for the evening."

      Defendant denied spending that night at S.G.'s house, and submitted

surveillance footage from S.G.'s neighbor's house which showed her leaving

S.G.'s house approximately five minutes after pulling into his driveway on June

2, 2018. Further, defendant provided a phone record confirming she called S.G.

at 11:22 p.m. that evening to inform him she arrived home safely.

      Defendant certified that she and S.G. "go out as a couple and socialize

together[,]" but denied spending a significant amount of time with him. While

S.G. was convalescing following chemotherapy, defendant admitted she assisted

him "just as [she] would have assisted anyone else with whom [she] had a

relationship[,]" and refuted plaintiff's assertion that she "nursed and cared for

[S.G.] throughout his entire chemotherapy and radiation treatment on a daily

basis." Defendant also certified she spends some holidays with S.G., but not all


                                                                          A-5865-17T4
                                        5
of them because they spend most of them with their respective children. Plaintiff

submitted only one photograph from Thanksgiving 2017 illustrating defendant

and S.G. spent the holiday together, and defendant rebutted his argument by

stating most holidays were not spent together, including Christmas 2017.

Defendant certified the couple does "not function as or resemble a family unit[,]"

and there was only one occasion in the past ten years when their children were

all together.

      Defendant certified the couple has "no economic interconnectedness.

[She does] not receive any economic benefit from [her] dating relationship with

[S.G.] beyond the benefit that is likely associated with most dating

relationships[,]" like shared dinners and limited travel.          Defendant offered

proofs showing she and S.G. have separate mailing addresses, and that each pays

their own bills and expenses. Her representation was supported by copies of

utility bills, her bill-pay bank summary, cancelled checks, and current and

former leases, none of which include S.G.'s name. The judge found:

                [T]hat plaintiff has failed to establish a prima facie case
                of cohabitation. Plaintiff offers no proof that defendant
                and the alleged cohabitator have overnight[] stays with
                any frequency at all. There are no material facts in
                dispute that would warrant a plenary hearing. . . .
                [D]efendant makes no admissions regarding overnights
                and plaintiff does not establish any frequency of
                duration of overnights.

                                                                              A-5865-17T4
                                            6
      The judge deemed the 2016 surveillance report outdated and gave it little

weight. No financial independence was shown by plaintiff, and the judge found

he failed to submit "any proof of comingling of finances between defendant and

the alleged cohabitator." The judge further held that social media postings, some

vacations, some holidays, holding themselves out as a couple, and defendant

being mentioned in S.G.'s mother's obituary "fall short of establishing a pr ima

facie showing that defendant is in a cohabiting relationship tantamount to

marriage." "[P]laintiff provides no proofs that defendant and the third party

named in plaintiff's [n]otice of [m]otion spend any meaningful amount of

overnights together."

      On appeal, plaintiff argues that the judge abused his discretion by failing

to enforce the terms of the MSA; find plaintiff established a prima facie case of

cohabitation; permit discovery or conduct a plenary hearing; and abused his

discretion by awarding defendant counsel fees.

                                       II.

      Plaintiff argues that the judge erred by evaluating the cohabitation issue

under Konzelman v. Konzelman, 158 N.J. 185 (1999), instead of the standards

set forth in Gayet, and Ozolins, as contemplated in their MSA. We disagree.




                                                                         A-5865-17T4
                                       7
      We first consider the well-settled principles that guide our review.

Alimony "may be revised and altered by the court from time to time as

circumstances may require." N.J.S.A. 2A:34-23. To make such a modification,

a showing of "changed circumstances" is required. Lepis v. Lepis, 83 N.J. 139,

146 (1980); see Weishaus v. Weishaus, 180 N.J. 131, 140-41 (2004).             To

determine whether there is a prima facie showing of changed circumstances, the

court must consider the terms of the order at issue and compare the facts as they

existed when the order was entered with the facts at the time of the motion. See

Faucett v. Vasquez, 411 N.J. Super. 108, 129 (App. Div. 2009).

      A prima facie showing of cohabitation constitutes sufficient changed

circumstances under Lepis. Gayet, 92 N.J. at 154-55. Cohabitation has been

defined as "an intimate relationship in which the couple has undertaken duties

and privileges that are commonly associated with marriage." Konzelman, 158

N.J. at 202. Where a supporting spouse seeks to decrease or terminate alimony

because of the dependent spouse's cohabitation, "the test for modification of

alimony is whether the relationship has reduced the financial needs of the

dependent former spouse." Gayet, 92 N.J. at 150. Alimony may be modified

"when (1) the third party contributes to the dependent spouse's support, or (2)




                                                                         A-5865-17T4
                                       8
the third party resides in the dependent spouse's home without contributing

anything toward the household expenses." Id. at 153.

      "[A] showing of cohabitation creates a rebuttable presumption of changed

circumstances shifting the burden to the dependent spouse to show that there is

no actual economic benefit to the spouse or cohabitant." Reese v. Weis, 430

N.J. Super. 552, 570 (App. Div. 2013) (quoting Ozolins, 308 N.J. Super. at 245).

The court must focus on the cohabitant's economic relationship to discern

"whether one . . . 'subsidizes the other.'" Id. at 571 (quoting Boardman v.

Boardman, 314 N.J. Super. 340, 347 (App. Div. 1998)). Whether this economic

benefit exists requires a fact-intensive inquiry by the trial judge. Id. at 576.

      Our scope of review of the trial court's decision is limited. "Whether an

alimony obligation should be modified based upon a claim of changed

circumstances rests within a Family Part judge's sound discretion." Larbig v.

Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). Each individual motion for

modification is particularized to the facts of that case, and "the appellate court

must give due recognition to the wide discretion which our law rightly affords

to the trial judges who deal with these matters." Ibid. (quoting Martindell v.

Martindell, 21 N.J. 341, 355 (1956)). We will not disturb the trial court's

decision on alimony unless we


                                                                            A-5865-17T4
                                         9
            conclude that the trial court clearly abused its
            discretion, failed to consider all of the controlling legal
            principles, or must otherwise be well satisfied that the
            findings were mistaken or that the determination could
            not reasonably have been reached on sufficient credible
            evidence present in the record after considering the
            proofs as a whole.

            [Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div.
            1996).]

      Plaintiff claims the judge rewrote the parties' MSA by applying the

incorrect standard and failed to follow our Supreme Court's mandate in Quinn

v. Quinn, 225 N.J. 34, 45 (2016), which requires a court to "discern and

implement the intentions of the parties." In support of his position, plaintiff

relies on the judge's reference to Konzelman:

            As [our] Supreme Court explained in Konzelman . . .
            cohabitation is typified by the existence of a marriage-
            like relationship "shown to have stability, permanency,
            and mutual interdependence." [158 N.J. at 202.] . . .
            Although "living together, intertwined finances such as
            joint bank accounts, shared living expenses and
            household chores" may support a finding of
            cohabitation, such illustrative examples must not be
            considered in a vacuum. [Ibid.] "A mere romantic,
            casual or social relationship is not sufficient," nor is
            simply sharing a "common residence, although that is
            an important factor." Ibid.




                                                                          A-5865-17T4
                                       10
Plaintiff notes Konzelman was decided in 2008, at the time the parties entered

into their MSA, but they specifically agreed to abide by the previous holdings

in Gayet and Ozolins.

      Not only does plaintiff contend the judge's application of Konzelman was

improper, he also claims he met his burden of establishing a prima facie case of

cohabitation pursuant to Gayet and Ozolins.      The Gayet court held that a

dependent spouse's cohabitation with another constitutes a change in

circumstances, warranting a modification or termination of the supporting

spouse's alimony obligation. 92 N.J. at 154-55. But Gayet also established "that

cohabitation of the dependent spouse without more was not a changed

circumstance that could justify the reduction or termination of alimony by the

supporting spouse."     Konzelman, 158 N.J. at 196.     Accordingly, plaintiff's

argument lacks merit.

      In his certification, plaintiff argues the 2014 amendment to the alimony

statute, N.J.S.A. 2A:34-23, codified the issue of cohabitation. The statute sets

forth the following considerations that bear upon cohabitation issues:

            n. 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


                                                                         A-5865-17T4
                                      11
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 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; and

(7)   All other relevant evidence.

In evaluating whether cohabitation is occurring and
whether alimony should be suspended or terminated,
the court shall also consider the length of the
relationship. A court may not find an absence of
cohabitation solely on grounds that the couple does not
live together on a full-time basis.

[(Emphasis added).]



                                                               A-5865-17T4
                              12
      Prior to the Legislature's adoption of the 2014 amendments, the legal

criteria for cohabitation were not specified by statute but instead embodied in

case law. See, e.g., Konzelman, 158 N.J. at 195-203. Plaintiff argues in the

alternative that N.J.S.A. 2A:34-23(n) can be applied here, as opposed to the

Gayet and Ozolins holdings, because in any event, defendant and S.G. satisfy

all the factors except for residing together on a full-time basis.

      Plaintiff further argues that because he established a prima facie case of

cohabitation, the burden shifted to defendant to refute the presumption of an

economic benefit as a result of cohabitation. Ozolins, 308 N.J. Super. at 248-

49. "[A] dependent spouse must prove he or she remains dependent on the

former spouse's support."     Reese, 430 N.J. Super. at 571. In Ozolins, we

remanded the matter because the trial judge improvidently terminated the former

wife's alimony payments based upon her failure to rebut the former husband's

prima facie showing of cohabitation, and because the former husband was

diagnosed with prostate cancer, thereby diminishing his earning capacity. 308

N.J. Super. at 247. We held the former wife's cohabitation did "not justify a

total termination of alimony[,]" because we reasoned that the economic benefit

she derived from cohabitation was less than her monthly alimony payments and

her former husband did not prove his cancer diagnosis reduced his earning


                                                                        A-5865-17T4
                                       13
capacity – in fact he testified he continued to work despite his prostate cancer –

as he maintained the same level of income for the prior six years. Id. at 249.

We remanded the matter for a modification of the alimony amount and we did

not terminate alimony.

      Here, the judge thoughtfully cited to Gayet and Ozolins throughout his

opinion. Citing to Gayet, 92 N.J. at 154-55, the judge recognized "an alimony

payor who alleges cohabitation must first present a prima facie case that his or

her former spouse is in such a cohabiting relationship tantamount to marriage[,]"

and noted "[i]f such a prima facie showing is made, the disputing ex-spouses

may then engage in mutual discovery." The judge also quoted Gayet's holding

that the trial court must evaluate whether the relationship "bears the generic

character of a family unit as a relatively permanent household." 92 N.J. at 149

(quoting State v. Baker, 81 N.J. 99, 108 (1979)). Further, the judge noted that

"[t]he payor's prima facie showing of cohabitation creates a rebuttable

presumption of changed circumstances, which the dependent ex-spouse may

then attempt to rebut 'with proof that the need for [spousal] support remains the

same[,]'" quoting Ozolins, 308 N.J. Super. at 248-49. (first alteration in

original). Therefore, we reject plaintiff's claim that the judge re-wrote the MSA.




                                                                          A-5865-17T4
                                       14
      Plaintiff contends he met this burden to prove S.G.'s relationship with

defendant reduces her financial need.      In addition to his proofs, plaintiff

contends the 2018 surveillance report includes a picture from S.G.'s Facebook

profile, which shows the couple on vacation, and indicates the photo was posted

on October 5, 2012, "seemingly from Hawaii," during defendant's birthday

period. Defendant commented "[t]he best birthday gift ever . . . Thank you to

my sweet man!" on the photo, which received four comments from defendant's

friends, as well as twenty-five "thumbs up" by others. The report concludes

"[t]his clearly indicates an acknowledgement[] by friends and family of the post

and content."

      Plaintiff also certified S.G. owns vacation homes in Vermont and in

Florida, which defendant frequently visits, and the parties' children have also

visited. According to plaintiff, this "establishes defendant and her paramour's

long-lasting relationship, as well as her reduced financial needs as a result of

her paramour's substantial entanglement in her everyday life."        The 2016

surveillance report indicated defendant spends fifty-percent of overnights with

S.G., but surveillance only spanned eight days.

      Defendant counters that plaintiff is attempting to enforce terms of the

MSA that do not exist. She claims, "[a]lthough [p]laintiff does not clearly


                                                                        A-5865-17T4
                                      15
articulate it, the essence of his argument is that . . . the MSA requires the trial

court to skip the prima facie showing of cohabitation and move immediately to

the economic needs analysis." Defendant reiterates that before applying the

economic needs test, plaintiff must make a prima facie showing of her

cohabitation, the judge was required to look beyond the holdings in Gayet and

Ozolins because those cases determined whether it was justified for the

supporting spouse to continue payments after cohabitation was established, by

admission of the dependent spouses, and the judge aptly referred to Quinn and

J.B. v. W.B., 215 N.J. 305, 326 (2013), in finding the strong public policy

favoring settlement agreements in matrimonial matters, as well as other cases

determine whether a plenary hearing was required.

      Ultimately, the judge determined plaintiff's proofs were insufficient to

establish a prima facie case of cohabitation. The judge held the prima facie

showing of cohabitation was established in Gayet by "a dependent spouse [who]

admittedly cohabited four nights a week for a three-and-one-half month period.

92 N.J. at 150. Here, defendant made no admissions regarding overnights and

plaintiff did not establish any frequency or duration of overnights." In fact,

defendant's July 12, 2018 certification states:

            I live only with my son. [S.G.] lives on his own, in his
            own house. We do not have any intertwined finances

                                                                           A-5865-17T4
                                       16
            such as joint bank accounts; we do not share any living
            expenses and we do not share household chores. We do
            not and have not lived as [h]usband and [w]ife.

      Giving plaintiff "every reasonable inference[,]" the judge found he only

established one overnight stay in 2018 and four overnight stays in 2016, whereas

defendant provided proofs of separate finances and living arrangements from

S.G. The judge reasoned:

            [Plaintiff's] private investigator reported one overnight
            stay in 2018. Taking that substantially refuted finding
            as true – which eliminates any factual disputes between
            the parties – and giving him every reasonable inference
            from that fact, plaintiff's evidence falls far short of
            establishing that defendant and the alleged cohabitator
            spend any significant number of overnights together.
            One night does not cohabitation make.

      Defendant contends that even if plaintiff satisfied his burden and made a

prima facie showing of cohabitation, he failed to provide proofs that a

modification or termination of alimony is warranted under Gayet. We agree.

The judge found:

            The present record lacks any evidence that the couple's
            finances are intertwined or that defendant is financially
            dependent upon the significant other. There is no proof
            of joint bank accounts or other joint asset holdings of
            liabilities; no proof that the couple shares living
            expenses; and no proof of any enforceable promise of
            support. There is no proof of shared household chores.



                                                                        A-5865-17T4
                                      17
      In both Gayet and Ozolins, the supported spouses admitted to

cohabitation. See Gayet, 92 N.J. at 150 (where the parties stipulated to the wife's

cohabitation with a significant other for three and a half months); see also

Ozolins, 308 N.J. Super. at 246 (where the dependent spouse conceded to

cohabitation with a male friend for economic reasons). Accordingly, only after

a prima facie showing of cohabitation was made was the trial court able to

evaluate the economic impact of cohabitation. Ozolins, 308 N.J. Super. at 247.

For this reason, plaintiff's argument that the judge improperly rewrote the

parties' MSA and applied the incorrect standard is devoid of merit.

                                       III.

      Plaintiff next argues that despite the judge's alleged failure to apply the

Gayet and Ozolins standards, plaintiff nevertheless established cohabitation

pursuant to Konzelman. He claims Konzelman set forth a three-prong test to

determine whether a dependent spouse is cohabiting with another. The three

factors are: (1) common residence; (2) an intimate relationship wherein the

parties undertake duties and privileges generally associated with marriage; and

(3) a serious and lasting relationship.       Plaintiff argues the judge failed to

"delineate or define the factors outlined in Konzelman[,]" and placed little

weight on the second and third factors and substantial weight on the first factor.


                                                                           A-5865-17T4
                                       18
     Konzelman differed from the economic needs test set forth in Gayet, and

found that an agreement between the parties to terminate alimony upon

cohabitation is valid "without regard to the economic consequences of that

relationship." 158 N.J. at 196. The Court reasoned that N.J.S.A. 2A:34-25

provides for termination of alimony upon remarriage,

           without regard to the financial condition of the
           dependent spouse, evincing an understanding on the
           part of the Legislature that the autonomous decision of
           the dependent former spouse to form new bonds
           creating mutual obligations of support must be
           recognized, and . . . therefore, supplant[s] the legal
           vestiges of the prior marriage.

           [Ibid.]

     When a "dependent spouse enters a relationship that has all the indicia of

a marriage[,]" a settlement agreement terminating alimony is enforceable. Id.

at 197. The Court held:

           [A] specific consensual agreement between the parties
           to terminate or reduce alimony based on a
           predetermined change of circumstances does not
           require an inquiry into the financial circumstances or
           economic status of the dependent spouse so long as the
           provision itself is fair. Thus, where the parties have
           agreed that cohabitation will constitute a material
           changed circumstance, and that agreement has been
           judged fair and equitable, the court should defer to the
           arrangements undertaken by the parties. In that
           situation where the dependent spouse has entered into a
           new marriage-like relationship, the court need not delve

                                                                       A-5865-17T4
                                     19
            into the economic needs of the dependent former
            spouse.

            [Ibid.]

These agreements must be consensual, fair and equitable. Id. at 198-201. "A

mere romantic, casual or social relationship is not sufficient to justify the

enforcement of a settlement agreement provision terminating alimony." Id. at

202. "While the use of consensual agreements to resolve marital controversies

is generally favored, we seriously question whether the language of the

provision at issue or the proofs proffered are sufficiently clear to justify

termination of alimony under the standard of enforceability recognized in

[Konzelman]." Palmieri v. Palmieri, 388 N.J. Super. 562, 564 (App. Div. 2006).

A supporting spouse must show "stability, permanency and mutual

interdependence" between the dependent spouse and their significant other.

Konzelman, 158 N.J. at 202. Although living together is an important factor,

cohabitation requires more than a common residence. Ibid.

            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.


                                                                         A-5865-17T4
                                       20
            [Ibid.]

      We are mindful that the materials submitted to the judge—including the

vacation S.G. paid for to Hawaii to celebrate defendant's birthday—reflect that

he and defendant take part with one another in a variety of social and family

activities. Even so, the present record lacks any evidence that the couple's

finances are intertwined or that defendant is financially dependent upon S.G.

We agree with the judge that plaintiff also failed to establish a prima facie case

under Konzelman, and find no abuse of discretion.

                                       IV.

      Plaintiff argues that the judge abused his discretion by failing to give

proper weight to the 2016 surveillance report by failing to properly consider

Rule 403. N.J.R.E. 403. We disagree.

      Rule 403 provides: "relevant evidence may be excluded if its probative

value is substantially outweighed by the risk of (a) undue prejudice, confusion

of issues, or misleading the jury or (b) undue delay, waste of time, or needless

presentation of cumulative evidence." The judge found the 2016 "surveillance

report—which documented four overnight stays—out of date; this is plaintiff's

application in 2018 and the [c]ourt puts little weight in a report from 2016."

Moreover, the judge found that even if he had given equal weight to both reports,


                                                                          A-5865-17T4
                                       21
at best they collectively established five overnights over a three year period, and

not fifty-percent of the time as alleged by plaintiff.

      We reject plaintiff's argument that if the judge had given more weight to

the 2016 report, the balance would have tipped in favor of a prima facie showing

of cohabitation.    The critical factor is "[t]he extent of actual economic

dependency[.]"     Gayet, 92 N.J. at 154.       The economic benefit to either

cohabitator must be sufficiently material to justify relief. Id. at 153-54. Our

review of a trial judge's evidentiary rulings are subject to an abuse of discretion

standard, Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-

84 (2010), and not a de novo standard as urged by plaintiff.

            [A]ppellate review of a trial court's application of the
            balancing test of [Rule] 403 . . . is subject to the abuse
            of discretion standard, which sustains the trial court's
            ruling "unless it can be shown that the trial court
            palpably abused its discretion, that is, that its finding
            was so wide [of] the mark that a manifest denial of
            justice resulted."

            [State v. Lykes, 192 N.J. 519, 534 (2007) (third
            alteration in original) (quoting Verdicchio v. Ricco,
            179 N.J. 1, 34 (2004)).]

      Even if all of the materials proffered by plaintiff are considered, we

remain convinced of the soundness of the judge's finding that plaintiff has not




                                                                           A-5865-17T4
                                        22
presented a prima facie case. Therefore, the judge did not abuse his discretion

under Rule 403 in respect of the 2016 surveillance report.

                                       V.

      Next, plaintiff argues that the judge abused his discretion by failing to

permit a period of discovery or conducting a plenary hearing to establish

economic interdependence between defendant and S.G.              We reject this

argument.

      If a prima facie showing of cohabitation is made, then the disputing ex-

spouses may engage in mutual discovery. Gayet, 92 N.J. at 154-55. Here, the

judge concluded "[defendant] and S.G. are in a relationship, but they are not

[cohabiting]. . . . They do not live together. They do not have intertwined

finances. They do not share living expenses. . . . They do not live as husband

and wife." Regardless of whether the criteria expressed in case law or codified

in N.J.S.A. 2A:34-3(n) are applied, the record amassed by plaintiff was

reasonably deemed insufficient by the judge to rise to the level of a prima facie

case that would justify the additional discovery he sought.

      We also reject plaintiff's argument that a plenary hearing was necessary.

In concluding a plenary hearing was unwarranted, the judge stated:

            It is customary for the factual disputes relating to the
            alleged cohabitation to be resolved at a plenary hearing,

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            at which the [c]ourt could evaluate the credibility of the
            competing witnesses. See, e.g., [Winegarden v.
            Winegarden, 316 N.J. Super. 52, 56 n.1 (App. Div.
            1998)].    Conducting such a plenary hearing in
            cohabitation disputes is consistent with the general
            principle in post-judgment matrimonial cases that
            "[d]isputes of material fact should not be resolved on
            the basis of [written] certifications." [Palmieri, 388
            N.J. Super. at 564]; see also Shaw v. Shaw, 138 N.J.
            Super. 436, 440 (App. Div. 1976).

            [(Third and Fourth alterations in original).]

The judge aptly noted, "[t]he need for a plenary hearing is not inexorable,

however, and the [c]ourt may dispense with a hearing if the parties present no

disputed issues of material fact and the matter is otherwise suited for disposition

on the papers." Ibid. Because plaintiff failed to establish a prima facie showing

of cohabitation, the judge correctly determined there were "no material facts in

dispute that would warrant a plenary hearing[,]" and we conclude there was no

abuse of discretion.

      Plaintiff failed to set forth his argument that the judge failed to articulate

his reasons for denying discovery and a plenary hearing pursuant to Rule 1:7-

4(a) in a proper point heading in violation of Rule 2:6-2(a)(6). Accordingly, we

decline to consider the argument. See Mid-Atl. Solar Energy Indus. Ass'n v.

Christie, 418 N.J. Super. 499, 508 (App. Div. 2011) (declining to consider a

"cursory discussion" that was "raised for the first time . . . at the end of [the

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                                       24
plaintiff]'s brief without a separate point heading"); Pressler & Verniero,

Current N.J. Court Rules, cmt. 2 on R. 2:6-2 (2019).

                                        VI.

       Lastly, the record belies plaintiff's argument that the judge gave particular

weight to factors three, seven, and nine of Rule 5:3-5(c),2 which permits an

award of fees in a Family Part action. The judge explicitly evaluated all of the

Rule 5:3-5(c) factors and determined that "defendant prevailed on her claims;

plaintiff did not[,]" emphasizing the entirety of defendant's motion sought

enforcement of plaintiff's obligations set forth in the MSA.

       Regarding factors one and two, the judge found plaintiff to be in "a

superior ability to pay his own counsel feels and those of defendant[.]" As to

the bad or good faith of the parties' claims, the judge found "[p]laintiff's asserted


2
    Pursuant to Rule 5:3-5(c) the court may consider:

              (1) the financial circumstances of the parties; (2) the
              ability of the parties to pay their own fees or to
              contribute to the fees of the other party; (3) the
              reasonableness and good faith of the positions
              advanced by the parties both during and prior to trial;
              (4) the extent of the fees incurred by both parties; (5)
              any fees previously awarded; (6) the amount of fees
              previously paid to counsel by each party; (7) the results
              obtained; (8) the degree to which fees were incurred to
              enforce existing orders or to compel discovery; and (9)
              any other factor bearing on the fairness of an award.
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                                        25
defense of laches to have been made in good faith, even if not successful. The

[c]ourt finds his position on cohabitation to be less so. Consistent with the

results obtained, the [c]ourt finds defendant's positions and claims to be

reasonable and advanced in good faith." Further, plaintiff incurred $6,762.50 in

counsel fees and defendant incurred $9914 in fees.

      Additionally, the judge found factor five to be irrelevant since this was

the parties' first post-judgment matter. Regarding factor eight, the judge found

"the entirety of defendant's [motion] sought to enforce rights and obligations s et

forth in the parties' agreement." And, the judge recounted "that the parties'

agreement contains a provision calling for reasonable counsel fees and costs in

the event that a party has to litigate enforcement issues." The judge noted, "the

Appellate Division has made clear, it is error to ignore an attorney's fee award

provision in a matrimonial settlement agreement[,]" citing to Strahan v. Strahan,

402 N.J. Super. 298, 317 (App. Div. 2008).

      The judge next considered N.J.S.A. 2A:34-23, which provides:

            The court may order one party to pay . . . [for the
            other's] legal services when the respective financial
            circumstances of the parties make the award reasonable
            and just. In considering an application, the court shall
            review the financial capacity of each party to conduct
            the litigation and the criteria for award of counsel fees
            that are then pertinent as set forth by court rule. . . . and
            shall consider the factors set forth in the court rule on

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                                        26
            counsel fees, the financial circumstances of the parties,
            and the good or bad faith of either party.

      The judge indicated he "assign[ed] particular weight to factors" one, two,

three, six, seven, eight and nine. He did not state he afforded any one factor

more weight than the others, and he detailed the concept of bad faith in his

opinion.   Plaintiff defaulted on six required payments totaling $70,865.75,

which was owed to defendant. Accordingly, the judge properly exercised his

discretion in awarding counsel fees to defendant.

      We conclude that the remaining arguments—to the extent we have not

addressed them—lack sufficient merit to warrant any further discussion in a

written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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