                                NOT FOR PUBLICATION WITHOUT THE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-4345-17T1

NANCY M. MENNEN,

          Plaintiff-Respondent,

v.

JOHN H. MENNEN,

     Defendant-Appellant.
________________________

                    Argued February 28, 2019 – Decided April 2, 2019

                    Before Judges Simonelli and Firko.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Morris County,
                    Docket No. FM-14-0384-02.

                    Francis W. Donahue argued the cause for appellant
                    (Donahue, Hagan, Klein & Weisberg, LLC, attorneys;
                    Francis W. Donahue and Stephanie Frangos Hagan, of
                    counsel; Francis W. Donahue and Kaitlyn A. Lapi, on
                    the briefs).

                    Paul H. Townsend argued the cause for respondent
                    (Townsend, Tomaio & Newmark, LLC, attorneys; Paul
                    H. Townsend, of counsel and on the brief; Kevin W. Ku
                    and Daniel Pelic, on the brief).
PER CURIAM

      In this post-judgment matrimonial matter, defendant John H. Mennen

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

discovery from plaintiff Nancy M. Mennen relating to cohabitation issues that

could affect defendant's ongoing obligation to pay alimony, provide life

insurance, and pay other expenses. The motion judge denied defendant's motion

because he did not make a prima facie showing of cohabitation that would justify

expansive discovery and intrusion upon plaintiff's privacy.1 For the reasons that

follow, we affirm.

                                       I.

      The parties were divorced in January 2004 after a thirteen-year marriage.

Their children are emancipated. As part of their settlement agreement (SA)

incorporated into the judgment of divorce, defendant agreed to pay plaintiff

$5500 monthly in permanent alimony, plus annual increases based upon the

Consumer Price Index percentage. Defendant also: continued to pay plaintiff's

reasonable unreimbursed medical and dental expenses; provided her with health

insurance; maintained a life insurance policy to secure defendant's alimony



1
  Plaintiff filed a notice of cross-motion seeking to deny the motion and for an
award of counsel fees that was denied and is not part of this appeal.
                                                                         A-4345-17T1
                                       2
obligation; and paid for her lease acquisition fee. The parties agreed in the SA

that alimony would be terminated upon the happening of various events. In

particular, Article V, Paragraph 2 set forth the cohabitation language:

            Alimony shall cease and terminate at the earliest to
            occur of the Husband's death, the Wife's death, or the
            Wife's remarriage.      In the event of the Wife's
            cohabitation in the future with an unrelated person in a
            relationship tantamount to marriage after the sale of the
            property referred to in Article IV Paragraph 14 above,
            the Husband's obligation to pay alimony to the Wife
            may be revisited in accordance with the principles set
            forth in Gayet v. Gayet, 92 N.J. 149 (1983) and its
            progeny.

            [(Emphasis added).]2

      According to defendant, plaintiff has maintained a longstanding

relationship with her significant other, J.K., in which the two of them allegedly

interact and hold themselves out as the equivalent of spouses. In support of his

contentions, defendant provided in his motion papers an unsigned and

uncertified private investigator's report that stated J.K. was present eighty-eight

percent of the time during thirty-two of the investigator's visits spanning a four-



2
  Article IV Paragraph 20 of the SA prohibited cohabitation by either party with
an unrelated person in a relationship tantamount to marriage until the forme r
marital residence was sold. The marital residence was deemed additional child
support and was purchased by defendant where plaintiff could reside with the
parties' three daughters.
                                                                           A-4345-17T1
                                        3
and-a-half month period. The surveillance was conducted "early morning," "late

evening," and during the "middle of the night"; during the week, weekends, and

holidays; and on consecutive and alternating days. The investigator noted a

pattern of visits, whereby J.K. would leave plaintiff's residence between 6:15

a.m. and 6:30 a.m. The report states that J.K. has a garage door opener to

plaintiff's home, and that he does not own or rent property in New Jersey. He

uses a post office box at a United Parcel Service in Chester as his address and

on his driver's license, and he listed plaintiff's address as his residence on two

occasions. Defendant claims that J.K. is "enmeshed" in the everyday life of

plaintiff as supported by Facebook pictures, including his attendance at her

daughter's 3 wedding. The report stated:

              A search of current trade lines, recent inquiries and
              current creditors revealed that J.K. has used [the marital
              residence] on two occasions between 2008 and 2016.
              Additionally, the subject and J.K. share two credit
              cards, a Lowe's card, and a Capitol One card.

              According to database research, J.K. is associated with
              the subject's SSN, which may be a result of the credit
              lines that they share.




3
    This daughter was born of another relationship.
                                                                           A-4345-17T1
                                          4
      No financial independence was shown by plaintiff and no objective

evidence was submitted by her to refute the investigator's findings according to

defendant.

      In opposition to the motion, plaintiff certified that J.K. resides with his

brother in Belvidere, a forty-five minute drive from her home; they have been

dating since 2009; and they have been photographed together at social events.

In thirty-one pages of Facebook photographs, J.K. is only depicted in five of

them, spanning a seven-year period, and there are no photographs of plaintiff on

his Facebook page. J.K. lost his home in Chester to a short sale in 2015, sold

his Andes, New York home, and filed for bankruptcy in January 2014. He has

a garage door opener but no keys for plaintiff's residence. Plaintiff certified that

J.K. stayed with her while performing contracting work at a Morris Township

residence "to save nearly half the drive" to his brother's home in Belvidere. J.K.

used plaintiff's vehicle once during the surveillance period. She denied having

a cohabitation arrangement with him.

      In his bankruptcy petition, J.K. did not list any co-debtors on Schedule F,

which requires disclosure of all unsecured creditors having non-priority claims,

such as credit card holders. His Lowe's and Capitol One credit cards were listed

and did not name plaintiff as a co-debtor, and she was not listed on Schedule H


                                                                            A-4345-17T1
                                         5
of his bankruptcy petition, which mandates disclosure, not only of co-debtors,

but co-signors and guarantors as well. No evidence was provided to support the

investigator's conclusion that J.K. listed the marital residence as his address on

"official documents."

        With respect to an all-terrain vehicle accident involving one of the parties'

daughters, A.M.,4 in July 2009 at J.K.'s formerly owned property in Andes,

plaintiff certified that she never had an equitable or legal interest in that

property. She and J.K. were named as co-defendants in a personal injury action

filed on behalf of A.M., who was a minor at the time of the accident. A

settlement obtained in October 2016 in A.M.'s favor without an admission of

liability, and was paid by J.K.'s insurance company.

        As to the four trash pulls from her residence, plaintiff argues that "none

of the pulls yielded any items addressed to or seemingly belonging to J.K.," and

that "[t]he majority of the trash collected consisted of diapers, a significant

amount of takeout food, credit card statements belonging to the [plaintiff's]

daughter and feminine hygiene products." Three receipts uncovered were debit

card purchases using plaintiff's Lakeland bank account at a Target store and a

Marshalls/HomeGoods store for purchases of "window accents, baby food and


4
    We use initials to protect the child's privacy.
                                                                             A-4345-17T1
                                           6
other baby goods and cosmetics." The private investigator's report was "stale,"

being eight months old by the time the motion was filed according to plaintiff,

and the so-called "findings" are "exaggerated" and unsupported by any

documentation.

      Following oral argument, the Family Part judge denied defendant's motion

to compel discovery and suspend alimony payments. The judge concluded that

defendant failed to meet his burden to show a prima facie case of cohabitation,

including any proof of cohabitation. Defendant and his investigator "were

leaping to some conclusions without proof," and the findings were "limited" and

"overreaching," in the judge's view. No certifications from the parties' adult

children were submitted in support of the motion, as the judge noted. The

surveillance events took place in the "late evening and/or early morning hours ,"

and J.K.'s vehicle was only observed on thirty-two out of thirty-eight occasions,

which was considered by the judge, and a significant number of overnights "for

the very limited period" specified in the report.

      Notably, only thirty-eight surveillance events took place during evening

hours. "It simply wasn't enough" for a prima facie showing of cohabitation even

though the judge found J.K. stayed over plaintiff's home periodically. The judge

stated:


                                                                         A-4345-17T1
                                        7
             So I don’t find that the [defendant] leapt over the bar
             necessary to get discovery. I am in all of these
             cohabitation [matters] mindful that it's hard to prove
             cohabitation from the outside. It's very difficult. And
             I do think that's the reason that I look at whatever the
             proffered evidence by the [defendant] is in a light
             favorable to him or her. But I just find here that hasn't
             been met given the very limited findings, including the
             observations of J.K. at the [plaintiff's] residence for a
             short period of time.

       Defendant wanted his version of the facts "to be true" according to the

judge, "but wanting facts to be true does not make them facts." "Trash pulls"

from her residence yielded nothing relative to cohabitation, only credit card

statements and store receipts pertaining to the parties' daughters. The judge also

found defendant submitted "proof [that] was to the contrary" of prima facie

cohabitation. The judge also found the SA predated the alimony reform statute

that was passed in September 2014 5 but the "statutory listing of the factors and

description of cohabitation really didn't change the law on the substance of it . .

. . the statute really changes the remedy." This appeal followed.

                                        II.

       Defendant argues in Point I of his brief that evidence of plaintiff and J.K.

having a long-term relationship and residing together is prima facie evidence of



5
    N.J.S.A. 2A:34-23.
                                                                           A-4345-17T1
                                         8
changed circumstances, and that there is substantial credible evidence to justify

discovery. We disagree.

      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 (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 v. Gayet, 92 N.J. 149, 154-55 (1983).

Cohabitation has been defined as "an intimate relationship in which the couple

has undertaken duties and privileges that are commonly associated with

marriage." Konzelman v. Konzelman, 158 N.J. 185, 202 (1999). 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


                                                                         A-4345-17T1
                                       9
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) the third party resides

in the dependent spouse's home without contributing anything toward the

household expenses." Id. at 153 (citing Garlinger v. Garlinger, 137 N.J. Super.

56, 64 (App. Div. 1975)).

      "[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 v. Ozolins, 308 N.J.

Super. 243, 245 (App. Div. 1998)). 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


                                                                           A-4345-17T1
                                       10
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

            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).]

      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. Defendant relies on

Konzelman arguing that he only needs to show plaintiff and her paramour are

living together and he provides economic support.

      As the Supreme Court explained in Konzelman, cohabitation is typified

by the existence of a marriage-like relationship "shown to have stability,

permanency[,] and mutual interdependence." Id. at 202; see also Reese, 430

N.J. Super. at 570 (second alteration in original) (similarly noting that

"[c]ohabitation involves an 'intimate[,]' 'close and enduring' relationship,

                                                                          A-4345-17T1
                                       11
requiring 'more than a common residence' or mere sexual liaison") (quoting

Konzelman, 158 N.J. at 202). Although "living together, intertwined finances

such as joint bank accounts, shared living expenses and household chores, and

recognition of the relationship in the couple's social and family circle" may

support a finding of cohabitation, such illustrative examples must not be

considered in a vacuum. Konzelman, 158 N.J. at 202. "A mere romantic,

casual[,] or social relationship is not sufficient to justify the enforcement of a

settlement agreement provision terminating alimony[,]" nor is simply sharing "a

common residence, although that is an important factor." Ibid. "Cohabitation

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

privileges that are commonly associated with marriage." Ibid.

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

may then engage in mutual discovery. Gayet, 92 N.J. at 154-55. The 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." Ozolins, 308 N.J.

Super. at 248 (App. Div. 1988); see also Reese, 430 N.J. Super. at 581

(reaffirming this court's holding in Ozolins).




                                                                          A-4345-17T1
                                       12
      In 2014, the Legislature addressed cohabitation in subsection (n) of

N.J.S.A. 2A:34-23. That provision 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
            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.


                                                                         A-4345-17T1
                                       13
            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.

      In denying the motions, the judge also noted:

            I don't find anything unreasonable in the concerns that
            [defendant] has given the long-term relationship. And
            while he did not as I say get over the bar of proving a
            prima facie case, I don't find that filing this motion was
            unreasonable. I think he may have confused as I said
            motive. You know J.K. did have serious financial
            difficulties. And it would be logical for someone to
            assume that he was relying on support from the
            [plaintiff]. But again there's just an absence of proof of
            that.

      We are mindful that the materials submitted to the motion judge –

including the Facebook posting of J.K. – reflect that he and plaintiff take part

with one another in a variety of social and family activities, and attended her

daughter's wedding, family gatherings, and other such events together. Even so,

the present record lacks any evidence that the couple's finances are intertwined

or that plaintiff is financially dependent upon her significant other. Here, we

agree with the judge that defendant failed to establish a prima facie case of

cohabitation, and we find no abuse of discretion.




                                                                         A-4345-17T1
                                       14
                                       III.

      In Point II of his brief, defendant argues that he presented substantial,

credible evidence of a prima facie case of cohabitation to justify discovery. We

disagree.

      There is no proof of joint bank accounts or other joint asset holdings; no

proof that the couple share living expenses; and no proof of any enforceable

promise of support. There is no proof of shared household chores. Regardless

of whether the criteria expressed in prior case law or codified in subsection (n)

are applied, the record amassed by the defendant was reasonably deemed

insufficient by the motion judge to rise to the level of a prima facie case that

would justify the additional discovery he sought.

      We reject defendant's argument that if the motion judge had considered

the investigator's report, the balance would have tipped in favor of a prima facie

showing of cohabitation. The critical factor is "the extent of actual economic

dependency[.]" Rose v. Csapo, 359 N.J. Super. 53, 59 (Ch. Div. 2002) (quoting

Gayet, 92 N.J. at 154). The economic benefit to either cohabitator must be

sufficiently material to justify relief. Gayet, 92 N.J. at 153-54. Even if all of

the materials proffered by defendant are considered, we remain convinced of the

soundness of the motion judge's finding that defendant has not presented a prima


                                                                          A-4345-17T1
                                       15
facie case. While we acknowledge that economic interdependence is difficult

to prove, defendant presented no proof whatsoever to support his claim of

cohabitation.   Therefore, the motion judge did not abuse his discretion in

declining defendant's demand for discovery.

      Notwithstanding our disposition, nothing in this opinion forecloses

defendant from filing a future motion to establish a prima facie case with

appropriate proofs on the issue of cohabitation as defined in the parties' SA.

Pending such a future motion, defendant's alimony and other obligations shall

continue as agreed upon in the parties' SA.

      Affirmed.




                                                                       A-4345-17T1
                                      16
