Temple v. Temple, ___ N.J. Super. ___ (App. Div. 2021). When plaintiff Jeffrey Temple and defendant Cynthia Temple divorced, they entered into a marital settlement agreement, incorporated into their 2004 dual judgment of divorce, under which Jeffery was to pay Cynthia $5,200 per month in permanent alimony. In July 2020, Jeffrey moved to terminate that alimony obligation, asserting that Cynthia had either remarried or had been cohabiting with a man with whom she had a fourteen-year relationship. By statute, N.J.S.A. 2A:34-23(n) and 25, caselaw, e.g., Gayet v. Gayet, 92 N.J. 149 (1983), and the parties’ marital settlement agreement, cohabitation or remarriage is grounds for modifying or terminating alimony.
The Family Part denied Jeffrey’s motion. Today, in an opinion by Judge Fisher, the Appellate Division reversed and remanded the matter for further proceedings. The Appellate Division’s review was “de novo because the judge conducted no hearing and made no factual findings.”
Judge Fisher said that “[a]ll that Jeffrey was required to show was a prima facie case of cohabitation. What constitutes that showing has not been precisely defined since the 2014 enactment of N.J.S.A. 2A:34-23(n).” But the panel rejected the Family Part’s implicit conclusion that Jeffrey was required to present favorable evidence as to all six of the criteria of that statute in order to make a prima facie case of cohabitation. Were that the case, Judge Fisher said, “a finding of cohabitation [would] be as rare as a unicorn.”
For example, one of the statutory criteria for cohabitation is “[i]ntertwined finances such as joint bank accounts and other joint holdings or liabilities.” Judge Fisher observed that “[p]eople tend to treat financial information as confidential and do not normally volunteer it to others, let alone former spouses obligated to pay them alimony.” Thus, a movant such as Jeffrey could not present a prima facie case on that element without discovery, and Landau v. Landau, 461 N.J. Super. 107 (App. Div. 2019), on which the Family Part relied, bars discovery until after a prima facie case of cohabitation is made. (Though implicitly critical of Landau, today’s opinion did not reject Landau, but “assume[d] Landau correctly held that a family judge cannot compel discovery when only some of the indicia of cohabitation have been presented.”). Another statutory criterion– whether there is “[s]haring or joint responsibility for living expenses”– is likewise “something a movant is not likely able to present without a right to compulsory discovery.”
Judge Fisher noted that “despite all the give and take in the motion papers about Cynthia’s living arrangements, the Legislature has determined that cohabitation does not ‘necessarily’ mean that the supported spouse and another ‘maintain a single common household.’ N.J.S.A. 2A:34-23(n). Instead, the Legislature defined cohabitation as ‘a mutually supportive, intimate personal relationship’ in which the couple ‘has undertaken duties and privileges that are commonly associated with marriage or civil union.’ N.J.S.A. 2A:34-23(n).”
Jeffrey had “shown, based on what was available from social media and from the way Cynthia and William Boozan presented in public, as well as information from family members, that Cynthia and William are now or have in the past resided together, that they have had a fourteen-year relationship, that they have traveled together extensively, and that there are other ‘indicia of a mutually supportive intimate personal relationship.'” Cynthia contested that, and the Family Part “mistakenly weighed the parties’ competing sworn statements and accepted as true Cynthia’s explanation of the facts demonstrated by Jeffrey’s moving papers.”
Judge Fisher said that “[w]hen presented with competing certifications that create a genuine dispute about material facts, a judge is not permitted to resolve the dispute on the papers; the judge must allow for discovery and if, after discovery, the material facts remain in dispute, conduct an evidentiary hearing.” The Family Part denied Jeffery’s request for a hearing.
Judge Fisher held that motions like that filed by Jeffrey “are akin to summary judgment motions filed prior to the completion of discovery. When, at that stage, crucial facts are within the sole knowledge of the other party, we have long recognized from the earliest days of our current court system, and since, the impropriety of granting summary judgment in those circumstances. Although it is true family judges should be careful not to permit a fishing expedition into a supported spouse’s private affairs on a weak claim, judges must also remain aware that movants like Jeffrey do not have access to much of the information relevant to a dispute about cohabitation. In civil matters, courts often quite correctly deny or continue summary judgment motions until discovery is completed. Contrary to that well-established approach, Jeffrey was put to the burden of demonstrating the factual sufficiency of his claim when most of the relevant information remains in Cynthia’s possession.”
After recounting the evidence in detail, the panel found that Jeffrey had presented a prima facie case of cohabitation. But apart from the issue of whether Cynthia was cohabiting, Jeffrey presented evidence that she and William Boozan were married. That evidence included multiple social media posts in which Boozan referred to Cynthia as his “wife.” The case was remanded for discovery and an evidential hearing on both the cohabitation and marriage issues.