New Appellate Division Decision on Cohabitation Addresses a Payor’s Prima Facie Burden
When is a supported spouse’s proof of a mutually supportive intimate personal relationship with another person enough to overcome the first step in the process towards terminating alimony? In the recently issued unpublished (not precedential) decision of Goethals v. Goethals, the Appellate Division reversed a trial court’s decision finding that the payor failed to fulfill his initial prima facie burden that would entitle him to a future hearing and discovery from his former wife regarding the alleged cohabitation.
The payor ex-husband moved to modify his alimony obligation based on the payee ex-wife’s purported cohabitation and salary increase. The payee cross-moved for counsel fees and an increase in child support based on the payor’s alleged significant salary increase since the divorce. After the trial judge denied both motions, the parties each filed cross-appeals arguing that the trial judge erred in determining that each of them failed to establish a prima facie case of changed circumstances. As indicated above, the moving party asking for the termination of support has the burden to show a case of prima facie changed circumstances in order for a trial court to decide there exists enough evidence to: 1) grant discovery; and 2) start an inquiry into the parties’ relevant expenses and financial status before making a final determination on the existing alimony obligation.
Here, as with many divorced couples, the issues of child support and alimony were addressed in the parties’ Marital Settlement Agreement (MSA) as incorporated into their Final Judgment of Divorce (FJOD). Husband was to pay an alimony amount which was arrived to off his base salary, as well as his gross bonus, deferred compensation and stock options or any form of additional compensation, with a cap amount set. As to cohabitation, the MSA provided cohabitation constituted “a mutually supportive, intimate, personal relationship,”, which would be considered a change of circumstances warranting a review of alimony.
In support of his cohabitation allegation, the payor presented evidence including, but not limited to:
- Plaintiff and her partner had been together in an exclusive, committed relationship for three years and had recently become engaged.
- Facebook and Instagram activity.
- Personal observations and a surveillance report prepared by a firm he hired to provide him with specifics on overnights spent by Plaintiff’s partner at her residence.
Notably, while payee admitted her engagement to her significant other, the Judge found that despite all the evidence presented, the payor failed to make the prima facie case because there was no indication of intertwined finances, sharing of household chores or caring for each other’s children, which are just a few of the factors that courts are to consider when determining whether adjust alimony based on cohabitation. The overnight time the payee’s fiancé spent at her home was deemed sporadic, and proof of moving pods present at the home were deemed insufficient to prove the fiancé was moving in with the payee (or that the possessions in the subject boxes belonged to him).
The payor filed for reconsideration of the trial court’s decision, wherein he argued that the MSA did not require that there be an economic impact or intertwined finances when addressing cohabitation. The payor specifically focused on how the trial judge’s prior ruling focused more on the fiscal component of the cohabitation analysis than any other factor or detail. The reconsideration motion was denied and a year later the payor filed again to terminate alimony based on the payee’s cohabitation and increased income. In this subsequent application, the payor provided additional proofs of how the payee and her fiancé held themselves and both of their children out as a blended family unit by providing their joint iCloud information, holiday photos, and indications that the parties’ children referred to the fiancé as their “Stepdad.” The payor also alleged an almost 30% increase in the payee’s income from the time the MSA was entered.
As indicated above, the Appellate Division reversed the trial court’s decision. What, as a result, did the Appellate Division see differently here from multiple prior judges, only further highlighting the inconsistent manner by which courts apply cohabitation law when addressing the payor’s prima facie burden? Importantly, it held that under the cohabitation statute a court cannot necessarily find the absence of cohabitation solely on grounds that the couple in question does not live together on a full-time basis. In so holding, the Appellate Division specifically held that by dismissing the insurmountable evidence through social media posts and surveillance submitted by the payor through his various motions, as well as requiring there be specific evidence of intertwined finances without the ability to obtain discovery and the couple living together on a full-time basis, the trial judges improperly disregarded the MSA’s express language defining cohabitation as “a mutually supportive, intimate, personal relationship . . . .”
When observed within the context of ongoing cohabitation case law, Goethals highlights the inconsistency with which the payor’s prima facie case is analyzed. While each case is fact specific, practitioners and litigants ultimately need a better understanding and expectation of what is required to overcome the initial step in the cohabitation process. We will continue to update our readers as this area of the law continues to evolve.
If you are interested in discussing an existing alimony obligation, Ziegler, Zemsky & Resnick can assist you in properly addressing your legal needs. Call us at (973) 878-4373 to schedule a consultation.