Cathleen Quinn v. David J. Quinn (074411)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
Cathleen Quinn v. David J. Quinn (A-5-14) (074411)
Argued October 13, 2015 – May 3, 2016
CUFF, P.J.A.D. (temporarily assigned) writing for a majority of the Court.
In this appeal, the Court considers whether the trial court may suspend alimony for the period of time the
alimony recipient cohabited, rather than terminate alimony, as required by the express terms of the parties’
agreement.
Plaintiff Cathleen Quinn and defendant David J. Quinn married on August 27, 1983. On January 3, 2006,
the Quinns divorced and entered into a property settlement agreement (PSA). Each party was represented by
independent counsel. When the parties divorced, David’s annual income was $208,900, while Cathleen’s was
$21,476. The PSA provided that David would pay Cathleen $2,643 in alimony biweekly, subject to annual increases
for inflation. The PSA stated that “alimony shall terminate upon the Wife’s death, the Husband’s death, the Wife’s
remarriage, or the Wife’s cohabitation, per case or statutory law, whichever shall first occur.”
In March 2010, David filed a motion to terminate alimony on the grounds that Cathleen was cohabiting
with John Warholak, whom Cathleen met in August 2007. The trial court ordered a hearing to determine whether
Cathleen’s relationship with Warholak constituted cohabitation. Prior to the hearing, the parties agreed that the facts
would be evaluated under the definition of cohabitation set forth in Konzelman v. Konzelman, 158 N.J. 185 (1999).
At the hearing, Cathleen did not deny that she and Warholak had a romantic relationship, but disputed claims that
they cohabited. Cathleen testified that she understood cohabitation to mean “living with someone on a full time
basis.” The trial court found Cathleen’s answers evasive and inconsistent and concluded that she was not a credible
witness and had litigated in bad faith. Further, on the issue of cohabitation, the court found that Cathleen and
Warholak had an exclusive relationship and had been cohabiting from January 2008 through April 2010. The court
also found that the PSA was fair and equitable, that Cathleen had entered into the PSA voluntarily, and that she had
consented to all of its provisions. Having determined that Cathleen and Warholak had cohabited, the trial court
invoked its equitable powers and suspended alimony for the period of cohabitation -- from January 2008 until April
2010 -- but declined to terminate alimony permanently. The court also awarded David $145,536.74 in attorneys’
fees and costs. The court permitted David to reduce his continuing alimony payments by fifty percent for fifty-six
months, until he had recovered the combined value of the payments he had made during the cohabitation period and
the counsel fees.
David appealed the trial court’s decision to suspend, rather than terminate, alimony, arguing that the terms
of the PSA, coupled with Cathleen’s behavior during the trial court proceedings, mandated that alimony be
terminated. Cathleen cross-appealed, challenging the trial court’s decision that she had cohabited, the validity of the
cohabitation provision, and the attorneys’ fee award. On appeal, the Appellate Division affirmed, denied Cathleen’s
appeal, concluded that the trial court properly found that the cohabitation provision was valid and that Cathleen had
cohabited with Warholak. The panel also determined that the trial court did not abuse its discretion in awarding
attorneys’ fees to David. The Quinns filed cross-petitions for certification. The Court granted certification on
David’s petition and denied certification on Cathleen’s petition. Quinn v. Quinn, 219 N.J. 631 (2014).
HELD: An agreement to terminate alimony upon cohabitation, entered by fully informed parties, represented by
independent counsel, and without any evidence of overreaching, fraud, or coercion, is enforceable. The trial court was
required to apply the remedy of termination, as fashioned by the parties.
1. There is a strong public policy favoring stability of arrangements in matrimonial matters. Therefore, fair and
definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed. When the intent
of the parties is plain and the language is clear and unambiguous, a court must enforce the agreement as written, unless
doing so would lead to an absurd result. To the extent that there is any ambiguity in the expression of the terms of a
settlement agreement, a hearing may be necessary to discern the intent of the parties at the time the agreement was
entered and to implement that intent. (pp. 11-12)
2. An agreement that resolves a matrimonial dispute is no less a contract than an agreement to resolve a business
dispute. The law grants particular leniency to agreements made in the domestic arena and vests judges with greater
discretion when interpreting such agreements. This leniency is derived from the terms of the marital agreement and the
nature of some post-judgment issues, such as custody of children and financial support for the family, which may
require modification of the marital agreement over the years as events occur that were never contemplated by the
parties. In other instances, however, resort to traditional tenets of contract interpretation may be appropriate, such as
when there is a missing term that is essential to implementation of a matrimonial agreement. Application of this rule
was appropriate, for example, when the judgment of divorce did not address the valuation date of the marital home
when it was not sold on the date identified in the agreement. A narrow exception to the general rule of enforcing
settlement agreements as the parties intended is the need to reform a settlement agreement due to unconscionability,
fraud, or overreaching in the negotiations of the settlement. (pp. 12-14)
3. Alimony is an economic right that arises out of the marital relationship and provides the dependent spouse with a
level of support and standard of living generally commensurate with the quality of economic life that existed during
the marriage. In divorce actions, courts may award alimony as the circumstances of the parties and the nature of the
case shall render fit, reasonable and just. Parties to a divorce action may enter into voluntary agreements governing
the amount, terms, and duration of alimony, and such agreements are subject to judicial supervision and
enforcement. Agreements between separated spouses executed voluntarily and understandingly for the purpose of
settling the issue of alimony and child support are specifically enforceable, but only to the extent that they are just
and equitable. (pp. 15-17)
4. New Jersey has a longstanding policy of terminating alimony permanently when the recipient spouse remarries.
Alimony that has been terminated due to remarriage is not revived if the remarriage ends. Unlike remarriage,
cohabitation does not terminate alimony in all instances. In the absence of an agreement that permits the obligor
former spouse to cease payment of alimony, this Court has permitted a modification of alimony, including cessation
thereof, in the event of post-divorce cohabitation only if one cohabitant supports or subsidizes the other under
circumstances sufficient to entitle the supporting spouse to relief. On the other hand, when the parties have outlined
the circumstances that will terminate the alimony obligation, this Court has held that it will enforce voluntary
agreements to terminate alimony upon cohabitation, even if cohabitation does not result in any changed financial
circumstances. Agreements to terminate alimony upon the cohabitation of the recipient spouse are enforceable so
long as the relationship constitutes cohabitation and the cohabitation provision of the PSA was voluntary, knowing
and consensual. (pp. 17-19)
5. Here, the trial court findings fully demonstrated that Cathleen was engaged in the type of relationship that
constitutes cohabitation as contemplated by Konzelman. The only disputed issues are whether the cessation of
cohabitation and the circumstances at the time the agreement was executed warrant enforcement of the agreement.
Cessation of cohabitation does not warrant departure from the agreed terms of the PSA. Cathleen and Warholak
cohabited for almost two and one-half years and continued to do so for one month after David filed the motion to
terminate alimony. This is no different from a remarriage that terminates by death or divorce. In light of the parties’
agreement, the circumstances do not call for a different result. Cathleen was represented by independent counsel
when the PSA was negotiated and executed. She alleged no improprieties and suggested no fraud, overreaching, or
coercion. The parties’ testimony and the trial court’s findings reveal that each party understood the events that
would trigger termination of alimony and the meaning of the critical term in this appeal -- cohabitation. The remedy
fashioned by the trial court and affirmed by the Appellate Division created an agreement different from the one to
which the Quinns agreed. An agreement to terminate alimony upon cohabitation, entered by fully informed parties,
represented by independent counsel, and without any evidence of overreaching, fraud, or coercion, is enforceable. It
is irrelevant that the cohabitation ceased during trial when that relationship had existed for a considerable period of
time. (pp. 20-26)
The judgment of the Appellate Division is REVERSED.
JUSTICE ALBIN, DISSENTING, joined by JUSTICE LaVECCHIA, expresses the view that an anti-
cohabitation clause, untethered to economic needs, is contrary to public policy and unenforceable.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON and SOLOMON join in JUDGE CUFF’s
opinion. JUSTICE ALBIN filed a separate, dissenting opinion in which JUSTICE LaVECCHIA joins.
JUSTICE FERNANDEZ-VINA did not participate.

2
 SUPREME COURT OF NEW JERSEY
A-5 September Term 2014
074411

CATHLEEN QUINN,

Plaintiff-Respondent,

v.

DAVID J. QUINN,

Defendant-Appellant.

Argued October 13, 2015 – Decided May 3, 2016

On certification to the Superior Court,
Appellate Division.

Bonnie C. Frost argued the cause for
appellant (Einhorn, Harris, Ascher,
Barbarito & Frost, attorneys; Ms. Frost and
Matheu D. Nunn, on the brief).

John V. McDermott, Jr., argued the cause for
respondent.

JUDGE CUFF (temporarily assigned) delivered the opinion of

the Court.

In this appeal, the property settlement agreement (PSA)

governing the terms of the parties’ divorce provided that

alimony would terminate if the spouse receiving alimony

cohabited with another. We address whether the trial court may

suspend alimony for the period of time the alimony recipient

cohabited rather than terminate alimony as required by the

express terms of the PSA. Under the circumstances of the record

1
developed at trial, we hold that the trial court was required to

apply the remedy of termination, as fashioned by the parties.

The parties divorced in 2006. Pursuant to the terms of the

PSA that governed the divorce, David J. Quinn agreed to pay

alimony to Cathleen Quinn,1 and she agreed that David’s

obligation to pay alimony would terminate on his death, her

death, her remarriage, or her cohabitation with another.

By January 2008, Cathleen was in what she described as a

committed relationship with a man she had met in August 2007.

David moved to terminate his alimony obligation. Following a

protracted sixteen-day trial over a period of eleven and one-

half months, the trial court found that Cathleen had cohabited

with John Warholak from January 2008 to April 2010. Because the

cohabitation had ceased during the course of the trial, the

trial judge suspended, rather than terminated, David’s alimony

obligation for the period of cohabitation. The trial judge

reinstated alimony as of the date cohabitation ceased and

permitted David to pay one-half of his alimony obligation until

he recouped the alimony paid during cohabitation and the

attorneys’ fees awarded to him by the trial court. The

Appellate Division affirmed, determining that the trial court

1To avoid confusion, we refer to the parties by their first
names. We mean no disrespect by this informality.
2
did not exceed its equitable authority to fashion an appropriate

remedy. We now reverse.

Marital agreements, including PSAs that clearly and

unequivocally provide for the termination of alimony upon

cohabitation, are enforceable when the parties enter such

agreements knowingly and voluntarily. Here, the trial court

found that Cathleen knowingly and voluntarily agreed that

David’s obligation to pay alimony would cease upon the

occurrence of certain clearly defined events, including

cohabitation. The trial court also found that Cathleen had

cohabited with her boyfriend for twenty-eight months, thereby

warranting the termination of alimony. Noting the income

disparity between Cathleen and David, the trial court fashioned

a remedy that transformed the post-marital obligations owed by

the parties to each other. The record developed in this matter

provides no basis to do anything other than to enforce the clear

and unequivocal obligations undertaken by both parties to each

other under the PSA.

We therefore reverse the judgment of the Appellate Division

that affirmed suspension of alimony during the period of

cohabitation and reinstatement of alimony following cessation of

cohabitation.

I.

A.

3
 Plaintiff Cathleen Quinn and defendant David J. Quinn (the

Quinns) married on August 27, 1983. They have a daughter and

son, both of whom are now emancipated. On January 3, 2006,

after twenty-three years of marriage, the Quinns divorced and

entered into a PSA. Each party was represented by independent

counsel.

At the time of the divorce, David’s annual income was

$208,900 and Cathleen’s annual income was $21,476. The PSA

provided that David would pay Cathleen a biweekly alimony

payment of $2634, subject to annual increases for inflation

based on the Consumer Price Index. The PSA stated that “alimony

shall terminate upon the Wife’s death, the Husband’s death, the

Wife’s remarriage, or the Wife’s cohabitation, per case or

statutory law, whichever event shall first occur.”

The PSA also gave Cathleen primary physical custody of

their son, who was fifteen years of age when the Quinns

divorced. Their daughter, aged eighteen, was no longer a minor

and was therefore not covered by the custody agreement. In

addition to the alimony payments, David was required to pay

Cathleen child support of $360 each week, subject to

modification when their son graduated high school and when their

daughter graduated from college.

In March 2010, David filed a motion to terminate alimony on

the grounds that Cathleen was cohabiting with John Warholak,

4
whom Cathleen met in August 2007. The trial court ordered a

plenary hearing to determine whether Cathleen’s relationship

with Warholak constituted cohabitation. Prior to the hearing,

the parties agreed that the facts would be evaluated under the

definition of cohabitation set forth in Konzelman v. Konzelman,

158 N.J. 185 (1999). The trial judge permitted limited

discovery and advised the parties that he was inclined to award

counsel fees to the prevailing party given the nature of the

factual disputes and resulting likelihood of false

certifications.

The plenary hearing began on August 30, 2010, and continued

for sixteen trial days over a period of more than eleven months.

At the hearing, Cathleen did not deny that she and Warholak had

a romantic relationship. The parties, however, disputed whether

Cathleen and Warholak cohabited. Cathleen testified that she

did not cohabit with Warholak and that she understood

cohabitation to mean “living with someone on a full time basis.”

She stated, “I fully understand that if I lived with someone

full time, all the time, and shared a house with somebody that

would be cohabitation and alimony would be terminated[.]” When

asked if she understood that cohabitation would cause her to

lose her alimony “[f]orever[,]” she replied “[y]es.”

The trial court found that Cathleen’s answers “were often

evasive and inconsistent” and that “there were numerous times

5
when [Cathleen] was confronted with documents that were

inconsistent with her prior testimony and she had to modify or

change her testimony.” Ultimately, the trial court concluded

that Cathleen was not a credible witness.

On the issue of cohabitation, the trial court found that

Cathleen and Warholak had an “intimate and committed

relationship” that was “exclusive” and lasted for over two

years. The trial court also found that Warholak had been living

in Cathleen’s home for over two years, although he maintained a

residence of his own. Documentary evidence showed that Warholak

used Cathleen’s address as his own, made phone calls from

Cathleen’s home, and was consistently at the home even when

Cathleen was absent. In addition, the trial court found that

Cathleen’s relationship with Warholak was openly recognized by

their “family and social circle” as a partnership. Finally, the

trial court found that Cathleen and Warholak “acted as a

committed couple in terms of their living and financial

relationships.”

Applying the governing definition of cohabitation expressed

in Konzelman, supra, 158 N.J. at 202-03, the trial court

concluded that Cathleen and Warholak had cohabited for over two

years from January 2008 through April 2010, ending one month

after David filed his motion to terminate alimony. The trial

court also found that the PSA was “fair and equitable[,]” that

6
Cathleen had entered into the PSA voluntarily, and that Cathleen

had consented to all provisions of the PSA.

Having determined that Cathleen and Warholak had cohabited,

the trial court invoked its equitable powers and suspended

alimony for the period of cohabitation -- from January 2008

until April 2010 -- but declined to terminate alimony

permanently. The trial court based its decision on the great

difference in incomes between Cathleen and David, concluding

that Cathleen was “entirely dependent on her alimony for her

support.”

Finally, the trial court found that Cathleen was not

credible in her testimony, that she had litigated in bad faith,

and that she had falsely denied cohabitation. The court

therefore awarded David $145,536.74 in attorneys’ fees and

costs. The court permitted David to reduce his continuing

alimony payments by fifty percent for fifty-six months, until he

had recovered the combined value of the payments he had made

during the cohabitation period and the counsel fees.

B.

David appealed the trial court’s decision to suspend,

rather than terminate, alimony, arguing that the terms of the

PSA, coupled with Cathleen’s behavior during the trial court

proceedings, mandated that alimony be terminated. Cathleen

cross-appealed, challenging the trial court’s decision that she

7
had cohabited, the validity of the cohabitation provision, and

the attorneys’ fee award. The Appellate Division affirmed.

The appellate panel determined that the trial court did not

err as a matter of law in temporarily suspending, rather than

terminating, David’s alimony obligation. The panel acknowledged

that a voluntary and knowing settlement agreement should

generally be enforced in accordance with its terms, but stated

that the family court maintains “its equitable jurisdiction and

its responsibility to ensure fairness” in enforcing a

cohabitation provision. The panel therefore found that “the

court here could consider all the relevant factors to determine

whether an alternative remedy was more equitable in the

particular circumstances of this case.” The panel cautioned

against the frequent use of equitable remedies to subvert

enforceable agreements, but nonetheless concluded that the trial

court “did not exceed its equitable powers or abuse its

discretion” in granting suspension of alimony instead of

termination.

The panel also denied Cathleen’s appeal, concluding that

the trial court properly found that the cohabitation provision

was valid and that Cathleen had cohabited with Warholak. The

panel also determined that the trial court did not abuse its

discretion in awarding attorneys’ fees to David.

8
 The Quinns filed cross-petitions for certification. We

granted certification on David’s petition and denied

certification on Cathleen’s petition. Quinn v. Quinn, 219 N.J.

631 (2014). The sole issue before the Court is whether the

trial court properly invoked its equitable power to modify the

clear and unequivocal terms of a PSA entered knowingly and

voluntarily by both parties.

II.

A.

David argues that, when Cathleen chose to cohabit with

Warholak, alimony terminated in accordance with the PSA and was

not subject to reinstatement. He maintains that the parties had

a “clear and unambiguous” agreement to terminate alimony upon

Cathleen’s cohabitation, and that the trial court indisputably

determined that Cathleen and Warholak cohabited. David argues

accordingly that the trial court’s decision to suspend, rather

than terminate, alimony is contrary to this Court’s well-

established jurisprudence in favor of enforcing marital

settlement agreements.

David also argues that, assuming the trial court has

equitable authority to modify the terms of a PSA, the court

should not have suspended alimony in this instance, due to

Cathleen’s egregious conduct before and during the trial. David

contends that the trial court’s decision gives an alimony

9
recipient free rein to “cohabit, lie about it, and if caught,

reject the paramour, revive alimony, and then cohabit again.”

B.

Cathleen argues that the trial court’s decision to suspend

alimony was permissible and appropriate under the circumstances.

She maintains that her cohabitation relationship with Warholak

was not stable, permanent, or long-lasting and gave her no

economic benefits. Further, Cathleen argues that the language

of the PSA was not specific, definitive, or written in plain

language; was not mutually understood by the parties; and did

not specify how long cohabitation had to exist in order for

alimony to be terminated. Therefore, Cathleen contends that it

would be inequitable to enforce the agreement because she did

not fully understand the consequences of the cohabitation clause

in the termination provision.

Cathleen maintains that alimony payments are like a pension

in that they are a reward for labor -- the labor of taking care

of the home and the family. Cathleen notes that she supported

her husband’s career advancement and took care of their home and

family for over twenty years, and argues that she has a right to

alimony based on that relationship. Thus, Cathleen contends

that it would be inequitable to terminate alimony permanently

based on a relatively short period of cohabitation from which

she gleaned no economic benefits.

10
 III.

A.

Settlement of disputes, including matrimonial disputes, is

encouraged and highly valued in our system. Konzelman, supra,

158 N.J. at 193. Indeed, there is a “‘strong public policy

favoring stability of arrangements’ in matrimonial matters.”

Ibid. (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)). This

Court has observed that it is “shortsighted and unwise for

courts to reject out of hand consensual solutions to vexatious

personal matrimonial problems that have been advanced by the

parties themselves.” Ibid. (quoting Petersen v. Petersen, 85

N.J. 638, 645 (1981)). Therefore, “fair and definitive

arrangements arrived at by mutual consent should not be

unnecessarily or lightly disturbed.” Id. at 193-94 (quoting

Smith, supra, 72 N.J. at 358). Moreover, a court should not

rewrite a contract or grant a better deal than that for which

the parties expressly bargained. Solondz v. Kornmehl, 317 N.J.

Super. 16, 21-22 (App. Div. 1998).

A settlement agreement is governed by basic contract

principles. J.B. v. W.B., 215 N.J. 305, 326 (2013) (citing

Pacifico v. Pacifico, 190 N.J. 258, 265 (2007)). Among those

principles are that courts should discern and implement the

intentions of the parties. Pacifico, supra, 190 N.J. at 266

(citing Tessmar v. Grosner, 23 N.J. 193, 201 (1957)). It is not

11
the function of the court to rewrite or revise an agreement when

the intent of the parties is clear. J.B., supra, 215 N.J. at

326 (citing Miller v. Miller, 160 N.J. 408, 419 (1999)). Stated

differently, the parties cannot expect a court to present to

them a contract better than or different from the agreement they

struck between themselves. Kampf v. Franklin Life Ins. Co., 33

N.J. 36, 43 (1960) (citations omitted). Thus, when the intent

of the parties is plain and the language is clear and

unambiguous, a court must enforce the agreement as written,

unless doing so would lead to an absurd result. See Sachau v.

Sachau, 206 N.J. 1, 5-6 (2011) (“A court’s role is to consider

what is written in the context of the circumstances at the time

of drafting and to apply a rational meaning in keeping with the

expressed general purpose.” (internal quotations and citations

omitted)). To the extent that there is any ambiguity in the

expression of the terms of a settlement agreement, a hearing may

be necessary to discern the intent of the parties at the time

the agreement was entered and to implement that intent.

Pacifico, supra, 190 N.J. at 267.

An agreement that resolves a matrimonial dispute is no less

a contract than an agreement to resolve a business dispute.

Sachau, supra, 206 N.J. at 5; Pacifico, supra, 190 N.J. at 265-

66; Petersen, supra, 85 N.J. at 642. To be sure, “the law

grants particular leniency to agreements made in the domestic

12
arena” and vests “judges greater discretion when interpreting

such agreements.” Pacifico, supra, 190 N.J. at 266 (quoting

Guglielmo v. Guglielmo, 253 N.J. Super. 531, 542 (App. Div.

1992)). This leniency is derived from the terms of the marital

agreement and the nature of some post-judgment issues, such as

custody of children and financial support for the family, that

may require modification of the marital agreement over the years

as events occur that were never contemplated by the parties.

Nevertheless, the court must discern and implement “the common

intention of the parties[,]” Tessmar, supra, 23 N.J. at 201, and

“enforce [the mutual agreement] as written[,]” Kampf, supra, 33

N.J. at 43.

Pacifico, supra, illustrates a case in which the parties

asserted that there was a clear and mutual understanding between

them about a term of the agreement at the time they executed the

agreement. 190 N.J. at 267. When they sought to execute that

provision, however, each party asserted an understanding of the

provision that differed from the other party’s understanding.

Ibid. Under the circumstances, an evidentiary hearing was

required. Ibid.

The Pacifico Court instructs that for equitable reasons

normal tenets of contract interpretation are sometimes not

applicable to matrimonial matters. Id. at 268. For instance,

the doctrine of contra proferentem, which requires a court to

13
interpret an ambiguous clause in favor of the non-drafting

party, usually does not apply in a matrimonial setting because

the matrimonial agreement is commonly the product of

negotiation, not only over the general terms of the agreement

but also over the language in the agreement. Id. at 267-68.

Furthermore, that doctrine assumes unequal bargaining positions.

Ibid.

In other instances, however, resort to traditional tenets

of contract interpretation may be appropriate, such as when

there is a missing term that is essential to implementation of a

matrimonial agreement. Id. at 266. Then, the court may supply

the missing term. Ibid. (citing Restatement (Second) of

Contracts § 204 (1981)). Application of this rule was

appropriate, for example, when the judgment of divorce did not

address the valuation date of the marital home when it was not

sold on the date identified in the agreement. Sachau, supra,

206 N.J. at 8-9.

A narrow exception to the general rule of enforcing

settlement agreements as the parties intended is the need to

reform a settlement agreement due to “unconscionability, fraud,

or overreaching in the negotiations of the settlement[.]”

Miller, supra, 160 N.J. at 419. Guglielmo, supra, illustrates a

case where strict adherence to the unambiguous provisions of the

PSA could not occur due to the unconscionable nature of the PSA.

14
253 N.J. Super. at 535. The parties had been married for

seventeen years and had three children. Id. at 539. The wife

had left her employment as a secretary at her husband’s request

and had not been employed outside the home for seventeen years

at the time of the divorce. Id. at 536, 539. At her husband’s

suggestion, she consulted his cousin to represent her in the

divorce proceeding. Id. at 539. Due to her unfamiliarity with

the household finances, her husband constructed a “rough budget”

for the calculation of support. Ibid. The PSA provided no

permanent support to the wife or a waiver of alimony. Id. at

541. The husband paid only $50 per week, per child, in child

support. Id. at 539.

The budget drafted by the husband was “vastly inadequate to

support [the wife] and her children.” Ibid. The wife and

children moved from a four-bedroom home situated on two acres to

a two-bedroom home. Ibid. The wife obtained part-time

employment, as did her children, two of whom were only fourteen

years of age. Ibid. Finding that the wife’s interests were not

properly or adequately addressed in the agreement due to

overreaching by the husband, a lack of impartiality by her

attorney, and a failure to address spousal support following the

sale of the marital home, the Appellate Division declined to

adhere to strict contract principles in interpreting the

15
agreement and concluded that the agreement must be modified

because it was unconscionable. Id. at 541-42.

B.

In this appeal, we consider a spouse’s receipt of alimony

under a PSA and the circumstances in which alimony may be

terminated.

Alimony is an “economic right that arises out of the

marital relationship and provides the dependent spouse with ‘a

level of support and standard of living generally commensurate

with the quality of economic life that existed during the

marriage.’” Mani v. Mani, 183 N.J. 70, 80 (2005) (quoting

Stiffler v. Stiffler, 304 N.J. Super. 96, 99 (Ch. Div. 1997)).

“In divorce actions, courts may award alimony ‘as the

circumstances of the parties and the nature of the case shall

render fit, reasonable and just[.]’” Innes v. Innes, 117 N.J.

496, 503 (1990) (quoting N.J.S.A. 2A:34-23). “The basic purpose

of alimony is the continuation of the standard of living enjoyed

by the parties prior to their separation.” Ibid. (citing

Mahoney v. Mahoney, 91 N.J. 488, 501-02 (1982)). This permits

the spouse “to share in the accumulated marital assets to which

he or she contributed.” Konzelman, supra, 158 N.J. at 195

(citing Mahoney, supra, 91 N.J. at 500-01).

Parties to a divorce action may enter into voluntary

agreements governing the amount, terms, and duration of alimony,

16
and such agreements are subject to judicial supervision and

enforcement. Id. at 203 (citing Petersen, supra, 85 N.J. at

644). “Agreements between separated spouses executed

voluntarily and understandingly for the purpose of settling the

issue of [alimony and child support] are specifically

enforceable, but only to the extent that they are just and

equitable.” Berkowitz v. Berkowitz, 55 N.J. 564, 569 (1970)

(citing Schlemm v. Schlemm, 31 N.J. 557, 584 (1960); Equitable

Life Assur. Soc. of U.S. v. Huster, 75 N.J. Super. 492, 512-13

(App. Div. 1962)). A “trial court has the discretion to modify

the agreement upon a showing of changed circumstances.” Ibid.

(citing Flicker v. Chenitz, 55 N.J. Super. 273, 292 (App. Div.),

certif. granted, 30 N.J. 152, appeal dismissed by consent, 30

N.J. 566 (1959)). Changed circumstances include “an increase in

the cost of living, an increase or decrease in the income of the

supporting or supported spouse, cohabitation of the dependent

spouse, illness or disability arising after the entry of the

judgment, and changes in federal tax law.” J.B., supra, 215

N.J. at 327 (citing Lepis v. Lepis, 83 N.J. 139, 151 (1980)).

In deciding whether to modify an agreement due to changed

circumstances, “[t]he proper criteria are whether the change in

circumstance is continuing and whether the agreement or decree

has made explicit provision for the change.” Lepis, supra, 83

N.J. at 152.

17
 The law also governs when the obligation to pay alimony

terminates. N.J.S.A. 2A:34-25. This State has a longstanding

policy of terminating alimony permanently when the recipient

spouse remarries. Ibid.; Flaxman v. Flaxman, 57 N.J. 458, 461

(1971) (citing N.J.S.A. 2A:34-25; Ferreira v. Lyons, 53 N.J.

Super. 84, 86-87 (Ch. Div. 1958)). Alimony that has been

terminated due to remarriage is not revived if the remarriage

ends. See Flaxman, supra, 57 N.J. at 463 (holding that, even

where remarriage is annulled, alimony may not be reinstated).

Unlike remarriage, cohabitation does not terminate alimony

in all instances. Gayet v. Gayet, 92 N.J. 149, 153-54 (1983).

In the absence of an agreement that permits the obligor former

spouse to cease payment of alimony, this Court has permitted a

modification of alimony, including cessation of alimony, in the

event of post-divorce cohabitation “only if one cohabitant

supports or subsidizes the other under circumstances sufficient

to entitle the supporting spouse to relief.” Ibid.

On the other hand, when the parties have outlined the

circumstances that will terminate the alimony obligation, this

Court has held that it will enforce voluntary agreements to

terminate alimony upon cohabitation, even if cohabitation does

not result in any changed financial circumstances. Konzelman,

supra, 158 N.J. at 197. Agreements to terminate alimony upon

the cohabitation of the recipient spouse are enforceable so long

18
as the relationship constitutes cohabitation and “the

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

consensual.” Id. at 203.

In Konzelman, a divorced couple had entered into a PSA

whereby “Mr. Konzelman’s support and maintenance obligation of

$700.00 per week would terminate should Mrs. Konzelman undertake

cohabitation with an unrelated adult male for a period of four

consecutive months.” Id. at 191. After hiring a private

investigator, Mr. Konzelman discovered that Mrs. Konzelman had

been cohabiting with another man. Ibid. Mr. Konzelman

therefore stopped making alimony payments, and the parties went

to court. Id. at 192. After a plenary hearing, the trial court

determined that although Mr. Konzelman had established that

cohabitation had occurred, the provision in the PSA authorizing

termination of alimony upon cohabitation was invalid. Ibid.

The trial court therefore reduced, but did not eliminate, Mr.

Konzelman’s alimony payments. Id. at 193.

On appeal, the Appellate Division reversed, finding that

the PSA was enforceable. Ibid. This Court affirmed, finding

that the agreement was voluntary, knowing and consensual, and

that the “provision terminating alimony upon cohabitation [was]

fair under the circumstances of the case[.]” Id. at 203. The

setting of Konzelman, however, did not require the Court to

“determine what would happen if the cohabitation came to an end,

19
including whether other, additional obligations of support could

arise from the cohabitation arrangement itself.” Ibid. We are

now called upon to consider this issue.

IV.

In this appeal, the parties agreed that David would pay

biweekly alimony in the amount of $2634 to Cathleen.2 The PSA

provides that “alimony shall terminate upon the Wife’s death,

the Husband’s death, the Wife’s remarriage, or the Wife’s

cohabitation, per case or statutory law, whichever event shall

first occur.” The parties thereby agreed, clearly and

unequivocally, that David’s obligation to pay alimony would

cease upon Cathleen’s cohabitation.

When the parties entered into the PSA, the Legislature had

not yet spoken on whether cohabitation, like remarriage, could

permanently terminate alimony responsibilities.3 According to

2 The PSA provides that alimony would increase yearly in
accordance with increases in the Consumer Price Index. David
testified that, based on these increases, his current biweekly
alimony obligations amounted to roughly $3000.

3On September 10, 2014, the Legislature enacted N.J.S.A. 2A:34-
23, which provides that “[a]limony may be suspended or
terminated if the payee cohabits with another person.” L. 2014,
c. 42, § 1. The Legislature clarified that this law “shall not
be construed either to modify the duration of alimony ordered or
agreed upon or other specifically bargained for contractual
provisions that have been incorporated into: a. a final
judgment of divorce or dissolution; b. a final order that has
concluded post-judgment litigation; or c. any enforceable
written agreement between the parties.” Id. § 2. Because this
20
the case law in effect at the time the parties executed their

matrimonial agreement, cohabitation was considered a

relationship that was “shown to be serious and lasting.”

Konzelman, supra, 158 N.J. at 203. In Konzelman, the evidence

adduced at trial demonstrated that the couple lived together

most of the time, shared household chores, established a joint

savings account, and presented themselves to family and others

as being in a close and sustained relationship, which supported

a finding of cohabitation. Id. at 202.

Here, the trial court findings, which are not the subject

of this appeal, fully demonstrated that Cathleen was engaged in

the type of serious, stable, and enduring relationship that

constitutes cohabitation as contemplated by Konzelman. The only

disputed issues are whether the cessation of cohabitation and

the circumstances at the time the agreement was executed warrant

enforcement of the agreement.

Here, the cessation of cohabitation does not warrant

departure from the agreed terms of the PSA. Cathleen and

Warholak cohabited for almost two and one-half years. During

that time, they presented themselves to family, friends, and

coworkers as a couple. Warholak called Cathleen’s employer when

she was ill, advocated on her behalf with her employer, cared

law was enacted after the PSA was entered, it does not govern
this case, and the terms of the PSA apply.
21
for Cathleen’s father in the days before his death and

participated in his funeral. Warholak’s sons by a prior

marriage referred to Cathleen as “Mama Quinn” and slept in rooms

reserved for them when they visited their father in Cathleen’s

home.

Furthermore, Cathleen continued to cohabit with Warholak

after David filed the motion to terminate alimony and still

cohabited with him when the trial commenced. This record

presents a situation no different from a remarriage that

terminates by death or divorce. In light of the parties’

agreement that alimony would terminate upon cohabitation, the

circumstances here do not call for a different result.

It bears repeating that the cohabitation provision of a PSA

must be voluntary, knowing and consensual to permit enforcement

of the provision. Id. at 203. The trial court findings

demonstrate that this cohabitation provision satisfies the

criteria for enforcement. Cathleen testified that she knowingly

and voluntarily agreed to the terms of the agreement governing

termination of alimony. She knew what conduct would be

considered cohabitation. She knew that she would forego her

alimony if she cohabited and David moved to enforce the

cohabitation provision.

Significantly, Cathleen was represented by independent

counsel when the PSA was negotiated and executed. She alleged

22
no improprieties and suggested no fraud, overreaching, or

coercion. Cathleen’s sole defense was that her romantic

relationship with Warholak should not be considered

cohabitation. Although we acknowledge that the trial court had

a duty to supervise David’s invocation of his right to terminate

his alimony obligation, having found that Cathleen had cohabited

for an extended period of time, the trial court had no basis to

fashion a remedy short of the one agreed to by the parties.

This is not a case in which there is a missing term

required to effectuate a provision of the agreement, as in

Sachau. It is not a case in which one party has overreached or

has received inadequate representation, as in Guglielmo. And it

is not a case in which the parties contend that a critical term

was understood at the time, but later each party reveals that

they held a different understanding of the provision at the time

of agreement, as in Pacifico. Rather, this is a case in which

the parties’ testimony and the trial court’s findings reveal

that each party understood the events that would trigger

termination of alimony and the meaning of the critical term in

this appeal -- cohabitation.

The remedy fashioned by the trial court and affirmed by the

Appellate Division created an agreement different from the one

to which the Quinns agreed. The judicial remedy ignored the

certitude provided by their settlement, or indeed any

23
settlement, which obtained the result desired by all parties --

the amicable resolution of disputes fashioned by the litigants

to meet their particular needs.

Finally, we reject the suggestion that enforcement of this

cohabitation agreement permits a former spouse to control the

post-marital conduct of the other spouse. Such a contention

misconstrues the purpose of identifying cohabitation as an

alimony-termination event and also misconstrues this record.

When parties to a matrimonial settlement agreement have agreed

to permit termination of alimony on remarriage or cohabitation,

they have recognized that each are equivalent events. In each

situation the couple has formed an enduring and committed

relationship. In each situation, the couple has combined forces

to mutually comfort and assist the other. The only distinction

between remarriage and cohabitation is a license and the

recitation of vows in the presence of others. When the facts

support no conclusion other than that the relationship has all

the hallmarks of a marriage, the lack of official recognition

offers no principled basis to treat cohabitation differently

from remarriage as an alimony-terminating event.

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 stays in the home of one or the

24
other, rises to the level of cohabitation. We agree that this

level of control over a former spouse would be unwarranted and

might violate the no-obligation clause found in many divorce

agreements.4 However, the romantic relationship described above

is not the long-term relationship presented in this voluminous

record.

Our dissenting colleagues highlight the financial

consequences of this decision to Cathleen. To be sure, those

consequences are serious. Yet the record demonstrates that she

knew that cohabitation would risk the loss of her primary source

of income and, recognizing the consequences, she proceeded to

cohabit with Warholak. She, not the Court or her former

husband, exacerbated her financial situation by quitting her job

and fashioning a defense that was found baseless by the trial

court.

We also cannot subscribe to the view advanced by our

dissenting colleagues that applying the Gayet economic reliance

or dependence rule is somehow less intrusive in the personal

life of the former spouse. There are few exercises more

intrusive than the need to identify every expenditure and the

source of the funds for each expenditure. Such an inquiry

4 For example, the parties’ PSA states that, except as otherwise
provided, “the parties shall and do hereby mutually remise,
release and forever discharge each other from any and all suits,
actions, debts, claims, demands, and obligations whatsoever[.]”
25
reveals a vast amount of personal information about the daily

life of the former spouse that is of no concern to the obligor

spouse. Moreover, sixteen years ago in Konzelman, this Court

declined to import the Gayet economic dependence or reliance

rule when the parties have agreed in a marital settlement

agreement that cohabitation is an alimony-termination event. We

discern no basis to depart from that determination.

V.

In sum, we reiterate today that an agreement to terminate

alimony upon cohabitation entered by fully informed parties,

represented by independent counsel, and without any evidence of

overreaching, fraud, or coercion is enforceable. It is

irrelevant that the cohabitation ceased during trial when that

relationship had existed for a considerable period of time.

Under those circumstances, when a judge finds that the spouse

receiving alimony has cohabited, the obligor spouse is entitled

to full enforcement of the parties’ agreement. When a court

alters an agreement in the absence of a compelling reason, the

court eviscerates the certitude the parties thought they had

secured, and in the long run undermines this Court’s preference

for settlement of all, including marital, disputes. Here, there

were no compelling reasons to depart from the clear,

unambiguous, and mutually understood terms of the PSA. We

therefore reverse the judgment of the Appellate Division.

26
 VI.

The judgment of the Appellate Division is reversed.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON and SOLOMON
join in JUDGE CUFF’s opinion. JUSTICE ALBIN filed a separate,
dissenting opinion in which JUSTICE LaVECCHIA joins. JUSTICE
FERNANDEZ-VINA did not participate.

27
 SUPREME COURT OF NEW JERSEY
A-5 September Term 2014
074411

CATHLEEN QUINN,

Plaintiff-Respondent,

v.

DAVID J. QUINN,

Defendant-Appellant.

Albin, J., dissenting.

A property settlement agreement in a divorce action should

address the economic consequences of a marriage’s dissolution;

it should not contain senseless shackles that deprive a spouse

of the right to seek love and companionship. An ex-husband

should not be empowered through a property settlement agreement

to threaten his ex-wife with the termination of her alimony if

she cohabits with another person, when the living arrangement

does not change her financial circumstances. Anti-cohabitation

clauses unrelated to the economic standing of an ex-spouse

should be contrary to public policy because they serve no

purpose other than as instruments of oppression.

Marriage, in part, is an economic partnership, and in many

cases one spouse may have subordinated her earning potential or

career for the greater good of the family and the financial

success of the other spouse. Alimony is a right that assures

1
the divorced spouse that she can maintain the lifestyle that she

enjoyed while married. Although the right to alimony is

available to all ex-spouses, regardless of gender, the reality

is that women are overwhelmingly the ones dependent on alimony.

“The private lives of divorced women are no business of the

law” when their personal relationships have not enhanced their

economic standing. Konzelman v. Konzelman, 158 N.J. 185, 204

(1999)(O’Hern, J., dissenting). If an ex-husband cannot be

constrained from pursuing a loving or romantic relationship,

then why should an ex-wife be constrained from pursuing

happiness by the hold of an anti-cohabitation clause untethered

to changed economic circumstances? It is not enough to say that

a contract is a contract when, as here, a provision is contrary

to public policy.

The majority’s enforcement of the anti-cohabitation clause

in this case will pauperize the ex-wife and probably leave her

dependent on public assistance while her ex-husband enjoys the

fruits of his affluence made possible by her marital sacrifices.

Because I cannot agree to this miscarriage of justice, I

respectfully dissent.

I.

Cathleen and David Quinn were married for twenty-two years

before their divorce in 2006. During their marriage, they

raised two children, a daughter and son, who at the time of the

2
divorce were nineteen and sixteen years old. Cathleen asserted

that David “ascended the corporate ladder for twenty years while

[Cathleen] was the homemaker taking care of the family.” At the

time of the divorce, David earned a salary that exceeded

$200,000 a year, while Cathleen earned a little more than

$20,000 a year. The minor son continued to live with his mother

after his parents’ separation.

Cathleen and David entered into a property settlement

agreement that was incorporated into a judgment of divorce. The

agreement provided that Cathleen would receive permanent alimony

in the amount of approximately $72,000 per year. Additionally,

the agreement provided that “alimony shall terminate upon the

Wife’s death, the Husband’s death, the Wife’s remarriage, or the

Wife’s cohabitation, per case or statutory law, whichever event

shall first occur.” (Emphasis added). The agreement did not

exact a penalty if David cohabited.

In 2007, Cathleen began a romantic relationship with John

Warholak. Although Warholak lived at Cathleen’s home from

January 2008 until April 2010, there is no evidence that

Warholak financially supported Cathleen. Cathleen’s

relationship with Warholak ended shortly after David filed a

motion for termination of alimony based on Cathleen’s

cohabitation. David, who was earning more than $250,000 per

3
year at the time, did not argue that he could not afford to

continue making alimony payments.

The family court conducted a hearing on David’s motion and

determined that Cathleen had cohabited for a period of twenty-

eight months. The Court ordered that Cathleen pay back the

$169,806 in alimony payments that she had received during the

cohabitation period and reimburse David for $145,536.74 in

attorneys’ fees. The total amount due, $315,342.74, was to be

deducted from Cathleen’s continued alimony payments by reducing

those payments by one half until the judgment was paid.

The Appellate Division affirmed, and now this Court

reverses. The majority holds that Cathleen’s violation of the

anti-cohabitation clause required the irrevocable termination of

her alimony, backdated to January 2008. The majority affirms

the family court’s order that Cathleen is responsible for

David’s attorneys’ fees. As a result of the majority’s

decision, Cathleen will no longer receive alimony and is

obligated to pay David $315,342.74 from her salary of

approximately $20,000 per year. The ruling leaves Cathleen

destitute and a good candidate for public assistance.1

1 While the poverty level for a single individual is $11,880 per
year, see Federal Poverty Level, HealthCare.gov,
https://www.healthcare.gov/glossary/federal-poverty-level-FPL/,
New Jersey residents may for example, qualify for supplemental
nutritional assistance at an income of $21,978, see General
Assistance (WorkFirst NJ), State of New Jersey, Department of
4
 The majority reaches this unjust result by its adherence to

the a-contract-is-a-contract doctrine. But a contractual

provision that is contrary to public policy is unenforceable. A

spouse has no legitimate reason to condition the receipt of

alimony on an ex-spouse not cohabiting with someone whom she

loves, when the economic circumstances of the ex-spouse remain

unchanged. The public interest is not advanced by giving a

spouse the ability to control or intrude into the intimate

affairs of his ex-spouse. The law should not encourage a spouse

to trail or spy on an ex-spouse, or to hire investigators to do

so, to gain some unwarranted financial benefit.2 Nor should a

court stand in the way of an ex-spouse pursuing happiness or

authorize the forfeiture of alimony earned over many years of

marriage, such as in the circumstances presented here.

A brief review of the relevant case law will show how we

have reached the current state of our jurisprudence.

II.

“Alimony is an ‘economic right that arises out of the

marital relationship and provides the dependent spouse with “a

level of support and standard of living generally commensurate

Human Services, Division of Family Development,
http://www.state.nj.us/humanservices/dfd/programs/assistance/.

2In Konzelman, supra, a private investigator watched a “residence
seven days a week for 127 days” to determine whether a divorced
wife cohabited with an unrelated male. 158 N.J. at 191.
5
with the quality of economic life that existed during the

marriage.”’” Quinn v. Quinn, __ N.J. __, __ (2016) (slip op. at

16)(quoting Mani v. Mani, 183 N.J. 70, 80 (2005)). Alimony is a

right earned by a spouse, often by personal sacrifices made so

that the other spouse can pursue a career and enhanced earning

power. See Mahoney v. Mahoney, 91 N.J. 488, 500-01 (1982).

Alimony can be modified when the economic circumstances of the

parties change, see N.J.S.A. 2A:34-23(c), but cannot be

extinguished for reasons contrary to public policy, see Petersen

v. Petersen, 85 N.J. 638, 642, 646 (1981) (indicating that

alimony and support agreements between spouses that are unfair

and unjust are not enforceable in equity).

In Gayet v. Gayet, 92 N.J. 149 (1983), this Court held that

a husband -- ordered to pay alimony as part of a divorce decree

-- was not entitled to a modification of his alimony merely

because his ex-wife cohabited with an individual.

Traditionally, “the test for modification of alimony is whether

the relationship has reduced the financial needs of the

dependent former spouse.” Id. at 150. The Court adopted an

economic-needs test to determine whether an alimony award should

be modified as a result of cohabitation. Id. at 153-54. Thus,

a modification of alimony based on changed circumstances for

cohabitation is permitted “only if one cohabitant supports or

subsidizes the other under circumstances sufficient to entitle

6
the supporting spouse to relief.” Ibid. That approach, the

Court concluded, “best balances the interests of personal

freedom and economic support and comports with the principles

of” our jurisprudence and statutory law. Id. at 154. The Court

recognized that “[t]he extent of actual economic dependency, not

one’s conduct as a cohabitant, must determine the duration of

support as well as its amount.” Ibid.

In Konzelman v. Konzelman, 158 N.J. 185 (1999), the Court

took a wrong turn when it concluded that the parties could

contract away the fundamental principles animating Gayet. The

Court in Konzelman enforced a provision in a property settlement

agreement that conditioned the receipt of alimony on an ex-wife

not cohabiting with an unrelated male. Id. at 191, 203. The

anti-cohabitation clause was upheld despite the absence of any

change in the economic circumstances of the ex-wife. Id. at

196. Anti-cohabitation clauses under Konzelman permit the

forfeiture of the right to alimony even if the cohabiting ex-

spouse receives no financial support from the person with whom

she resides. Ibid.

In a dissent joined by Justice Stein, Justice O’Hern

correctly concluded that Konzelman abandoned Gayet’s financial-

needs test, encouraged unwarranted interference in the personal

affairs of the ex-wife, and exalted the right to contract above

7
public policy. See id. at 204, 209 (O’Hern, J. dissenting).3 In

explaining the wrongness of the Konzelman decision, Justice

O’Hern made the following points. Legitimizing an anti-

cohabitation clause untethered to a change in economic

circumstances (1) permits a spouse “to exert unjust and

inappropriate control over the [alimony] recipient’s personal

life”; (2) allows money to be used as a negotiating tool to “buy

a woman’s right to choose her companions”; and (3) “force[s]

attorneys and parties to bargain over the fair value” of a

clause that has no purpose other than “to retain control over

the divorced spouse.” Id. at 206-07, 210.

Justice O’Hern noted that economic need and dependency

underpins an alimony obligation. Id. at 208. He concluded that

it was “manifestly unfair to relieve Mr. Konzelman of all

alimony obligations based upon Mrs. Konzelman’s choice of

companionship with another man,” without requiring him to

demonstrate that his ex-wife’s “financial status is any better

because of her new relationship.” Id. at 208-09. He lamented

that the majority ruling in Konzelman would result in “tasteless

inquiries into the private lives of divorced women.” Id. at

210. Justice O’Hern observed that enforcement of the anti-

cohabitation clause permitted Mr. Konzelman “to reap the

3 Justice O’Hern authored Gayet.
8
benefits of an increased earning capacity built up during the

marriage” while “casting [his] partner of twenty-seven years

into poverty” for the “sin” of entering into a loving

relationship with another man. Id. at 209.

Justice O’Hern’s discerning dissent spoke to the realities

of his day, and our day, and of a court’s obligation not to

enforce an unreasonable, unfair, and overbearing provision of a

property settlement agreement. Stare decisis is an important

doctrine to promote stability in our jurisprudence, but it is

not a command to perpetuate the mistakes of the past when the

wrongness of a past decision is revealed in the fullness of

time. See Lawrence v. Texas, 539 U.S. 558, 577, 123 S. Ct.

2472, 2483, 156 L. Ed. 2d 508, 525 (2003).

III.

A.

The family court is a court of equity, and yet the majority

approves the use of an anti-cohabitation clause as a means to

oppress an ex-spouse. During twenty-two years of marriage,

Cathleen contributed to David’s ability to advance his career

and increase his earning capacity. No rational public policy is

furthered by forcing Cathleen to choose between her right to

economic support by her ex-husband and her desire to enter into

a meaningful and loving relationship. The majority not only

terminates all of Cathleen’s support by ordering a forfeiture of

9
her alimony, but also directs her to pay her affluent husband

over $300,000, approximately thirteen times her annual salary.

This absurd and ruinous result that pauperizes her is the

antithesis of equity.

B.

Although matrimonial agreements are governed by basic

contract principles, Pacifico v. Pacifico, 190 N.J. 258, 265-66

(2007), contractual provisions that are contrary to public

policy are unenforceable, Marcinczyk v. State of New Jersey

Police Training Comm’n, 203 N.J. 586, 594 (2010), even when

those provisions are contained in a property settlement

agreement, Petersen, supra, 85 N.J. at 640, 646. In Petersen,

we held that a property settlement agreement providing for an

automatic escalation of alimony and support payments based on an

increase in a husband’s net income would be unenforceable absent

a determination that, despite changed circumstances, “the

enforcement of those terms would be fair, just and equitable.”

Ibid. Additionally, in Giangeruso v. Giangeruso, 310 N.J.

Super. 476, 477 (App. Div. 1997), the Appellate Division

declared void as against public policy a clause in a property

settlement agreement in which the parties stipulated “that the

children shall not have any contact with any

girlfriend/boyfriend or love interest of the other if the

children express reluctance to do so.”

10
 It is clear that the right to contract does not reign

supreme in family matters and that the greater good must prevail

over the schemes and designs of a party or parties when a

contractual provision offends public policy. The family court,

in particular, is invested with equitable powers to ensure that

individual rights are not trampled by oppressive contractual

clauses that serve no legitimate purpose. See Petersen, supra,

85 N.J. at 644-46. Among the “unalienable rights” guaranteed in

the first article and paragraph of the New Jersey Constitution

is the right to pursue “happiness.” N.J. Const. art. I, ¶ 1.

The contractual provision in this case empowers an ex-husband to

compel his former wife to choose between continuing a loving

relationship and maintaining her earned right to alimony, even

when her new relationship has not changed her economic

circumstances.

The hardship and unfairness caused by today’s decision will

be disproportionately borne by divorced women who, by an

overwhelming number compared to men, are dependent on alimony

for their support.4

4 According to the United States Census Bureau, in the 2010
census, of the 392,000 people in the nation who listed alimony
as a source of income, 380,000 were women. See Current
Population Survey, Source of Income in 2010-Number with Income
and Mean Income of Specified Type in 2010 of People 15 Years Old
and Over by Age, Race, and Hispanic Origin, and Sex, Both Sexes,
http://www.census.gov/hhes/www/cpstables/032011/perinc/new09_001
.htm; Current Population Survey, Source of Income in 2010-Number
11
 C.

Finally, the majority errs in suggesting that cohabitation

and marriage are or should be equivalent under the law. See

Quinn, supra, __ N.J. at __ (slip op. at 24). Marriage is more

than a solemn exchange of vows. The law confers on married

couples -- not cohabiting partners -- considerable economic and

other benefits. See, e.g., N.J.S.A. 2A:84A-22 (marital

privilege limited to spouse or civil union partner); N.J.S.A.

3B:5-3 (spouse eligible for share of intestate estate); N.J.S.A.

3B:5-15 (spouse or domestic partner has right to intestate share

of decedent’s estate when decedent’s will written before

marriage or domestic partnership); N.J.S.A. 3B:8-1 (only

surviving spouses and domestic partners qualify for right to

elective share of decedent’s estate); N.J.S.A. 18A:62-25 (spouse

of member of New Jersey National Guard killed while performing

duties eligible for post-secondary education tuition benefits);

N.J.S.A. 18A:71-78.1 (spouse of volunteer firefighter eligible

for post-secondary education tuition benefits); N.J.S.A. 34:11-

4.5 (wages due to deceased employee may be paid to spouse);

N.J.S.A 34:11B-3(j) (defining family member as “a child, parent,

with Income and Mean Income of Specified Type in 2010 of People
15 Years Old and Over by Age, Race, and Hispanic Origin, and
Sex, Females,
http://www.census.gov/hhes/www/cpstables/032011/perinc/new09_013
.htm.
12
spouse, or one partner in a civil union couple” for purposes of

Family Leave Act); N.J.S.A. 34:15-13 (spouse of deceased

eligible for death benefits under workers compensation law);

N.J.S.A. 46:3-17.2 (spouses may hold property by tenancy by

entirety); N.J.S.A. 46:15-10 (spouses exempt from realty

transfer fee); N.J.S.A. 54A:2-1(a) (determination of taxable

income affected by marital status); N.J.S.A. 54A:3-3 (spouse’s

medical expenses may be partially deducted from taxable gross

income). Cf. United States v. Windsor, __ U.S. __, __, 133 S.

Ct. 2675, 2694, 186 L. Ed. 2d 808, 828-29 (2013) (noting that

married couples are entitled to specific government healthcare

benefits, to special protections for domestic-support

obligations under the Bankruptcy Code, and to file their state

and federal taxes jointly).

Additionally, by its recent amendments to the alimony

statute, N.J.S.A. 2A:34-23, the Legislature has signaled that it

did not intend to conflate cohabitation with marriage. The new

statute provides that “[a]limony may be suspended or terminated

if the payee cohabits with another person.” N.J.S.A. 2A:34-

23(n) (emphasis added). In contrast, when “a former spouse

shall remarry . . . permanent and limited duration alimony shall

terminate as of the date of remarriage.” N.J.S.A. 23:34-25

(emphasis added).

13
 The permissive language in N.J.S.A. 2A:34-23(n) -- unlike

the mandatory language in N.J.S.A. 2A:34-25 -- indicates that

the Legislature did not intend alimony to terminate, or even be

modified, automatically in the event of cohabitation. The

permissive language requires our family courts to equitably

exercise discretion. In doing so, undoubtedly, in the absence

of a property settlement agreement, our courts will look to the

guiding principles of Gayet’s economic-needs test. Clearly, the

Legislature intended courts to treat marriage and cohabitation

differently in determining when to terminate or modify alimony.

IV.

The majority in this case has reached not the inevitable,

but the inequitable result. The majority’s adherence to

Konzelman has led to an unjust outcome in this case. We are not

bound to follow a decision whose principles are unsound and when

considered reflection counsels that we should take a different,

more just course. The passage of time has not dimmed the

logical force of Justice O’Hern’s dissent in Konzelman. Denying

a divorced woman her right to alimony merely because she has

pursued happiness and cohabits advances no legitimate interest

when her economic circumstances remain unchanged. The wrong

here is not made right because the anti-cohabitation clause is

contained in a property settlement agreement.

14
 I would hold that an anti-cohabitation clause, untethered

to economic needs, is contrary to public policy and

unenforceable. I therefore respectfully dissent.

15
 SUPREME COURT OF NEW JERSEY

NO. A-5 SEPTEMBER TERM 2014
ON CERTIFICATION TO Appellate Division, Superior Court

CATHLEEN QUINN,

Plaintiff-Respondent,

v.

DAVID J. QUINN,

Defendant-Appellant.

DECIDED May 3, 2016
Chief Justice Rabner PRESIDING
OPINION BY Judge Cuff (temporarily assigned)
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY Justice Albin

CHECKLIST REVERSE DISSENT
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA ------------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 4 2