TIMOTHY J. PETERS VS. MARSHA W. PETERS (FM-18-0237-09, SOMERSET COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5604-17T1

TIMOTHY J. PETERS,

Plaintiff-Appellant,

v.

MARSHA W. PETERS,

Defendant-Respondent.
___________________________

Argued June 4, 2019 – Decided July 5, 2019

Before Judges Yannotti, Gilson and Natali.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County,
Docket No. FM-18-0237-09.

Andrew M. Shaw argued the cause for appellant (De
Tommaso Law Group, LLC, attorneys; Andrew M.
Shaw, on the briefs).

Melissa Marie Ruvolo argued the cause for respondent
(Ruvolo Law Group, attorneys; Melissa Marie Ruvolo,
of counsel and on the brief; Alyssa Engleberg, on the
brief).

PER CURIAM
 Plaintiff appeals from an order entered by the Family Part on July 27,

2018, which among other things, denied his motion to terminate his alimony

obligation. For the reasons that follow, we reverse and remand for further

proceedings.

I.

The parties were married in August 1983, and the marriage was dissolved

by a Dual Judgment of Divorce (DJOD), dated July 12, 2010. The DJOD

incorporated an Equitable Distribution Agreement, and stated that the parties

had agreed to binding arbitration to finalize a Matrimonial Settlement

Agreement (MSA). The parties finalized the MSA on May 25, 2011. It appears,

however, that the DJOD was not thereafter amended to incorporate the MSA.

The MSA provided that plaintiff agreed to pay defendant permanent

alimony "on a step-down basis[.]" The MSA states that plaintiff shall pay

defendant $12,000 per month from January 1, 2011 through August 1, 2014, and

$11,500 per month beginning on September 1, 2014, unless a "terminating

event" occurred. The MSA identifies four terminating events, one of which

states: "The Wife's cohabitation with an unrelated adult in a relationship

tantamount to marriage, for a period of nine months. The Wife shall be obligated

to notify the Husband of the fact she is residing with an unrelated adult. "

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 On May 15, 2018, plaintiff filed a motion which sought, among other

relief, (1) termination of alimony on the basis of defendant's cohabitation with

an unrelated person for at least nine months, (2) reimbursement of previously-

paid alimony, (3) immediate termination of alimony, discovery, and a plenary

hearing, (4) modification of his alimony obligation based on changed

circumstances, and (5) an award of attorney's fees.

In support of his motion, plaintiff submitted a certification and numerous

exhibits. In his certification, plaintiff asserted that "[d]efendant has been

cohabitating with an unrelated adult named [J.D.] in a relationship tantamount

to marriage since as early as 2011."1 Plaintiff attached numerous Facebook

photos, which allegedly showed that since 2011, defendant has, at times, worn

a diamond ring on her left-ring finger. Plaintiff claimed the ring was an

engagement ring that J.D. had given to defendant.

In addition, plaintiff alleged that defendant and J.D. had comingled their

finances. Plaintiff provided the court with copies of documents showing that

J.D. had loaned defendant $125,250, and that defendant had provided J.D. with

a mortgage on her home in Bernardsville to secure repayment of the loan.

1
We use initials to identity this individual in order to protect his privacy
interests.
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Plaintiff also claimed defendant and J.D. had purchased a home together in

Pennsylvania. In support of this claim, plaintiff submitted a copy of a

publication called, "The Intelligencer," dated July 16, 2015, which identified

defendant and J.D. as "[f]uture homeowners" in a residential community near

Newtown, Pennsylvania.

The publication also quotes defendant and J.D. as stating that they chose

to purchase a home in the residential community because "it included features

like a full basement as well as options that we were interested in like the

sunroom." Plaintiff claimed defendant resided in the home in Pennsylvania

because photos of the residence, which were posted online when the home was

later placed on the market for sale, allegedly showed defendant's personal items

in the home, including a large leather couch, rug, desk, mirror, table, and chair.

Plaintiff also stated that he hired a private investigator (PI) to undertake

surveillance of defendant on six days in July 2015. The PI's report states that

on several occasions, it appeared that defendant stayed overnight at J.D.'s home

in Chester, New Jersey, and at the home in Newtown, Pennsylvania. The PI also

observed defendant and J.D. dine out together at restaurants with their respective

children. In addition, the PI observed defendant shopping at grocery, hardware

and pet stores.

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 Finally, plaintiff provided the court with copies of numerous posts and

photographs apparently taken from J.D.'s Facebook page, which was available

publically. Plaintiff alleged these photos, which date from 2011 through April

2018, show defendant and J.D. have spent a significant amount of time with each

other; traveled together to Bermuda, France, Italy, and Spain; and attended

various family and social functions. Plaintiff also alleged that defendant owns

a home in Florida, and she and J.D. divide their time between their properties in

the northeast and Florida.

On June 14, 2018, defendant opposed plaintiff's motion and filed a cross-

motion seeking the award of attorney's fees. Defendant submitted a certification

in which she stated that after the divorce was finalized, she met J.D., "a widower

who lived with his children in Chester[.]" She resided with her children in

Bernardsville. Defendant said that less than one year into their dating

relationship, J.D. bought her a diamond ring. She selected the ring and

"treasured it as the beautiful gift it was." Defendant also stated that she "wear[s]

[the ring] when [she] gets dressed up or when [she is] out and do[es] not want

uninvited attention." In 2015, defendant moved to Florida, and J.D. moved to a

townhouse in Pennsylvania. Later, J.D. moved to a home he owned in Delaware.

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 Defendant asserted that for personal reasons which she did not want to

discuss, she "long ago decided that [she] do[es] not ever want to be married to"

J.D. She stated that she and J.D. "never moved in together and . . . never will."

Defendant asserted that at times, she and J.D. stopped seeing each other, but

acknowledged that they still are "in a relationship of sorts today." She stated

that she never cohabited with J.D., "much less for the nine months required to

terminate [her] alimony." She also stated that she and J.D. did not have a

relationship that is "tantamount to marriage in any regard."

Defendant acknowledged that her personal belongings can be seen in the

photographs of J.D.'s home, but stated:

While some items I own are seen in those pictures, it is
not because I have ever lived there. When I sold my
house in New Jersey, I had too many furnishings to fit
into my new condo in Florida. My kids were in no
position to take any of it and I was hoping that would
change in the near future. At that same time, [J.D.] was
moving to Delaware and he wanted to rent out the
townhouse as a furnished residence.

Defendant admitted that J.D. had loaned her $125,250. She claimed,

however, that J.D. loaned the monies to her so she could make a down payment

on a new condominium, because the proceeds from the sale of her New Jersey

home had been "held up." Defendant stated that she had repaid J.D. in full from

the proceeds of the sale of her house.

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 Defendant denied she and J.D. live together in their homes in the northeast

and Florida. She stated that she resides "full-time" in Florida, and J.D.

occasionally visits her there, when his work permits. She asserted that J.D. visits

his friends and family members who reside in Florida. She also stated that J.D.

"is a companion" and she enjoys spending time with him, "but we are not and

never will be in a marital-like relationship."

Plaintiff filed a reply certification. Plaintiff disputed defendant's

characterization of the ring, and again stated that defendant and J.D. had

purchased a home together. He noted that defendant had conceded the home

was filled with her personal belongings. He also asserted that in addition to the

mortgage loan, J.D. loaned defendant $2400.

Plaintiff again stated that the information he had submitted showed that

defendant and J.D. have traveled extensively together and have "combined" their

families. He claimed that friends, family, and children "widely recognize[]"

defendant and J.D. as a couple in a marriage-like relationship. He noted that in

certain Facebook posts, the parties' children and J.D.'s children refer to one

another as "siblings."

Plaintiff added that defendant had not provided any documentation

regarding her Florida residence. He stated that a public-records search listed the

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property as one of J.D.'s prior addresses. He pointed out that since the parties

finalized the MSA, he has paid defendant more than $1 million in alimony, and

he claimed that during that time, defendant had been cohabiting with J.D.,

without notifying him, as required by the MSA. He claimed defendant had

misrepresented her relationship with J.D. in an attempt to avoid the termination

of alimony.

The Family Part judge heard oral arguments on July 27, 2018, and later

filed an order denying plaintiff's motion in its entirety. In an accompanying

opinion, the judge stated:

The negotiated contract between the parties here is not
ambiguous. The terms are clear and will be given their
plain and ordinary meanings. The contract will be
enforced as written. In this case, it is clear that the
parties agreed that: (a) the plaintiff could not assert a
cohabitation claim unless the defendant resided with an
unrelated male for a period of at least nine months; and
(b) the defendant had an obligation to notify the
plaintiff as soon as she began to reside with an
unrelated male.

Based on this interpretation of the MSA, the judge found defendant had

never resided with an unrelated male and therefore, defendant did not violate the

notice provision of the MSA. The judge also found that plaintiff had not

established a prima facie case of cohabitation because his proofs did not suggest

defendant resided with J.D. "at all, much less for nine months."

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 The judge also denied both parties' applications for attorney's fees. The

judge examined the factors in Rule 5:3-5(c) and determined that neither party

should be awarded fees. However, the judge denied defendant's request without

prejudice, stating that defendant could renew the request "in the event she is

required to defend a similar application." This appeal followed.

II.

On appeal, plaintiff argues that the MSA only requires that defendant

engage in "cohabitation with an unrelated male in [a] relationship tantamount to

marriage." Plaintiff contends the trial court erred by interpreting the relevant

language of the MSA to require "a residence in common" and should have

enforced the MSA according to its terms.

We defer to the factual findings of the trial court when they are "supported

by adequate, substantial, credible evidence." Fattore v. Fattore, 458 N.J. Super.

75, 83 (App. Div. 2019) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12

(1998)). However, "[t]he trial judge's legal conclusions, and the application of

those conclusions to the facts, are subject to our plenary review. Our review of

a trial court's legal conclusions is always de novo.'" Id. at 84 (quoting Reese v.

Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)).

A-5604-17T1
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 "The basic contractual nature of matrimonial agreements has long been

recognized," Pacifico v. Pacifico, 190 N.J. 258, 265 (2007) (citing Harrington

v. Harrington, 281 N.J. Super. 39, 46 (App. Div. 1995)), and "judges [have]

greater discretion when interpreting such agreements." Sachau v. Sachau, 206

N.J. 1, 5 (2011) (quoting Guglielmo v. Guglielmo, 253 N.J. Super. 531, 542

(App. Div. 1992)). The goal of contract interpretation is to "discern and

implement the intention of the parties." Quinn v. Quinn, 225 N.J. 34, 45 (2016)

(citing Pacifico, 190 N.J. at 266).

A contract "must be read as a whole, without artificial emphasis on one

section, with a consequent disregard for others." Borough of Princeton v. Bd.

of Chosen Freeholders of Mercer, 333 N.J. Super. 310, 325 (App. Div. 2000).

In addition, a contract "should not be interpreted to render one of its terms

meaningless." Cumberland Cty. Improvement Auth. v. GSP Recycling Co., 358

N.J. Super. 484, 497 (App. Div. 2003). Furthermore, in New Jersey, parties to

an agreement "are . . . presumed to have contracted with reference to the existing

law." Ravin, Sarasohn, Cook, Baumgarten, Fisch & Rosen, PC v. Lowenstein

Sandler, PC, 365 N.J. Super. 241, 248 (App. Div. 2003) (alteration in original)

(quoting Silverstein v. Keane, 19 N.J. 1, 13 (1955)).

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 A marital agreement that provides for the termination of alimony on the

basis of cohabitation may be enforced if the agreement is "voluntary and

consensual, based on assurances that these undertakings are fully informed,

knowingly assumed, and fair and equitable." Konzelman v. Konzelman, 158

N.J. 185, 198 (1999) (citing Faherty v. Faherty, 97 N.J. 99, 107 (1984); Petersen

v. Petersen, 85 N.J. 638, 642 (1981)). To constitute cohabitation, the

relationship must "have stability, permanency and mutual interdependence." Id.

at 202. "A mere romantic, casual or social relationship is not sufficient." Ibid.

Moreover, "cohabitation is based on those factors that make the

relationship close and enduring and requires more than a common residence,

although that is an important factor." Ibid. Cohabitation also

involves an intimate relationship in which the couple
has undertaken duties and privileges that are commonly
associated with marriage. These can include, but are
not limited to, living together, intertwined finances
such as joint bank accounts, sharing living expenses
and household chores, and recognition of the
relationship in the couple's social and family circle.

[Ibid.]

Here, the trial court erred by interpreting the relevant provision of the

MSA to require that defendant reside with an unrelated adult for a period of nine

months. The MSA states in pertinent part that alimony may be terminated if

A-5604-17T1
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defendant engages in "cohabitation with an unrelated adult in a relationship

tantamount to marriage, for a period of nine months." (Emphasis added).

However, as the Court explained in Konzelman, cohabitation involves an

intimate relationship in which the parties "undertake[] duties and privileges

commonly associated with marriage[,]" and such duties and privileges can

include "living together," comingling of assets, sharing living expenses, and

recognition of the relationship by those in the coupe's families and social circle.

See ibid.

Thus, under Konzelman, in determining if a couple is engaged in a

marriage-like relationship, the fact that a couple lives together may be an

important consideration, but "living together" is only one factor to be

considered. See ibid. The court may find that the couple is in an intimate

relationship that is comparable to marriage, even though they live in separate

residences. See ibid.

The MSA at issue here does not state that the parties intended to deviate

from the understanding of the term "cohabitation" as set forth in Konzelman.

Significantly, the MSA does not expressly provide that in order to terminate

alimony on the basis of cohabitation, defendant must "reside" with an unrelated

male for a period of nine months.

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 Rather, the MSA states that alimony shall terminate upon defendant's

"cohabitation with an unrelated adult in a relationship tantamount to marriage,

for a period of nine months." As we have explained, joint residence may be a

factor in determining whether defendant has engaged in "cohabitation with an

unrelated adult," but it is not expressly required by the MSA. 2

In his decision, the Family Part judge interpreted the MSA to allow

termination of alimony only if defendant resides with an unrelated adult in a

marriage-like relationship for at least nine months. The judge based this

interpretation upon the provision of the MSA that requires defendant "to notify

[plaintiff] of the fact she is residing with an unrelated adult." The judge

reasoned that this provision of the MSA would have no meaning unless the MSA

provides for termination of alimony when defendant resides with an unrelated

adult in a marriage-like relationship for at least nine months.

2
We note that under N.J.S.A. 2A:34-23(n) 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 household." (Emphasis added). This
subsection of the statute was added in 2014, but it does not modify "prior
agreements executed or final orders filed before the adoption of the statutory
amendments." See Spangenberg v. Kolakowski, 442 N.J. Super. 529, 538 (App.
Div. 2015) (citing L. 2014, c. 42, § 2). The parties finalized the MSA in 2011.
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 We are convinced, however, that the relevant provision of the MSA only

requires defendant to notify plaintiff that she is residing with an unrelated adult.

Plaintiff is therefore on notice that plaintiff may be involved in a relationship

that constitutes "cohabitation," that is, a relationship that is "tantamount to

marriage."

The MSA does not state that defendant's relationship will only be

considered "cohabitation" if she resides with an unrelated adult for nine months

in a relationship tantamount to a marriage. Moreover, the MSA provides for

termination of alimony in the event of defendant's "cohabitation" with an

unrelated adult for a nine-month period, which may or may not involve "living

together."

III.

Plaintiff further argues that the he presented prima facie evidence of

cohabitation by defendant and J.D. He therefore argues that the trial court erred

by failing to schedule discovery and a plenary hearing.

A prima facie showing means "evidence that, if unrebutted, would sustain

a judgment in the proponent's favor." Baures v. Lewis, 167 N.J. 91, 118 (2001).

Once a party establishes a prima face case of cohabitation, the burden shifts to

the opposing party to demonstrate he or she is not cohabitating. See Ozolins v.

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Ozolins, 308 N.J. Super. 243, 248-49 (App. Div. 1998). If there are genuine

issues of material fact, the Family Part judge can order a plenary hearing to

resolve those issues. See id. at 248.

We are convinced that the Family Part judge erred by finding that plaintiff

did not present a prima facie case of cohabitation. As noted, under the relevant

provision of the MSA, plaintiff was not required to establish that defendant

resided with an unrelated adult for nine months. Rather, plaintiff had to present

evidence showing that defendant cohabited with an unrelated adult in a

relationship tantamount to marriage for a nine-month period. We are convinced

plaintiff presented sufficient evidence to establish a prima facie case of

cohabitation under this standard.

As we stated previously, plaintiff presented evidence showing that

defendant had a close, personal relationship with J.D. from some time in 2011

through 2018, which he claims is tantamount to a marriage. In her response to

plaintiff's motion, defendant conceded that J.D. provided her with a diamond

ring, and an inference could be drawn that this was an engagement ring or a gift

indicating a romantic relationship tantamount to a marriage.

In addition, plaintiff presented evidence that defendant and J.D. purchased

a home together in Newtown, Pennsylvania in 2015, and defendant's furniture

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and other personal belongings remained in the home in 2018. Plaintiff also

presented evidence that defendant and J.D. may have comingled their finances.

Defendant concedes that J.D. loaned her $125,250, which she used to

purchase her Florida residence. Defendant asserts, however, that she repaid the

loan in full, after she sold her home in New Jersey. Plaintiff also submitted

evidence showing that J.D. also loaned defendant $2400; evidence that the

parties often traveled together; and evidence that defendant's and J.D.'s children

had a close relationship and referred to each other as "siblings."

Plaintiff claims the evidence shows that defendant and J.D. have

combined their families, and friends and family members view defendant's

relationship with J.D. as one that is like a marriage. This evidence also may

support the conclusion that defendant and J.D. have been engaged in a

relationship that is tantamount to a marriage for more than nine months.

As noted previously, defendant has disputed plaintiff's allegation that she

and J.D. have resided together. She admits that she had a relationship of sorts

with J.D., but asserts that they are not in a relationship tantamount to a marriage.

She also denies that she and J.D. have comingled finances or intermingled their

families. However, as plaintiff notes, defendant has other information that may

be relevant to his cohabitation claim, and plaintiff was not afforded the

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opportunity for discovery. See Rose v. Csapo, 359 N.J. Super. 53, 61-62 (Ch.

Div. 2002) (noting that cohabiting party and paramour have the financial and

personal information necessary for the court to make a finding of cohabitation).

We therefore conclude plaintiff has presented sufficient evidence to

establish a prima facie case of cohabitation, which may warrant termination of

alimony pursuant to the MSA. We therefore remand the matter to the Family

Part for further proceedings on plaintiff's motion to terminate alimony on the

basis of cohabitation.

On remand, the court shall afford the parties an opportunity for discovery.

In addition, if there are genuine issues of material fact, the court shall conduct a

plenary hearing and thereafter make the necessary findings of fact and

conclusions of law.

IV.

Plaintiff further argues that the trial court erred by denying his motion for

an award of attorney's fees. Plaintiff contends the court should have reserved a

decision on his application for attorney's fees until after the parties had been

afforded the opportunity for discovery, and the court has conducted a plenary

hearing on his motion. Since we have determined that the matter must be

remanded for further proceedings, we need not address these arguments.

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Plaintiff can renew his motion for an award of counsel fees after the completion

of the remand proceedings.

V.

Plaintiff also argues that if the matter is remanded, the court should direct

that the remand proceedings be handled by another judge. Plaintiff asserts tha t

the judge who decided his motion may be committed to his factual findings. He

also asserts reassignment to another judge may be warranted to avoid the

appearance of bias based on the judge's prior involvement and statements

regarding the parties.

"[W]e have the authority to direct that a case be assigned to a new judge

upon remand." Graziano v. Grant, 326 N.J. Super. 328, 349 (App. Div. 1999)

(citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 617 (1986)).

However, this "authority should be sparingly exercised." Id. at 350.

The power to remand to a different judge "may be exercised when there is

a concern that the trial judge has a potential commitment to his or her prior

findings." Id. at 349 (citing A.W., 103 N.J. at 617). Furthermore, "[t]he mere

fact that a judge has issued legal rulings or made factual findings in a case does

not warrant reassignment in the event of reversal and remand." Brown v. Brown,

348 N.J. Super. 466, 493 (App. Div. 2002).

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 Based on the record before us, we see no reason to direct that the case be

assigned to a different judge on remand. Here, the judge interpreted the relevant

provision of the MSA and decided that plaintiff had not presented sufficient

evidence to establish a prima facie case of cohabitation in light of that

interpretation. However, the judge made no statements or findings, which

suggest he is so committed to his earlier decision that he would not be able to

conduct the remand proceedings fairly and impartially.

Reversed and remanded to the trial court for further proceedings in

conformance with this opinion. We do not retain jurisdiction.

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