NOT FOR PUBLICATION WITHOUT THE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-3279-18T3
CAROLYN SMITH-BARRETT,
Plaintiff-Appellant,
v.
MICHAEL SNYDER,
Defendant-Respondent.
___________________________
Argued January 15, 2020 – Decided February 5, 2020
Before Judges Koblitz, Whipple and Mawla.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hunterdon County,
Docket No. FM-10-0329-06.
Diana N. Fredericks argued the cause for appellant
(Gebhardt & Kiefer, PC, attorneys; Diana N.
Fredericks, on the briefs).
Franklin G. Whittlesey argued the cause for respondent
(Scholl & Whittlesey, LLC, attorneys; Franklin G.
Whittlesey, on the brief).
PER CURIAM
Plaintiff Carolyn Smith-Barrett appeals from the March 19, 2019 order
denying her application to terminate her alimony to her former husband,
defendant Michael Snyder, based on his cohabitation. We agree that plaintiff
presented insufficient evidence of cohabitation to require further discovery at
that time and affirm.
I. Factual background.
The parties were married on August 31, 1986 and have two emancipated
children. A final judgment of divorce with a Property Settlement Agreement
(Agreement) was entered on November 13, 2007.
Based upon defendant's lack of income, the Agreement provided that
plaintiff would pay defendant alimony of thirty percent of plaintiff's gross
annual base salary, with the applicable salary capped at $230,000 annually.
Defendant's current alimony award was $2280 biweekly based on plaintiff's
current salary of $197,600. The Agreement also required plaintiff to pay
additional alimony of twenty percent of her total gross annual bonus, with the
additional alimony capped at $15,000 per annum.
Three provisions in the Agreement are relevant to plaintiff's appeal of the
denial of her motion to terminate alimony. Paragraph 9 states:
[Plaintiff's] obligation to pay alimony to [defendant]
shall terminate upon the earliest occurrence of any one
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2
or more of the following events: . . . (3) remarriage of
[defendant]; or (4) cohabitation of [defendant] with an
unrelated female. Termination based upon one of the
foregoing events shall be effective on the date of the
event or occurrence. [Defendant] shall have an
affirmative obligation to advise [plaintiff] of his
remarriage or cohabitation within seven (7) days of the
event.
Paragraph 55 provides that "[i]n the event of any dispute arising out of
this Agreement or the performance thereof, [defendant] and [plaintiff] agree that
all attempts should be made between them to settle the dispute by [a]greement
before using the courts for any determination." Paragraph 56 states that
"[s]hould either [defendant] or [plaintiff] fail to abide by the terms of this
Agreement, the defaulting party will indemnify the other for all other reasonable
expenses and costs, including attorneys fees incurred in successfully enforcing
this Agreement."
On June 25, 2018, plaintiff hired a private investigator to determine
whether defendant was cohabiting with K.R.1 After receiving a report from the
investigator detailing instances where K.R.'s vehicle was found parked at
defendant's home, as well as collecting Facebook posts showing that defendant
and K.R. were romantically involved, plaintiff's attorney sent two letters to
1
We refer to K.R. by her initials to protect her privacy.
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3
defendant informing him she was seeking to terminate her alimony obligation
based on evidence of cohabitation. Although defendant's attorney responded by
calling plaintiff's attorney, defendant did not reply in writing.
In a written decision, the court denied both plaintiff's motion to terminate
alimony and her counsel fee request. The court rejected plaintiff's assertion that
defendant was cohabiting with K.R., finding plaintiff only provided evidence
that defendant was in a romantic relationship with K.R. Citing to Konzelman v.
Konzelman, 158 N.J. 185, 202 (1999), the court stated that "[c]ohabitation
involves an intimate relationship in which the couple has undertaken duties and
privileges that are commonly associated with marriage." Social media postings
of defendant and K.R. celebrating holidays and taking vacations together
"fail[ed] to show that the couple ha[d] undertaken duties and privileges that are
commonly associated with marriage." The court found that "plaintiff fail[ed] to
provide any other evidence showing cohabitation, such as, the couple living
together, intertwined finances, sharing living expenses and household chores."
Plaintiff provided the court with a certification from her private
investigator detailing the number of times K.R.'s car was parked outside
defendant's home, which the court found to be "insufficient to present even a
question of fact concerning cohabitation." The court concluded that defendant
A-3279-18T3
4
and K.R. "appear[ed] to maintain separate homes, no evidence of intertwined
finances [was] adduced, nor [was] there any evidence of the couple holding
themselves out in a relationship tantamount to marriage." It characterized the
relationship as a "committed dating relationship" with overnights at each other's
residences at times, which did not "rise to the level of cohabitation."
The court focused its analysis of the fee issue on plaintiff's argument that
defendant violated the terms of the Agreement. The court acknowledged that
plaintiff attempted to resolve the issues before filing a motion, but ultimately
concluded that because plaintiff failed to provide evidence of cohabitation, "no
genuine issue to mediate" existed, and plaintiff was therefore not owed counsel
fees.
II. Standard of Review.
A trial judge has "broad discretion" in reviewing an application to modify
alimony. Storey v. Storey, 373 N.J. Super. 464, 470 (App. Div. 2004) (citing
N.J.S.A. 2A:34-23). The decision of a family court to modify alimony is
reviewed under an abuse of discretion standard. Larbig v. Larbig, 384 N.J.
Super. 17, 23 (App. Div. 2006). "Whether an alimony obligation should be
modified based upon a claim of changed circumstances rests within the Family
A-3279-18T3
5
Part judge's sound discretion." Id. at 21 (citing Innes v. Innes, 117 N.J. 496, 504
(1990)).
Cohabitation by a dependent ex-spouse constitutes a changed
circumstance that could justify a modification of the supporting ex-spouse's
alimony obligation. Gayet v. Gayet, 92 N.J. 149, 154–55 (1983). In Landau v.
Landau, 461 N.J. Super. 107 (App. Div. 2019), we recently held that "the
changed circumstances standard of Lepis v. Lepis, 83 N.J. 139, 157 (1980),
continues to apply to a motion to suspend or terminate alimony based on
cohabitation following the 2014 amendments to the alimony statute, N.J.S.A.
2A:34-23(n)." Landau, 461 N.J. Super. at 108. Those amendments defined
cohabitation as "involv[ing] a mutually supportive, intimate personal
relationship in which a couple has undertaken duties and privileges that are
commonly associated with marriage or civil union but does not necessarily
maintain a single common household." N.J.S.A. 2A:34-23(n). Under the
statute, "[a] court may not find an absence of cohabitation solely on grounds that
the couple does not live together on a full-time basis." Ibid.
Instead, courts "shall consider" the following factors "[w]hen assessing
whether cohabitation is occurring[:]"
(1) Intertwined finances such as joint bank accounts
and other joint holdings or liabilities;
A-3279-18T3
6
(2) Sharing or joint responsibility for living expenses;
(3) Recognition of the relationship in the couple's social
and family circle;
(4) Living together, the frequency of contact, the
duration of the relationship, and other indicia of a
mutually supportive intimate personal relationship;
(5) Sharing household chores;
(6) Whether the recipient of alimony has received an
enforceable promise of support from another person
. . . ; and
(7) All other relevant evidence.
[Ibid.]
After carefully reviewing the amendments, "we [saw] no indication the
Legislature evinced any intention to alter the Lepis changed circumstances
paradigm when it defined cohabitation and enumerated the factors a court is to
consider in determining 'whether cohabitation is occurring' . . . ." Landau, 461
N.J. Super. at 116 (quoting N.J.S.A. 2A:34-23(n)). We determined the party
seeking modification still bears the burden of establishing "[a] prima facie
showing of changed circumstances . . . before a court will order discovery of an
ex-spouse's financial status." Id. at 118 (alteration in original) (quoting Lepis,
83 N.J. at 157).
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In Gayet, our Supreme Court held that cohabitation of the dependent
former spouse constitutes a change of circumstances justifying the reduction or
termination of alimony only if the economic benefit inuring to either cohabitor
is "sufficiently material to justify relief." Konzelman, 158 N.J. at 196 (citing
Gayet, 92 N.J. at 154–55). "Under this economic needs test, the reduction in
alimony is granted in proportion to the contribution of the cohabitor to the
dependent spouse's needs." Ibid. (citing Gayet, 92 N.J. at 154–55).
An agreement to terminate alimony based upon a dependent spouse's
cohabitation is "enforceable so long as the relationship constitutes cohabitation
and 'the cohabitation provision of the [PSA] was voluntary, knowing and
consensual.'" Ibid. (citing Konzelman, 158 N.J. at 203).
In determining whether a dependent ex-spouse's relationship rises to the
level of cohabitation, our Supreme Court stated:
Cohabitation 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.
[Konzelman, 158 N.J. at 202.]
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Cohabitation requires "stability, permanency and mutual
interdependence." Ibid. The court must determine whether the relationship
"bears the 'generic character of a family unit as a relatively permanent
household.'" Gayet, 92 N.J. at 155 (citing State v. Baker, 81 N.J. 99, 108
(1979)). "A mere romantic, casual or social relationship is not sufficient to
justify the enforcement of a settlement agreement provision terminatin g
alimony." Konzelman, 158 N.J. at 202.
A party seeking modification of an alimony agreement based on
cohabitation must first establish a prima facie case of cohabitation before a court
orders discovery and a plenary hearing. Lepis, 83 N.J. at 157, 159. "[A] party
must clearly demonstrate the existence of a genuine issue as to a material fact
before a hearing is necessary." Id. at 159 (citing Shaw v. Shaw, 138 N.J. Super.
436, 440 (App. Div. 1976)). "In determining whether a material fact is in
dispute, a court should rely on the supporting documents and affidavits of the
parties. Conclusory allegations would, of course, be disregarded." Ibid.
III. Cohabitation.
Plaintiff argues that the trial court failed to address the "substantial and
authenticated proofs provided in support of [her] motion." She maintains that
"even if there were a dispute as to the financial issues between [defendant and
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9
K.R.], that is a basis under which discovery must have been ordered." She
argues that because the parties have been divorced for thirteen years, she is
entitled to discovery and a plenary hearing to access the financial information
needed to prove her allegations that defendant is cohabiting with K.R.
In support of her argument that defendant is cohabiting with K.R., plaintiff
offers evidence in the form of social media postings on Facebook indicating that
defendant and K.R. spent holidays, social events, and vacations together.
Plaintiff argues that the two of them spending time together in an intimate
relationship "reflects stability and permanency," and "bear[s] the general
character of a family unit."
She offers the following social media posts: defendant traveled to Aruba
in November 2015; defendant updated his Facebook cover photo to a picture of
himself and K.R. on November 20, 2016; both K.R. and defendant changed their
Facebook statuses to "in a relationship" on November 22, 2016; K.R. changed
her profile picture to the two of them in November and December 2016 wishing
followers a "Happy Thanksgiving" and "Merry Christmas"; defendant shared a
picture of the two of them in front of a Christmas tree on November 30, 2016;
defendant updated his cover photo to a picture of K.R. on May 9, 2017;
defendant updated his profile picture to a picture of the two of them on May 30,
A-3279-18T3
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September 17, October 12 and October 14, 2017; defendant changed his profile
picture to one of the two of them in front of a Christmas tree on December 26,
2017; defendant changed his profile picture to a new picture of the two of them
on July 4 and July 31, 2018; defendant posted a beach picture of himself with
K.R. on October 22, 2018, and left comments indicating that the two were in
Aruba together; and defendant updated his profile once more on November 19,
2018, with a photograph of the two of them.
Plaintiff also hired a private investigator to investigate defendant and K.R.
beginning on June 25, 2018. His report indicated that he "conducted activity
checks between July 12 and July 28, 2018, and suspended further activity checks
at the homes due to unusually low or lack [of] activity" at both defendant's and
K.R.'s homes. The report indicated that K.R.'s car was parked outside of
defendant's home on the following dates: September 9, 2018; September 10,
2018; October 28 to October 31, 2018; November 1 to November 3, 2018;
November 5 to November 12, 2018; and November 17, 2018. The report did
not indicate that the investigator saw defendant or K.R. enter or exit each other's
home and did not provide evidence of any daily activities conducted together.
Defendant provided a certification and case information statement
detailing his financial circumstances. In defendant's certification, he stated that
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11
his "friendship" with K.R. "has not risen to the level of a marriage-like
relationship" and they have "no plans for marriage in the immediate future. " In
response to the social media postings offered by plaintiff, defendant stated that
"[w]hile we have taken [two] vacations together and shared some holidays over
the past [two] years, there has been no cohabitation." Defendant responded to
the private investigator's report by explaining that K.R.'s car was parked at his
house on occasions when he borrowed her car because his was inoperable.
Defendant also certified that: he and K.R. maintain separate households; they
have not been seeing each other for more than two years; they do not share any
property, bank accounts or expenses; they each paid for their own expenses
when they went on vacation together; they do not share in any joint living
expenses or responsibilities; they do not have any children together; and "neither
of [them] ha[ve] pledged to support the other." As the family court judge found,
the social media postings only show that defendant and K.R. are involved in an
intimate, dating relationship, not that they are cohabiting.
Plaintiff's investigator reported seeing K.R.'s car parked outside of
defendant's home on less than twenty days between July and November 2018.
Unlike the investigator in Konzelman, plaintiff's investigator did not observe
activities such as defendant or K.R. exiting each other's homes in the morning,
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entering the homes through a garage door or by key access, or engaging in any
household chores, such as yardwork or taking out the garbage. See Konzelman,
158 N.J. at 191–92. The trial court properly concluded that plaintiff's evidence
from the private investigator was "insufficient to present even a question of fact
concerning cohabitation."
Plaintiff must first establish a prima facie case of cohabitation before a
court will order discovery and a plenary hearing. Lepis, 83 N.J. at 157. In order
to establish a prima facie case of cohabitation, plaintiff must provide evidence
that her dependent ex-spouse and an unrelated female have "undertaken duties
and privileges that are commonly associated with marriage," including "living
together, intertwined finances such as joint bank accounts, sharing livin g
expenses and household chores, and recognition of the relationship in the
couple's social and family circle." Konzelman, 158 N.J. at 202. Plaintiff relies
primarily on Facebook posts indicating that defendant and K.R. are in a dating
relationship. This is not enough to establish a prima facie case of cohabitation.
See Landau, 461 N.J. Super. at 118.
Our Supreme Court recently stated:
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
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stays in the home of one or the other, rises to the level
of cohabitation. We agree that this level of control over
a former spouse would be unwarranted.
[Quinn v. Quinn, 225 N.J. 34, 54 (2016).]
IV. Counsel fees.
In denying her request for attorney fees, plaintiff argues that the "trial
court failed to make any specific findings of fact and conclusions of law" with
respect to the factors set forth under Rule 5:3-5(c) to determine the amount of
counsel fees. Those factors, however, are for the purpose of determining the
amount of counsel fees owed after a judge finds that the award of counsel fees
is appropriate.
Plaintiff's claim for counsel fees is based on defendant's failure to disclose
his cohabitation and lack of response to plaintiff's attempt to settle the issues out
of court as required by the Agreement. The trial court reviewed this claim and
properly concluded that because plaintiff had inadequate proof of cohabitation,
"there was no genuine issue to mediate." Since defendant did not violate the
Agreement, the denial of plaintiff's request for an award of counsel fees and
costs was proper.
Affirmed.
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