Melletz v. Melletz

• Decision Date: 15 March 1994
• Citation: 271 N.J.Super. 359,638 A.2d 898
• Parties: Paul R. MELLETZ, Plaintiff-Appellant, v. Elsa W. MELLETZ, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 359

271 N.J.Super. 359

638 A.2d 898

Paul R. MELLETZ, Plaintiff-Appellant, v. Elsa W. MELLETZ, Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Argued Jan. 19, 1994.

Decided March 15, 1994.

Steven B. Sacharow argued the cause for appellant (Sacharow, Adler, Gold, Taylor & Keyser, attorneys; Mr. Sacharow on the letter brief and Barbara J. Snavely, on the brief).

Gary L. Borger argued the cause for respondent (Lisa L. Ulrich, on the brief).

Before Judges PRESSLER, DREIER and BROCHIN.

The opinion of the court was delivered by

DREIER, J.A.D.

Plaintiff appeals from a post-judgment matrimonial order, entered after a plenary hearing, denying his motion to suspend alimony payments because of defendant's alleged cohabitation with a male friend. Judge Grasso determined that the cohabitation clause in the parties' settlement agreement was unfair, inequitable and unenforceable, and thus refused to suspend plaintiff's alimony obligation. However, as the clause was a material aspect of the settlement agreement, the judge decided that the agreement could now be renegotiated if plaintiff so desired.

The parties were divorced on November 13, 1991, and negotiated a settlement agreement which was incorporated into the final judgment of divorce. Under the agreement, defendant was to receive alimony in the amount of $400 a week, but the alimony payments would terminate upon the death of either party or upon defendant's remarriage, and would be suspended for any period during which defendant cohabited with an unrelated male. The cohabitation provisions read as follows:

Husband's alimony obligation shall be suspended during the period of cohabitation if the wife cohabits with a male unrelated to her by blood or marriage. Cohabitation for the purposes of this agreement, shall be defined as the wife and the unrelated male (hereinafter "male") generally residing together in a common residence, or residences where they generally engage in some, but not necessarily all, of the following:

(a) Meals taken together at the residence(s);

(b) Departing from and returning to the residence of the other for employment and/or social purposes;

(c) Maintaining clothing at the other's residence;

(d) Sleeping together at the residence or the residence of the other;

(e) Receiving telephone calls at the residence or the residence of the other.

The occurrence of any of the following shall not defeat cohabitation as the parties have defined that term herein:

(a) Temporary interruptions of the relationship shall not defeat a claim of cohabitation;

(b) Alternating of residences;

(c) Maintenance of a separate residence by the male.

The parties have expressly agreed that the purpose of this provision was specifically negotiated for, and represents the end product of, a bargained for agreement. Specifically, the parties intend that the economic contribution component of Gayet shall not be applicable and the mere cohabitation, as defined herein, shall be the basis for suspension of the husband's alimony obligation.

Wife represents that she is not currently cohabiting and if that representation is false, the husband shall have the right to reimbursement of alimony paid during cohabitation. In the future, if it is determined that wife is cohabiting, any relief would be retroactive to the date cohabitation commenced.

Since the judge found the provisions unenforceable, he made no factual determination whether the parties were cohabiting under the standards of the agreement.

At the November 13, 1991 hearing on the divorce, the parties were questioned regarding the settlement agreement. Defendant testified that she had gone through each of the terms of the agreement with her attorney, that she understood the terms, that she was entering into the agreement voluntarily and that she accepted the terms of the agreement as fair and equitable. The judge subsequently determined that the agreement had been entered into voluntarily and that it was "believed to be fair and equitable under all the circumstances of this case with both parties being represented by counsel." The judge, however, made no finding as to the reasonableness of the agreement.

On October 11, 1991, over a month prior to the divorce, plaintiff, his then-fiancee (now his wife) and one of her friends began surveilling defendant's condominium unit. Eventually, plaintiff also hired two private investigation firms to watch defendant. Plaintiff was thus aware of defendant's relationship with a male friend, Mr. "C," prior to the November 13, 1991 negotiation. In fact, at the plenary hearing, plaintiff testified that the cohabitation clause was designed "to stop what [was] going on." Defendant testified that she was aware of the allegations of her cohabitation at the time of the agreement, but that she did not contemplate that her relationship constituted cohabitation under the agreement. We note parenthetically that plaintiff has lived with his present wife since shortly after separating from defendant in March of 1989.

It is undisputed that defendant and her friend had a relationship. The trial judge found the following:

During this period [August 30, 1991 through November 1991], the defendant-wife maintained a social or dating relationship with an individual identified as [Mr. C.]. At all times material, the defendant-wife and [the friend] maintained separate residences but socialized and dated by engaging in such activities as shopping, going out to restaurants, eating meals at the residence of the other and remaining over night with each other. The defendant-wife, during her testimony recalled at least ten overnight stays by [the friend] at [defendant's] new condominium in Mount Laurel, New Jersey. Both the defendant-wife and [the friend], during their testimony, described their relationship as "just dating" and as a warm friendship.

Plaintiff maintains that defendant and her friend were "cohabiting" as that term is defined in the settlement agreement.

As noted in a different setting in Aronson v. Aronson, 245 N.J.Super. 354, 364, 585 A.2d 956 (App.Div.1991):

Alimony is neither a punishment for the payor nor a reward for the payee. Nor should it be a windfall for any party. It is a right arising out of the marriage relationship to continue to live according to the economic standard established during the marriage as far as economic circumstances will allow.

In New Jersey, the test for determining whether cohabitation by the dependent spouse should reduce an alimony award has always been based on a theory of economic contribution. In Gayet v. Gayet, 92 N.J. 149, 150, 456 A.2d 102 (1983), the Supreme Court definitively ruled that the test for modification of an alimony award in a cohabitation case was "whether the relationship has reduced the financial needs of the dependent former spouse." The Court found that a supporting spouse is entitled to a modification "only if one cohabitant supports or subsidizes the other under circumstances sufficient to entitle the supporting spouse to relief." Id. at 153-54, 456 A.2d 102. See also Pugh v. Pugh, 216 N.J.Super. 421, 524 A.2d 410 (App.Div.1987); Wertlake v. Wertlake, 137 N.J.Super. 476, 349 A.2d 552 (App.Div.1975); Garlinger v. Garlinger, 137 N.J.Super. 56, 347 A.2d 799 (App.Div.1975); Eames v. Eames, 153 N.J.Super. 99, 379 A.2d 67 (Ch.Div.1976); Grossman v. Grossman, 128 N.J.Super. 193, 319 A.2d 508 (Ch.Div.1974); Edelman v. Edelman, 124 N.J.Super. 198, 305 A.2d 804 (Ch.Div.1973); and Suozzo v. Suozzo, 16 N.J.Misc. 475, 1 A.2d 930 (Ch.1938). This has been the law for at least fifty-five years. The Court in Suozzo stated

that as a matter of law, if not logically, unchastity of a former wife is not a defense to her right to alimony after absolute divorce, nor justification for retracting an award previously made to her under our statute. It is, at most, a factor that in a proper case may be considered as bearing upon the amount of, and the necessity for the allowance.

Id. at 477, 1 A.2d 930.

More recently in Pugh v. Pugh, supra, we were confronted with a property settlement agreement in which the parties agreed that the defendant-wife would have to sell the marital home in the event she lived there with an unrelated male. Plaintiff-husband subsequently tried to compel a sale of the home based on defendant's alleged cohabitation. Defendant admitted that "a non-related adult male" spent three weekends a month and at least one day a week at the home. We held, however, that this did not constitute cohabitation. In making this determination, we again focused on the economic impact of the relationship:

[T]he agreement should be regarded as having principally an economic purpose, that is, to assure that plaintiff's interest in the former marital home is not used to subsidize defendant's relationship with a male cohabitant.

Pugh, supra, 216 N.J.Super. at 425, 524 A.2d 410.

Thus we were able to rely upon contractual interpretation, and were not faced with the question of whether parties could vary the parameters of the economic contribution rule by contract. We stated:

We are disinclined to apply the contract language in a way which conflicts with our stated public policy to guarantee individual privacy, autonomy, and the right to develop personal relationships.

Id. (citing Gayet, supra, 92 N.J. at 151, 456 A.2d 102).

In the case before us the parties recognized the rule in Gayet, and, specifically citing it, stated in so many words that they wished to reject it. ("Specifically, the parties intend that the economic contribution component of Gayet shall not be applicable and the mere cohabitation, as defined herein, shall be the basis for suspension of the husband's alimony obligation".) Under the agreement, plaintiff is entitled to suspend his payment of alimony if defendant cohabits, regardless of the economic impact of such cohabitation. ¹

We faced a similar issue in Morris v. Morris, 263 N.J.Super. 237, 622...