Pugh v. Pugh

• Decision Date: 26 January 1987
• Citation: 216 N.J.Super. 421,524 A.2d 410
• Parties: Randolph S. PUGH, Plaintiff-Respondent, v. Kathy PUGH, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 421

216 N.J.Super. 421

524 A.2d 410

Randolph S. PUGH, Plaintiff-Respondent, v. Kathy PUGH, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Jan. 6, 1987.

Decided Jan. 26, 1987.

Ann Bernice Segal, P.A., for defendant-appellant. (Cheryl A. Bukala, on the brief).

No appearance on behalf of plaintiff-respondent.

Before Judges PRESSLER, GAULKIN and BAIME.

The opinion of the court was delivered by

GAULKIN, J.A.D.

Plaintiff and defendant entered into a property settlement agreement, thereafter incorporated into a divorce judgment, which provides:

19. The defendant shall have exclusive possession of the marital home. The said marital home shall be sold upon the occurrence of one of the following events, whichever event shall first occur:

a. The minor child, Stephen B. Pugh, graduates high school;

b. The defendant remarries;

c. The defendant lives with a non-related adult male.

Seventeen months after the divorce, plaintiff moved to sell the marital home on the ground that defendant was then living with "a non-related adult male." Following a plenary hearing, the motion judge found "that there is a living together within the meaning of the property settlement agreement" and that plaintiff "is entitled to insist upon the sale of the former marital home." Defendant appeals from the order thereupon entered.

We have no difficulty in accepting the motion judge's findings of operative fact. He found that plaintiff had observed one or both of Gerald Parker's two vehicles at the marital home "whenever he has gone past the house or when he has picked up the children for visitation, be it late at night or early in the morning." Parker was also observed performing chores around the house, such as cutting the grass, and was seen late at night unloading band equipment from defendant's van.

Defendant acknowledged that Parker spends three out of four weekends of the month with her, usually bringing his daughter with him; she also said that on occasion Parker brings a change of clothing. The motion judge further found that Parker has his meals with defendant and her family when he is at the house and that he "showers at the home and also shaves at the home during the weekends that he is there." The proofs showed that "despite the fact that [Parker] eats his meals there and has the use of the facilities at least three nights--two or three nights a week, that other than having purchased the riding mower, he makes no other contributions."

The judge also reported his interview of the parties' son Stephen, then 14 years old. Stephen told the judge that "there was some clothes there, not much," that Parker "stays there nearly each weekend" and that he also "stays there on other occasions, as much as one night a week." While Parker would occasionally "miss that one night a week," there were other weeks "when he would be there for a longer period than one night."

Based upon those proofs, the judge concluded that Parker "is there more than three weekends a month," that "there are occasions during the week when he is there as well and that "there is more than a casual relationship here."

While those factual findings are amply supported by the record, we are satisfied that they do not warrant the conclusion that defendant "lives with a non-related adult male" within the meaning of the property settlement agreement. To be sure, defendant and Parker spend substantial time together at the former marital home and it can be assumed that they enjoy a sexual relationship. But they are not continuously together, nor do they hold themselves out or conduct themselves as husband and wife. They have not established a single economic or domestic unit. Parker maintains a separate residence where he spends significant time and where he maintains custody of his own minor child. He keeps most of his clothing at his own residence. There is no suggestion that either defendant or Parker has assumed a parental role or responsibility with respect to the other's children. Excepting for the fact that Parker does some household chores and eats meals with defendant when he stays with her, there is no evidence that either he or defendant is financially contributing to or benefitting from the other. All of those facts point strongly toward a conclusion that defendant is not "living with" Parker. See, e.g., Beck v. Beck, 286 Ala. 692, 246 So.2d 420, 428 (1971); Littlefield v. Littlefield, 292 A.2d 204, 211 n. 3 (Me.1972); Brown v. Brown, 122 Misc.2d 849, 472 N.Y.S.2d 550 (1984); Taylor v. Taylor, 11 Ohio App.3d 279, 465 N.E.2d 476, 477-478 (1983); Fuller v. Fuller, 10 Ohio App.3d 253, 461 N.E.2d 1348 (1983); In re Marriage of Vasconcellos, 58 Or.App. 390, 648 P.2d 1358 (1982); In re Marriage of...