SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0408-20

JUSTIN MANLEY,

Plaintiff-Appellant,

v.

SUZANNE MANLEY,

Defendant-Respondent.

___________________________

Submitted January 5, 2022 – Decided January 14, 2022

Before Judges Rothstadt and Mayer.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Middlesex County,

No. FM-12-0999-17.

Arndt & Sutak, LLC, attorneys for appellant (Lauren A. 

Miceli, on the briefs). 

Rozin Golinder Law, LLC, attorneys for respondent 

(Alyssa A. Bartholomew, on the brief). 

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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In this post-judgment matrimonial matter, plaintiff Justin Manley appeals 

from a September 18, 2020 order granting a reconsideration motion filed by 

defendant Suzanne Manley. The judge reconsidered an April 3, 2020 order 

granting plaintiff's motion for discovery to determine whether plaintiff was 

entitled to modify or terminate alimony based on defendant's claimed 

cohabitation. On reconsideration, the judge concluded plaintiff failed to 

establish a prima facie showing of cohabitation and vacated the April 3, 2020 

order allowing discovery. We affirm.

Plaintiff and defendant divorced in 2016. As part of their final judgment 

of divorce, the parties executed a Marital Settlement Agreement (MSA), 

obligating plaintiff's payment of alimony to defendant. The MSA provided 

plaintiff's alimony obligation

shall irrevocably terminate upon . . . [defendant]'s 

cohabitation with someone in the manner of Husband 

and Wife for a three (3) month period, regardless of the 

amount of financial contribution by the other party. 

[Defendant] has an express duty to inform [plaintiff] 

when she is cohabitating; if she fails to do so, all 

alimony paid during the period of cohabitation shall be 

refunded retroactively . . . . 

Because plaintiff believed defendant was cohabitating, he hired a private 

investigator. In 2020, based on the investigator's findings, plaintiff filed a 
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motion to terminate alimony, alleging defendant was cohabitating with Sam.1 

Plaintiff included a written report and photographs from the investigator in 

support of his motion.2 The report stated, "evidence was obtained . . . 

support[ing] the allegations that [Sam] and [defendant] are involved in an 

intimate, mutually beneficial, family relationship." 

Defendant opposed plaintiff's motion. In her certification, she admitted 

dating Sam but denied the two were cohabitating. According to defendant, she 

did "not live under the same roof" as Sam and they "maintained completely 

different households." She further certified they did not "intertwine[] [their] 

finances." While defendant acknowledged Sam moved to the same town where 

she maintains her home, defendant claimed he did so for reasons related to his 

own family situation. 

In an April 3, 2020 order, the motion judge granted plaintiff's motion in 

part. The judge declined to alter plaintiff's alimony obligation but ordered the 

parties to exchange discovery. The order provided, "[u]pon completion of such 

discovery period, [p]laintiff may submit appropriate papers and proofs 

1

 We refer to the claimed cohabitant by a pseudonym to protect his privacy.

2

 No certification or affidavit from the investigator accompanied the report. 
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addressing whether a change in circumstances has occurred to warrant a 

modification and/or termination of [p]laintiff's alimony obligation."

Defendant moved for reconsideration, seeking to preclude discovery 

because plaintiff failed to establish a prima facie case of cohabitation. Plaintiff 

submitted opposition. 

In seeking to establish defendant and Sam were cohabitating, plaintiff 

provided evidence of defendant's use of Sam's wholesale club card and country 

club membership card. Plaintiff also submitted photographs of defendant 

bringing groceries to Sam's home. Additionally, plaintiff provided Facebook 

postings showing defendant and their children travelling with Sam and his 

daughter, as well as photographs of Sam attending sporting events for plaintiff's 

children. Plaintiff also certified that defendant brought Sam to family reunions

and other family events.

Defendant admitted to using Sam's wholesale club card but explained she 

reimbursed Sam for the expenses attributable to her use of the card. She also 

responded to her use of Sam's country club privileges, indicating she attended 

club activities solely as Sam's guest. While defendant and Sam assisted each 

other in carrying groceries, defendant certified each paid for their own groceries. 

Regarding attendance at the children's sporting events, defendant explained Sam 
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attended ten hockey games over three years. Concerning traveling with Sam, 

defendant claimed they travelled "like a couple in a dating relationship" with 

each person paying his and her own travel expenses. 

Defendant's family and friends recognize her relationship with Sam as a 

dating relationship and the pair's social media presence depicted a typical adult 

dating relationship. Defendant acknowledged being in a romantic relationship 

with Sam since 2016. According to defendant, while Sam spent some nights at 

her house, he never stayed overnight during defendant's parenting time with her 

children. Defendant further explained she and Sam do not have keys to the 

other's home

After reviewing the parties' submissions, the judge found plaintiff 

established only two out of the seven factors under the cohabitation statute, 

N.J.S.A. 2A:34-23(n). The judge concluded there was no evidence "of 

intertwined finances, joint living expenses, sharing of household chores, or an 

enforceable promise of support." However, the judge found plaintiff presented 

"a showing of recognition of the relationship [between defendant and Sam] as 

well as frequent contact." Although the investigator's report lacked the required 

attestation, the judge considered the information and photographs contained in 

that report in deciding the motions.
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In a September 18, 2020 order, the judge granted defendant's 

reconsideration motion. He concluded plaintiff failed to establish a prima facie 

case of cohabitation. Thus, the judge determined plaintiff was not entitled to 

discovery and vacated his April 23, 2020 order. 

On appeal, plaintiff argues the judge erred in finding he failed to present 

evidence establishing a prima facie case of cohabitation and disallowing 

discovery to address his request to terminate alimony under the MSA. We 

disagree.

Our review of a trial court's decision to modify or terminate alimony is 

limited. "[E]very motion to modify an alimony obligation 'rests upon its own 

particular footing and the appellate court must give due recognition to the wide 

discretion which our law rightly affords to the trial judges who deal with these 

matters.'" Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (quoting 

Martindell v. Martindell, 21 N.J. 341, 355 (1956)). 

Our examination of a trial judge's decision on a motion to terminate 

"alimony is limited to whether the court made findings inconsistent with the 

evidence or unsupported by the record, or erred as a matter of law." Reese v. 

Weis, 430 N.J. Super. 552, 572 (App. Div. 2013). A motion to terminate 

alimony is based on facts specific to each case, and we "must give due 
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recognition to the wide discretion which our law rightly affords to the trial 

judges who deal with these matters." Larbig, 384 N.J. Super. at 

21 (quoting Martindell, 21 N.J. at 355).

Alimony "may be revised and altered by the court from time to time as 

circumstances may require." N.J.S.A. 2A:34-23. A motion addressed to 

termination or suspension of alimony requires a showing of "changed 

circumstances." Lepis v. Lepis, 83 N.J. 139, 146 (1980). A prima facie showing 

of cohabitation constitutes sufficient changed circumstances under Lepis. See

Gayet v. Gayet, 92 N.J. 149, 154-55 (1983). "[A]limony may be terminated or 

modified pursuant to a consensual agreement . . . ." Temple v. Temple, 468 N.J. 

Super. 364, 368 (App. Div. 2021) (citing Konzelman v. Konzelman, 158 N.J. 

185, 193-94 (1999)).

Cohabitation has been defined as "an intimate relationship in which the 

couple has undertaken duties and privileges that are commonly associated with 

marriage." Konzelman, 158 N.J. at 202. "A mere romantic, casual or social 

relationship is not sufficient to justify the enforcement of a settlement agreement 

provision terminating alimony. Such an agreement must be predicated on a 

relationship of cohabitation that can be shown to have stability, permanency and 

mutual interdependence." Ibid. Cohabitation "is based on those factors that 
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make the relationship close and enduring and requires more than a common 

residence." Ibid. 

In 2014, the Legislature amended the cohabitation statute to provide:

[a]limony may be suspended or terminated if the payee 

cohabits with another person. 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 

common household.

When assessing whether cohabitation is occurring, the 

court shall consider the following:

(1) Intertwined finances such as joint bank accounts 

and other joint holdings or liabilities;

(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 

within the meaning of subsection h. of [N.J.S.A.] 25:1-

5; and

(7) All other relevant evidence.
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In evaluating whether cohabitation is occurring and 

whether alimony should be suspended or terminated, 

the court shall also consider the length of the 

relationship. A court may not find an absence 

of cohabitation solely on grounds that the couple does 

not live together on a full-time basis.

[N.J.S.A. 2A:34-23(n).]

Recently, this court held a party seeking to terminate alimony based on 

cohabitation need not "check off all six boxes [under N.J.S.A. 2A:34-23(n)] to 

meet the burden of presenting a prima facie case, [otherwise] a finding of 

cohabitation [would] be as rare as a unicorn." Temple, 468 N.J. Super. at 370. 

In Temple, the plaintiff, as the supporting spouse, submitted ample evidence of 

cohabitation to warrant an order allowing discovery and scheduling a plenary 

hearing. The plaintiff in that case presented the following evidence of 

cohabitation: the defendant and the claimed cohabitant lived together and had a 

fourteen-year relationship; the claimed cohabitant referred to the defendant as 

his wife on social media posts over a period of many years as well as in a 

Mother's Day church publication which listed the defendant under the claimed 

cohabitant's last name; the defendant and the claimed cohabitant traveled and 

participated in events extensively from 2012 through 2019; over the fourteen 

year relationship, the two were together for holidays and family functions; the 

defendant resided in the claimed cohabitant's home at the shore and the claimed 
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cohabitant resided at the defendant's apartment in New York City; photographs 

of the defendant engaging in household responsibilities and using a key and 

access code to enter and exit the claimed cohabitant's home; and the defendant 

and the claimed cohabitant sanitized their social media accounts to delete 

evidence of their cohabitation after the plaintiff's attorney requested 

preservation of records upon the filing of a motion to terminate alimony based 

on cohabitation. Id. at 371-375. When presented with such a wealth of 

evidence, we held the plaintiff presented a prima facie case of cohabitation "to 

entitle him to discovery and an evidentiary hearing." Id. at 375.

However, the evidence in the matter on appeal is very different from the 

evidence presented in Temple. Here, plaintiff failed to present "an abundance 

of evidence" that defendant and Sam were cohabitating. Id. at 371. The judge 

determined plaintiff presented some evidence, but certainly less than strong 

evidence, in support of two of the seven statutory factors governing 

cohabitation. 

At best, the judge concluded the evidence marshalled by plaintiff 

demonstrated an adult dating relationship over the course of three years. Unlike 

the social media posts in Temple, plaintiff submitted posts showing defendant 

and Sam attended two family functions and holidays, took two trips over a three-
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year period, and attended a child's sporting event in two photos. Nor did plaintiff 

present evidence defendant and Sam spent considerable time in each other's 

home or had keys as was proffered to the trial court in Temple. Moreover, unlike 

the defendant and the claimed cohabitant in Temple, defendant and Sam 

maintained separate homes and households and plaintiff proffered no evidence 

to the contrary. 

The motion judge considered the certifications submitted by plaintiff and 

defendant but did not resolve any factual disputes contained in the competing 

certifications. Rather, the judge considered the proffered evidence and 

concluded it was insufficient under N.J.S.A. 2A:34-24(n) to establish a prima 

facie case of cohabitation. The judge determined plaintiff simply presented 

evidence of a dating relationship that was not akin to the marital-type 

relationship presented to the trial court in Temple. Having reviewed the record, 

we are satisfied the judge did not abuse his discretion when he determined 

plaintiff failed to demonstrate a prima facie case in support of cohabitation to 

warrant discovery. 

We next consider plaintiff's argument the MSA eliminated the judge's 

need to examine financial contributions between defendant and Sam. "An 

agreement that resolves a matrimonial dispute is no less a contract than an
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agreement to resolve a business dispute." Quinn v. Quinn, 225 N.J. 34 45 

(2016). "It is not the function of the court to rewrite or revise an agreement 

when the intent of the parties is clear." Ibid. "[W]hen 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." Ibid. 

Here, we need not address waiver of financial contribution as a factor in 

the cohabitation analysis based on the limited evidence proffered by plaintiff. 

The lack of evidence supporting the other statutory factors weighed against a 

finding of cohabitation. The judge properly considered the cohabitation factors 

and determined plaintiff's evidence was insufficient to warrant discovery even 

if there had been evidence of financial contribution between defendant and Sam. 

Based on the paucity of evidence to establish cohabitation under N.J.S.A. 

2A:34-24(n), we discern no basis to disturb the judge's September 18, 2020 order 

vacating his April 23, 2020 order compelling discovery on the issue of 

cohabitation.

Affirmed.