SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0513-18T2

VICTORIA GOETHALS,

Plaintiff-Respondent/

Cross-Appellant,

v.

JEFFREY J. GOETHALS,

Defendant-Appellant/

Cross-Respondent.

__________________________

Argued September 18, 2019 – Decided

Before Judges Whipple, Gooden Brown and Mawla.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Morris County, 

Docket No. FM-14-0109-15.

Joseph M. Freda, III, argued the cause for 

appellant/cross-respondent (Wilentz Goldman & 

Spitzer, and Gomperts Penza McDermott & Von Ellen, 

LLC, attorneys; Marisa Lepore Hovanec and Joseph M. 

Freda, III, of counsel and on the briefs). 

Paul H. Townsend argued the cause for 

respondent/cross-appellant (Townsend Tomaio & 

NOT FOR PUBLICATION WITHOUT THE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.

January 7, 2020
2

A-0513-18T2

Newmark LLC, attorneys; Paul H. Townsend, of 

counsel and on the brief; Jessica S. Swenson, Kevin 

Wei-Kwan Ku, and Jennifer M. Cornelius, on the 

briefs).

PER CURIAM

In this post-judgment matrimonial matter, defendant ex-husband moved 

to modify his alimony obligation based on plaintiff ex-wife's purported

cohabitation and salary increase. Plaintiff cross-moved for counsel fees and an 

increase in child support based on defendant's alleged significant salary increase 

since the divorce. In a September 14, 2018 Family Part order, the judge denied 

both motions. Defendant appeals and plaintiff cross-appeals, each arguing the 

judge erred in determining each failed to establish a prima facie case of changed 

circumstances. Plaintiff also argues the judge erred in denying her counsel fees. 

We affirm the denial of counsel fees, but reverse in all other respects.

I.

We present an expansive recitation of the procedural and factual 

background to lend context to the issues subject to these appeals. The parties

divorced in 2016 after a fifteen-year marriage that produced two sons, J.G.,1

born April 2004, and N.G., born May 2007. The Marital Settlement Agreement 

1

 We use initials to protect privacy.
3

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(MSA) incorporated into the Final Judgment of Divorce (FJOD) required 

defendant to pay child support in the amount of $650 per month "[b]ased on an 

equal shared custody arrangement, the incomes reflected on the child support 

guidelines [guidelines]" and "the alimony obligation." The guidelines reflected 

total annual income of $789,048 for defendant and $157,976 for plaintiff. As to

the alimony obligation, "[b]ased on the length of the parties' marriage," 

defendant's "base income of $439,000," plaintiff's base "income of $142,533," 

plaintiff's "needs," and "consideration of other statutory factors," defendant was 

obligated to pay plaintiff $103,992 per year or $8666 per month for six years,

commencing upon the entry of the FJOD. 

The MSA also provided:

32. As additional alimony, [defendant] shall directly 

provide [plaintiff] with [twenty-five percent] of his 

gross bonus received by him, . . . subject to a cap of 

$215,000. [Plaintiff's] gross annual bonus shall be 

subtracted from the amount of [defendant's] gross 

bonus or from $215,000, whichever is lesser and then 

multiplied by [twenty-five percent], to arrive at a fixed 

lump sum payment to [plaintiff] that shall fully satisfy 

this additional alimony award. . . .

33. Also as additional alimony, if [defendant] is paid 

any stock, stock options, [restricted stock units

(RSUs)], or any form of additional compensation not 

otherwise subject to equitable distribution, including 

deferred compensation, other than his base salary and 
4

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bonus . . . , [plaintiff] shall receive [fifteen percent] of 

same, subject to a cap of $16,320 net.

Pursuant to the MSA, "[t]he parties acknowledge[d] that the alimony 

terms . . . [would] not permit them to live at a standard of living reasonably 

comparable to that enjoyed by them during the marriage[,]" but agreed to "be 

bound by the terms" of the MSA "in consideration of all of the financial terms 

set forth in [the] [a]greement[.]" The MSA also provided for the premature 

termination of alimony upon either party's death or upon plaintiff's "remarriage." 

Additionally, the MSA provided that "[plaintiff's] cohabitation in a mutually 

supportive, intimate, personal relationship shall be considered a change of 

circumstances warranting a review of alimony." Further, the MSA specified that

plaintiff had "an affirmative obligation to advise [defendant] of said 

cohabitation." 

In the MSA, the parties acknowledged that they were represented by 

independent counsel, that they entered into the MSA "freely and voluntarily 

without coercion or duress[,]" and that they believed the agreement was

"reasonable and fair." The parties also agreed to "pay their own counsel fees

with regard to the preparation of the [MSA] and obtaining the [FJOD]." 

However, "if either party [brought] an application to enforce any term of th[e] 

[MSA], the party who failed to comply with th[e] [MSA] [would] be responsible 
5

A-0513-18T2

for paying any and all reasonable legal fees and costs[,] and other expenses 

awarded to the other party in successfully bringing an application to enforce th[e 

MSA]."

On May 16, 2017, plaintiff filed her third enforcement motion,2seeking 

an order finding defendant in violation of litigant's rights based upon defendant's 

failure to timely pay plaintiff her share of various stocks, stock options, bonuses, 

and income tax refunds in connection with the alimony and equitable 

distribution provisions of the MSA. Under the equitable distribution provisions 

of the MSA, plaintiff was entitled to specified portions of defendant's employee 

stock purchase plan shares and stock options that had vested. Additionally, any 

income tax refund for the parties' joint 2015 tax return was to "be allocated 

between the parties in proportion to his or her share of income in 2015." Plaintiff 

also sought counsel fees and costs associated with the enforcement motion. 

Defendant opposed the motion, and cross-moved for other relief, 

including terminating, suspending, or modifying his alimony obligation based 

upon plaintiff's cohabitation with A.G. In responding to plaintiff's enforcement 

motion, defendant certified the court had previously addressed some of 

2

 Plaintiff had partially prevailed in her prior motions.
6

A-0513-18T2

plaintiff's requests "in its most recent [o]rder," and other requests were 

submitted to an upcoming early settlement panel (ESP). Further, defendant 

certified plaintiff failed to cooperate with his earlier attempt "to settle up the 

bonus payments," and that he previously provided plaintiff checks totaling 

$135,790, representing her share of the vested stocks, as well as "all of the 

information . . . including detailed transaction information and associated tax[-

]impact information" related to "the sale of the stock."

To support his cohabitation claim, defendant certified that "[p]laintiff and 

[A.G.] have been involved in an exclusive, enduring and committed relationship 

for the past three . . . years," which "began prior to" the finalization of their 

divorce and "has now resulted in . . . [p]laintiff and [A.G.] becoming engaged." 

In his certification, relying on Instagram and Facebook activity, personal 

observations, and a surveillance report prepared by a private investigation firm

he retained, defendant asserted that "at a bare minimum[,]" plaintiff and A.G.: 

(1) are engaged; (2) spent consistent/regular overnights 

together from August 1, 2014 through the present; (3) 

moved together from . . . Birch Drive to . . . Berta Place 

in Basking Ridge; (4) blended their families together; 

(5) transported each other's children; (6) performed 

household chores together; (7) [ate] out together with 

their families; (8) attended parties, barbeques, and 

gatherings of friends/family; (9) performed crossfit 

training/competitions together; and (10) held 
7

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themselves out to the public, family, and friends as a 

couple.

Defendant provided screenshots of Instagram and Facebook comments, as 

well as photos and videos, showing, among other things, "[A.G.] and his [two]

daughters . . . at . . . [p]laintiff's beach house and on her boat in the Barnegat 

Bay[,]" plaintiff donating $100 to a "fundraising page" on behalf of A.G.'s 

family member, and the couple's dogs spending time together. Additionally, the 

surveillance report revealed that A.G. spent approximately eighteen overnights

at plaintiff's home between September 5, 2016 and April 1, 2017, and plaintiff 

and the parties' children stayed with A.G. at his Virginia property from April 21

through 23, 2017. The surveillance report also noted that A.G. was observed 

clearing snow from plaintiff's car, and "re-stack[ing] items in the 

recycling/garbage pile at the end of [plaintiff's] driveway." In addition, on 

October 15, 2016, "a POD[S] [c]ontainer, with [A.G.]'s belongings" was 

observed in "[p]laintiff's driveway," and "[o]n October 28, 2016, . . . a large 

moving truck" moved "[p]laintiff, [A.G.], and [the parties'] children . . . from 

. . . Birch Drive to . . . Berta Place." 

In response, plaintiff acknowledged her engagement to A.G. as of April 

1, 2017. However, plaintiff denied any intertwined finances, denied sharing 

household chores, denied making any enforceable promises to support each 
8

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other, and denied living with A.G. According to plaintiff, A.G. resided in his 

own home in Virginia and visited mainly on weekends. Plaintiff denied that 

A.G. moved with her to Berta Place, and denied that A.G.'s belongings were 

ever in the PODS container, which she obtained to move her belongings to Berta 

Place. Plaintiff denied being in a relationship akin to the supportive, intimate, 

and personal or marriage-like relationship that would warrant review of 

defendant's alimony obligation, and refuted defendant's contention that his 

social media exhibits proved otherwise. 

In an August 1, 2017 order, the judge denied the parties' motions. As to 

plaintiff's enforcement motion, the judge ordered the parties to "agree on a 

forensic accountant to determine whether defendant owe[d] plaintiff additional 

money" in relation to the stock payment dispute. Regarding the bonus payments, 

the judge ordered the parties "to divulge to each other their 2016 additional 

compensation" as required under the MSA, and to make any outstanding 

payment "within [thirty] days of their respective receipts." As to counsel fees, 

the judge denied plaintiff's request pursuant to the MSA because her "motion 

was not successful." However, the judge granted plaintiff "leave to file" for 

counsel fees "regarding the stock payment issue only[,]" if the forensic 
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accountant's "report leads the court to [conclude] that defendant breached the 

MSA's provision regarding stock payment[.]"3 

Turning to defendant's cohabitation claim, applying governing case law 

and the applicable statutory factors contained in N.J.S.A. 2A:34-23(n), the judge

concluded "[d]efendant has fallen short . . . in making a prima facie case of 

cohabitation to shift the burden of proof to plaintiff." The judge explained that 

while A.G. and plaintiff were "engaged, plaintiff's relationship with [A.G.] is 

the romantic relationship characterized by regular meetings, participation in 

mutually appreciated activities, and some overnight stays," all of which were

insufficient to establish cohabitation "considering the absence of economic 

impact." Specifically, the judge found defendant failed to produce any evidence 

of "intertwined finances[,] such as joint bank accounts and other joint holdings 

or liabilities," and failed to produce any evidence of "joint responsibility for 

living expenses[.]" The judge noted that "[e]ating out, vacationing, and visits 

to plaintiff's shore house do not suggest that plaintiff or [A.G.] are paying each 

other's living expenses." 

3

 Plaintiff withdrew her request for her proportionate share of the joint income 

tax refund and reimbursement for the amounts defendant previously charged 

against plaintiff's share of equitable distribution payments.
10 A-0513-18T2

Additionally, the judge found no evidence of "sharing household chores," 

or caring "for each other's children." The judge also rejected defendant's claim 

that "[twenty-eight] family Facebook photographs over the course of about two 

years which either plaintiff or [A.G.] liked or commented on" constituted

"recognition of the relationship in the couple's social and family circle," or 

evidence "of a relationship tantamount to marriage." According to the judge, 

instead, "[t]his [was] evidence of casual contact between friends on the 

[i]nternet; not two families effectively merging by virtue of the relationship 

between a couple." The judge pointed out that "[e]ven if defendant had better 

evidence, recognition of the couple would not be dispositive of a prima facie 

case of cohabitation."

The judge continued:

As for living together, the frequency of contact, 

the duration of the relationship, and other indicia of a 

mutually supportive intimate personal relationship, 

defendant's photographs of moving trucks and POD[S]

containers confirm only one thing – that plaintiff 

moved and [A.G.] helped the movers. There is no 

evidence [A.G.'s] belonging[s] were inside the POD[S]. 

There is no evidence that [A.G] moved to New Jersey 

whatsoever, let alone back in October 2016, the time of 

the POD[S's] invoice and purported move. . . . All of 

the activity reported by the private investigator is 

nothing short of sporadic. The pattern of the time 

periods in the report reflect temporary visiting. The 

private investigator could not "string together" any 
11 A-0513-18T2

significant length of time suggesting anything more 

than regular visits and overnight stays. Same is said for 

the defendant's own photographs offered as evidence 

. . . . Defendant's evidence certainly suggests an 

intimate and enjoyable relationship, albeit one mutually 

supportive emotionally, not economically. Intimacy 

does not pay the bills or maintain the standard of living 

memorialized in a [MSA]. 

On August 22, 2017, defendant moved for reconsideration, arguing that 

under the MSA, there was no requirement that there be economic impact or 

intertwined finances when determining cohabitation. Defendant stressed that

based on the court's own findings, he made the requisite showing of changed 

circumstances as defined by the MSA. Plaintiff opposed the motion and crossmoved for an order finding defendant in violation of litigant's rights for failing 

to comply with an earlier court order directing defendant to reimburse plaintiff 

for real estate taxes, failing to cooperate with the forensic accountant retained 

pursuant to the August 1, 2017 order, and failing to resolve the outstanding 

bonus payment dispute. Plaintiff also sought counsel fees in connection with 

her motion. In a December 19, 2017 order, the judge denied defendant's motion. 

As to plaintiff's enforcement motion, the judge ordered defendant to reimburse 

plaintiff the real estate taxes addressed in the earlier court order, and ordered the 

parties to comply with the court ordered forensic accountant to resolve the 
12 A-0513-18T2

remaining issues.

4

 The judge also determined that in the absence of "bad faith" 

by either party, "neither party [was] entitled to [c]ounsel fees." 

On July 27, 2018, defendant filed another motion to review his alimony 

obligation, asserting changed circumstances based upon "[p]laintiff's

cohabitation and/or [p]laintiff's substantial increase in income" from the time 

the MSA was entered.

5

 In a supporting certification, defendant reiterated that 

"the court erred when it determined that intertwined finances were necessary" 

to establish cohabitation where the parties' MSA only required "a 'mutually 

supportive', 'intimate' and 'personal relationship[,]'" which defendant showed 

"[b]ased on the court's own findings[.]" Defendant added that plaintiff and A.G. 

"continue[d] to spend significant time" together "on a regular basis," and 

"function[ed] effectively as a blended family unit," sharing "a family [i]Cloud 

4

 The judge determined that the stock payment dispute was moot based on 

defendant's concession and plaintiff's withdrawal of her request.

5

 Defendant had attempted to appeal the prior adverse cohabitation ruling, but 

withdrew his appeal because the outstanding forensic accountant's report 

precluded a determination of finality. Appeals as of right are limited to final 

judgment. See R. 2:2-3. "To be considered a final judgment appealable as of 

right, the order must generally dispose of all issues as to all parties." CPC Int'l, 

Inc. v. Hartford Accident & Indem. Co., 316 N.J. Super. 351, 365 (App. Div. 

1998).
13 A-0513-18T2

account where they chronicle[d] important events with themselves and their 

children."

Once again, defendant provided photos of the families "spend[ing]

holidays, vacations and the summer together," including "Christmas [c]ard 

photographs," "their new family dog," and "cooking" photos "in [p]laintiff's 

kitchen." Defendant certified that A.G. "assist[ed] with parental responsibility 

for [the parties'] children," as evidenced by him "dropping [them] off" for 

parenting time with defendant, and by the parties' "son regularly refer[ring] to 

[A.G.] as his 'step-dad'." To support the latter allegation, defendant provided 

his girlfriend's affidavit, certifying that the parties' children often called A.G. 

their stepfather, and that A.G.'s children had a room at plaintiff's shore home,

which they decorated. 

While stressing that intertwined finances were "absolutely unnecessary"

to establish cohabitation, defendant noted it was "readily apparent" from

plaintiff and A.G. "spend[ing] time together at [p]laintiff's residence, her shore 

house, on vacations, and holidays" that "[b]oth parties [were] certainly 

economically benefit[t]ing from same." Additionally, defendant provided a 

spending summary from the parties' "pre-divorce joint [bank] account," which 
14 A-0513-18T2

defendant asserted was used by plaintiff to make purchases for A.G.'s Virginia 

home and to pay for A.G.'s travel expenses "while they vacationed together."

To support his claim of changed circumstances based upon plaintiff's 

change in income, defendant certified that "[p]laintiff's total income increased 

to $181,870.31," representing "an almost [thirty percent] increase" since "the 

time of [their] divorce." Further, according to defendant, plaintiff was 

"promoted as of March 2018 to the Director of Sales Compensation and Health 

Systems Analytics[,]" which defendant "surmise[d]" would result in an even 

greater increase in plaintiff's income and "an even greater ability to meet the 

marital standard of living." In compliance with court rules, see R. 5:5-4(a), 

defendant submitted his prior Case Information Statement (CIS) and an updated 

CIS, dated July 27, 2018, showing that defendant earned an annual salary of 

$461,600, plus $396,630 in bonuses, and had a current lifestyle of $33,435 per 

month. 

Plaintiff opposed defendant's motion and cross-moved for an order 

"[r]ecalculating [c]hild [s]upport based on the substantial change of 

circumstances in [d]efendant's significantly increased income;" "[f]inding 

[d]efendant in contempt of the [c]ourt's [August 1 and December 19, 2017] 

[o]rders . . . for failure to cooperate with the [c]ourt[] [appointed forensic 
15 A-0513-18T2

accountant;]" "[f]or counsel fees and costs related to th[e] application;" and 

other relief not pertinent to these appeals. In support, plaintiff certified there 

was "no merit to [d]efendant's third application seeking to terminate alimony 

based on cohabitation" when the court had previously determined "that all 

[d]efendant can show is that [she] was dating and . . . [was] now engaged to 

someone who live[d] far away and visit[ed] from time to time." Plaintiff 

reiterated that she and A.G. "do not share expenses, chores[,] or any other factors 

the [c]ourt considers." Plaintiff denied "own[ing] any part of" A.G.'s Virginia 

home or "purchas[ing]" any furniture for his home. Plaintiff also denied that the 

parties' children "call[ed] [A.G.] their step-father" and denied "hav[ing] 

'blended' [their] families," asserting that the parties' children had only met A.G.'s 

children on "a few occasions."

Regarding their income, plaintiff acknowledged "[she] did receive a raise 

and promotion" in 2017, but asserted it was her "base salary and bonus" 

combined that totaled $181,000, whereas the MSA "specifically used only . . . 

base salaries and not bonus income for purposes of determining alimony." 

Plaintiff noted that "[a]limony related to bonus[es] and 'other' income was dealt 

with separately" in the MSA. Plaintiff further certified that "even with [her]

recent [eight percent] raise[,]" she was "still living below the marital lifestyle 
16 A-0513-18T2

and [her] earnings [were] not sufficient to cover [her] expenses without 

alimony." In contrast, relying on defendant's updated CIS, plaintiff pointed out 

that defendant's "expected annual income" for 2018 was "$2.8 million[,]" 

representing "a 350 [percent] increase from his earnings at the time of [the] 

divorce." Plaintiff asserted further that since the divorce, "in addition to more 

than tripling his earnings[,]" defendant was promoted from "Group Vice 

President of Business Information" to "Senior Vice President of Merchant 

Support." 

According to plaintiff, because "[d]efendant's lifestyle has also grown 

exponentially" to "well more than [the parties'] marital lifestyle and significantly 

more than [her] own current lifestyle[,]" "any change of circumstances caused 

by [her] . . . raise [was] far out[-]shadowed by his." Additionally, to support her 

request for an increase in child support to $1204 per month, plaintiff submitted 

an updated guidelines calculation, using current income figures for both parties. 

Plaintiff also sought counsel fees, asserting defendant had "intentionally 

[misled] the [c]ourt with frivolous and repetitive application[s] while refusing 

to comply with the terms of [the] MSA and [c]ourt [o]rders." 

In reply, defendant denied earning $2.8 million, denied being promoted 

since they finalized the divorce, and certified "[his] income has remained 
17 A-0513-18T2

virtually unchanged since [their] divorce[.]" Defendant averred his annual base 

salary remained $461,600, and he received a gross bonus of $396,630, "of which 

[p]laintiff will receive a share as additional alimony upon finalization of the 

accountant's figures[.]"6 Further, to reinforce his assertion that plaintiff and 

A.G. "are recognized as a couple in the [family] and social circles," defendant 

provided a surveillance report and photos, documenting that A.G. and his 

extended family attended an eighth grade graduation party for the parties' son at 

plaintiff's shore home on July 28, 2018. 

On September 14, 2018, a different judge denied the portions of the

motions pertinent to these cross appeals.

7

In an accompanying statement of 

reasons, addressing the cohabitation issue, which the judge described as 

defendant's "third bite at the apple," the judge refused to "disturb a wellreasoned decision that has been decided twice before," with no "change" of 

circumstances "since the time of those decisions[.]" Relying on the statutory 

factors enumerated in N.J.S.A. 2A:34-23(n), the judge explained:

6

 Contrary to plaintiff's claim, defendant also certified that he had provided all 

required documentation to the forensic accountant, and that his counsel was "in 

constant contact" with the accountant to expedite the final report. 

7

 Unrelated to the issues raised in these appeals, the judge granted plaintiff's 

requests for the appointment of a parent coordinator, and the use of the My 

Family Wizard program for communication. 
18 A-0513-18T2

While [p]laintiff is now engaged, [d]efendant has only 

been able to prove that the fiancé has overnight visits 

on multiple occasions, especially when the [p]laintiff is 

hosting a party. The fact that the [p]laintiff openly 

shows her family and friends that she is in a relationship 

is not a deciding factor. Neither is the fact that the 

couple's children have met and spent time together. 

Even more significantly, [p]laintiff's fiancé lives in 

Virginia and the couple does not have intertwined 

finances. 

Rejecting defendant's contention that he made the requisite showing of 

cohabitation as defined in their MSA, the judge disagreed that "[p]laintiff's 

relationship [with A.G. was] truly . . . one that [was] 'mutually supportive,' as 

stated in the parties' definition of cohabitation." In that regard, the judge agreed 

with the prior judge that while "plaintiff and [A.G.'s] engagement [was] 

certain[l]y relevant," it was "not dispositive considering the absence of 

economic support[,]" and the fact that the couple "live[d] and maintain[ed] 

homes in two different states[.]"

Addressing the parties' respective salary increases since the time of the 

divorce to establish the requisite changed circumstances, as to defendant's 

contention, the judge acknowledged the conflicting certifications, but

determined that "[e]ven assuming the facts alleged by the [d]efendant," the 

"percentage of permanent increase" between the parties was "not significant"

"under the circumstances" to warrant "a recalculation" of alimony. Relying on
19 A-0513-18T2

Glass v. Glass, 366 N.J. Super. 357 (App. Div. 2004), the judge explained that 

"a supported spouse's increase in income does not, in and of itself, constitute a 

substantial change in circumstances warranting a reduction or termination of 

support, even when such an increase enables the supported spouse to maintain 

the standard of living enjoyed during the marriage, without the need for 

support." 

Turning to plaintiff's request to recalculate child support based on 

defendant's "significantly" increased income, the judge found that, based on 

defendant's statements, "his expected earnings will be $1.4 million, including 

stock gains subject to additional distributions[,]" rather than $2.8 million as 

alleged by plaintiff. As to plaintiff, the judge determined "[p]laintiff's income 

has increased by [thirteen percent.]" Despite finding "that both parties['] salaries 

have increased, as well as the parties['] stock gains and required distributions 

pursuant to the MSA[,]" the judge found no "change in circumstances to warrant 

a modification of child support."

Finally, the judge denied plaintiff's request to hold "[d]efendant in 

contempt of court," ordered "[d]efendant to comply with all outstanding [o]rders 

as well as any requirements left uncompleted from the MSA[,]" and denied both 

parties' requests "for counsel fees." Considering Rule 4:42-9 as well as the Rule
20 A-0513-18T2

5:3-5(c) factors, the judge relied on the "ongoing issues between the parties," 

"their inability to communicate," as well as the fact that "[b]oth parties are 

financially sound, and able to pay their respective fees" to support his decision 

denying counsel fees. These appeals followed. 

II.

Our scope of review of Family Part orders is limited. Cesare v. Cesare, 

154 N.J. 394, 411 (1998). "[R]ecognizing the special expertise of judges hearing 

matters in the Family Part, we accept the trial judge's conclusion when 

evidentially supported." Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div. 

2010) (citing Cesare, 154 N.J. at 412). We will only intervene "to 'ensure that 

there is not a denial of justice'" when the trial court's conclusions are "'clearly 

mistaken' or 'wide of the mark[,]'" ibid. (quoting N.J. Div. of Youth & Family 

Servs. v. E.P., 196 N.J. 88, 104 (2008)), "or when we determine the court has 

palpably abused its discretion." Id. at 47 (citing Cesare, 154 N.J. at 412). 

"However, when reviewing legal conclusions, our obligation is different; '[t]o 

the extent that the trial court's decision constitutes a legal determination, we 

review it de novo.'" Landers v. Landers, 444 N.J. Super. 315, 319 (App. Div. 

2016) (alteration in original) (quoting D'Agostino v. Maldonado, 216 N.J. 168, 

182 (2013)). 
21 A-0513-18T2

Guided by these standards, we turn to the parties' specific arguments. 

Defendant argues that "[n]otwithstanding the abundance of proofs 

demonstrating a strong likelihood that [p]laintiff and [A.G.] were engaged in the 

type of mutually supportive, intimate personal relationship contemplated by the 

parties as justifying a review of alimony in their MSA, the [t]rial [c]ourt denied 

[his] request for any relief on the issue." Defendant asserts the court's 

"determination that [d]efendant had not met his prima facie burden of 

demonstrating cohabitation went against the weight of the evidence[,]" and "[a]s 

such, . . . must be reversed, and the matter remanded for discovery and a plenary 

hearing." We agree.

It is well established that 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, ___ N.J. Super. ___ (App. Div. Sep. 12, 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, slip op. at 1-2. Those amendments 

defined cohabitation as "involv[ing] a mutually supportive, intimate personal 
22 A-0513-18T2

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;

(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. ] 
23 A-0513-18T2

In Landau, 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, slip op. at 13 (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 17 (alteration in original) (quoting 

Lepis, 83 N.J. at 157).

In Gayet, the Court held that cohabitation of the dependent ex-spouse 

constitutes a change of circumstances to justify the reduction or termination of 

alimony by the supporting ex-spouse only if the economic benefit inuring to 

either cohabitor is sufficiently material to justify relief. 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." 

Konzelman v. Konzelman, 158 N.J. 185, 196 (1999) (citing Gayet, 92 N.J. at 

154-55). 

However, in Konzelman, after recognizing the enforceability of 

cohabitation provisions in property settlement agreements, the Court held that 
24 A-0513-18T2

"an agreement between the parties to allow cohabitation to terminate alimony 

obligations can be a valid basis for discontinuing alimony, without regard to the 

economic consequences of that relationship" provided that both parties have 

agreed to this contingency. Id. at 196. According to the Court,

a specific consensual agreement between the parties to 

terminate or reduce alimony based on a predetermined 

change of circumstances does not require an inquiry 

into the financial circumstances or economic status of 

the dependent spouse so long as the provision itself is 

fair. Thus, where the parties have agreed that 

cohabitation will constitute a material changed 

circumstance, and that [the] agreement has been judged 

fair and equitable, the court should defer to the 

arrangements undertaken by the parties.

[Id. at 197.]

Here, the MSA specified "cohabitation in a mutually supportive, intimate, 

personal relationship shall be considered a change of circumstances warranting 

a review of alimony." Indeed, the prior judge's decision, upon which this judge 

relied, found defendant's evidence established "an intimate and enjoyable 

relationship, albeit one mutually supportive emotionally[.]" However, by 

dismissing the substantial evidence amassed by defendant, and requiring 

evidence of intertwined finances and the couple living together on a full-time 

basis to establish prima facie evidence of changed circumstances, the judge 
25 A-0513-18T2

misapprehended the express provision of the MSA and the factors enumerated 

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

Thus, we agree with defendant that the judge committed reversible error. 

Consistent with the procedure outlined in Lepis, the judge should have ordered

discovery, and held a hearing to address the material facts that were in genuine 

dispute. 83 N.J. at 159-60. We therefore reverse and remand on this issue. 

Based on our decision, we will not address defendant's alternate contention that 

the judge misapplied Glass, 366 N.J. Super. at 361-62, in determining that 

"[p]laintiff's substantial increase in income was not a change in circumstances 

warranting a review of alimony." However, we do not limit the remand to the 

cohabitation issue and direct instead that "[a]ll relevant considerations should 

[be] addressed[.]" Id. at 376. 

In her cross-appeal, plaintiff argues the judge erred in denying her motion 

for modification of child support based solely on the fact that both parties, rather 

than defendant alone, had increased earnings since the divorce. According to 

plaintiff, her "modest raise . . . only provide[d] further basis for the [c]ourt to 

recalculate child support in light of [d]efendant's considerable increase in 

earnings." 
26 A-0513-18T2

Like alimony, child support orders are subject to review and modification 

"from time to time," N.J.S.A. 2A:34-23, "on a showing of 'changed 

circumstances.'" Lepis, 83 N.J. at 146 (quoting Chalmers v. Chalmers, 65 N.J. 

186, 192 (1974)). Child support may be revised when the party seeking 

modification satisfies the burden of showing a change of circumstances from 

those defined in an existing order. See N.J.S.A. 2A:34-23; Lepis, 83 N.J. at 157; 

Beck v. Beck, 239 N.J. Super. 183, 190 (App. Div. 1990). Significant changes 

in income or earning capacity of either parent may result in a finding of changed 

circumstances as "[c]hildren are entitled to have their 'needs' accord with the 

current standard of living of both parents, which may reflect an increase in 

parental good fortune." Zazzo v. Zazzo, 245 N.J. Super. 124, 130 (App. Div. 

1990). 

Applying this standard, we are satisfied plaintiff made the requisite 

showing based on the increased income and earning capacity of both parties. 

Further, given the significant disputed facts surrounding defendant's income and 

earning capacity, plaintiff has demonstrated her entitlement to reciprocal 

discovery to test defendant's representations regarding his earned income, 

earning ability, and discretionary bonuses. Indeed, the "complete financial 

information of both parents [is] necessary for any order of child support." Id. at
27 A-0513-18T2

129. If necessary, a plenary hearing should be conducted to resolve any material 

facts in dispute. See Lepis, 83 N.J. at 159 (holding that a plenary hearing must 

be conducted on a motion to modify support when there are genuine issues of 

material fact that bear on a critical question).

In her cross-appeal, plaintiff also challenges the judge's denial of counsel 

fees. Plaintiff argues she was entitled to an award of counsel fees under the

MSA because defendant "failed to comply with prior [c]ourt [o]rders as well as 

the[] MSA." Plaintiff also asserts counsel fees are appropriate because 

defendant acted "in the utmost bad faith" by "fil[ing] motion after motion 

without the required new, substantial[,] and credible evidence."

Rule 4:42-9(a)(1) authorizes the award of counsel fees in a family action. 

In making the determination, pursuant to Rule 5:3-5(c), the court should 

consider the following factors:

(1) the financial circumstances of the parties; (2) the 

ability of the parties to pay their own fees or to 

contribute to the fees of the other party; (3) the 

reasonableness and good faith of the positions 

advanced by the parties . . . ; (4) the extent of the fees 

incurred by both parties; (5) any fees previously 

awarded; (6) the amount of fees previously paid to 

counsel by each party; (7) the results obtained; (8) the 

degree to which fees were incurred to enforce existing 

orders or to compel discovery; and (9) any other factor 

bearing on the fairness of an award.
28 A-0513-18T2

See also N.J.S.A. 2A:34-23. 

"The application of these factors and the ultimate decision to award 

counsel fees rests within the sound discretion of the trial judge." Gotlib v. 

Gotlib, 399 N.J. Super. 295, 314-15 (App. Div. 2008) (quoting Loro v. Colliano, 

354 N.J. Super. 212, 227 (App. Div. 2002)). "We will disturb a trial court's 

determination on counsel fees only on the 'rarest occasion,' and then only 

because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 

317 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). 

Here, under the MSA, the parties agreed that the party who brought a 

successful enforcement motion for non-compliance with the MSA would be 

entitled to counsel fees from the non-compliant party. However, plaintiff did 

not prevail on her enforcement motion and does not challenge that determination 

in her cross-appeal. Thus, plaintiff was not entitled to counsel fees under the 

MSA provision. Additionally, the judge considered the financial circumstances 

of the parties, determined both parties were able to pay their respective fees, 

assessed the disputed issues and results obtained, and found no bad faith on the 

part of defendant. Therefore, in denying counsel fees, the judge considered the 

requisite factors. 
29 A-0513-18T2

We are satisfied the judge's decision reflects no clear abuse of discretion 

to warrant reversal. In so concluding, we acknowledge plaintiff's frustration and 

belief that "[d]efendant's actions are clearly retaliatory" and designed "to abuse 

[p]laintiff through the legal system." We also "recognize the potential for abuse 

of the judicial process and waste of personal and judicial resources implicit in 

the making of repeated 'incremental' motions, and we vigorously disapprove 

such a course of conduct." Beck, 239 N.J. Super. at 191. However, we also 

recognize that a litigant "should not . . . ordinarily be penalized by the 

deprivation of a remedy to which he would otherwise be entitled." Ibid. 

In sum, we affirm the judge's denial of counsel fees, but reverse the judge's 

determination that both parties failed to establish a prima facie case of changed 

circumstances to justify discovery and, if necessary, a plenary hearing. 

Accordingly, we remand for the judge to permit the parties to engage in

reciprocal discovery, and conduct a plenary hearing, if warranted. To the extent 

we have not addressed a particular argument, it is because either our disposition 

makes it unnecessary or the argument was without sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed in part, reversed in part, and remanded for further proceedings 

consistent with this opinion. We do not retain jurisdiction.