SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-0251-22 

GARY POLLER, 

 Plaintiff-Appellant/ 

 Cross-Respondent, 

v. 

SUSANA POLLER, 

 

Defendant-Respondent/ 

 Cross-Appellant. 

___________________________

Submitted January 30, 2024 – Decided April 2, 2024 

Before Judges Enright and Paganelli. 

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Bergen County, 

Docket No. FM-02-0655-20. 

Mandelbaum Barrett, PC, attorneys for appellant/crossrespondent (Lynne Strober and Rebecca Emily Frino, 

on the briefs). 

Moskowitz Law Group, LLC, attorneys for 

respondent/cross-appellant (Eilish M. McLoughlin and 

Daniel Pelic, on the brief). 

NOT FOR PUBLICATION WITHOUT THE 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.
2 A-0251-22

PER CURIAM 

 In this post-judgment matrimonial matter, plaintiff Gary Poller appeals 

from an August 19, 2022 order denying his motion to terminate his alimony 

obligation to defendant Susana Poller.1 Susana opposes the appeal and crossappeals from that part of the order denying her request for attorney's fees and 

costs. We find no abuse of discretion, and affirm substantially for the reasons 

articulated by Judge Magali M. Francois in her comprehensive oral opinion. 

We glean the relevant facts from the motion record. The parties married 

on April 10, 2010. In September 2019 Gary filed for divorce. The parties 

entered into a Marital Settlement Agreement (MSA) on April 8, 2021, which 

was incorporated into a Judgment of Divorce (JOD) entered on April 23, 2021. 

The MSA provides that Gary is required to pay Susana $200,000 per year 

in alimony for five years. The MSA further provides "[i]f [Susana] undertakes 

cohabitation with another person in a relationship which is tantamount to 

marriage, [Gary] may make an application to terminate or suspend alimony, 

consistent with the New Jersey statute and case law. Cohabitation shall be 

defined by New Jersey law at that time." 

1

 Since the parties share a common last name, we refer to them by their first 

names. We intend no disrespect. 
3 A-0251-22

Gary filed a motion to terminate alimony or, in the alternative, sought 

discovery on the issue; he also moved for Susana to pay his attorney's fees. 

Susana opposed his motion and cross-moved for Gary to pay her attorney's fees. 

The judge determined Gary failed to establish Susana's cohabitation, and 

failed to make a prima facie showing of cohabitation sufficient to warrant 

discovery. In addition, she found that neither party was responsible to pay the 

other's attorney's fees. 

In addressing the issue of cohabitation, the judge noted Susana had a 

"dating relationship—a boyfriend." Considering the facts under N.J.S.A.

2A:34-23(n), the judge concluded the dating relationship fell short of 

cohabitation because Susana and her boyfriend were "not relying on each other 

as married people." She found: (1) they had no joint bank account; (2) their 

monetary transfers were "de minimis"; (3) there was no evidence of their sharing 

payment of bills; (4) they enjoyed no vacations together; (5) they did not spend 

Susana's birthday together; (6) no evidence of shared overnights; (7) no evidence 

of Susana being in the boyfriend's apartment; (8) no financial reliance between 

them; (9) the boyfriend's clearing of snow, one time, at her home did not amount 

to him participating in household chores; (10) the boyfriend was not taking care 

of Susana's property, her home or her children; (11) Susana and her boyfriend 
4 A-0251-22

did not comingle funds; and (12) their relationship ended. Therefore, the judge 

denied Gary's motion, finding his proofs of Susana's dating relationship fell 

short of a prima facie showing of cohabitation. 

In addition, the judge denied, as relevant here, Susana's request for 

attorney's fees. The judge applied the factors set forth in Rule 5:3-5(c) and 

found: (1) the parties were in a financial position to pay their own attorney's 

fees; (2) Gary did not file the motion in bad faith; and (3) no fees were previously 

assessed in the matter. Also, the judge considered the "result obtained" and that 

the amount of fees was "reasonable." The judge concluded Susana should pay 

her own attorney's fees. On appeal, Gary contends the judge "failed to properly 

address and weigh the entirety of the statutory factors." He argues since Susana 

"never provided any bills or a financial disclosure," the judge erred in finding 

no bills were shared; there were no joint accounts; and there was no financial 

"intertwinement." Further, he asserts Susana's domestic violence final 

restraining order against him should have been considered by the judge because 

it "wholly precluded" his investigation into her cohabitation, except through the 

use of a private detective. 

Moreover, Gary asserts he offered ample proof of cohabitation under the 

pertinent statutory factors. He argues: (1) he demonstrated financial transfers 
5 A-0251-22

and, thereby, satisfied one or two of the statutory factors; (2) he saw Susana's 

boyfriend in court during the parties' domestic violence matter; (3) friends and 

family saw Susana and her boyfriend together; (4) on social media, Susana and 

her boyfriend identified themselves as being in a relationship, and posted 

pictures individually, as a couple, and of the other's children; (5) Susana and her 

boyfriend had daily contact and spent holidays together; (6) her boyfriend: (i) 

hung Christmas lights on the roof of Susana's home; (ii) spent "significant time" 

at Susana's residence when she was not at home; (iii) drove Susana's vehicle and 

transported the parties' daughter; and (iv) brought shopping bags and flowers to 

the home. 

Gary argues the judge "assigned a vague, ill-defined burden to [his] 

application" that went "well beyond that envisioned by the prima facie standard" 

and he was not required to "make a prima facie showing as to each statutory 

factor identified in N.J.S.A. 2A:34-23(n)," citing Temple v. Temple, 468 N.J. 

Super. 362 (App. Div. 2021). Moreover, he argues he should have been given 

the benefit of all reasonable inferences that could have been drawn from the 

evidence, again citing Temple. 

Further, Gary argues the parties' conflicting certifications created genuine 

issues of material facts that should have been resolved by way of a plenary 
6 A-0251-22

hearing. Therefore, he requests the judge's order be reversed and this matter be 

remanded for discovery and a plenary hearing. 

Susana counters the judge considered the statutory factors and "correctly 

concluded that [Gary] had not presented evidence sufficient to make a prima 

facie case of cohabitation." Moreover, she asserts there was "no dispute as to 

material facts which would [have] necessitate[d] a plenary hearing." 

Additionally, Susana contends the judge erred in denying the payment of 

her attorney's fees. She argues the judge "erroneously placed most weight on 

the parties' ability to pay." While recognizing she receives income from alimony 

at the rate of $200,000 per year, she notes these payments are only for five years, 

"a limited duration"; and Gary "was in a far better financial position to pay fees" 

than she was. 

Moreover, Susana contends the judge erred in finding Gary's motion was 

not filed in bad faith. She argues that only months after the divorce was 

finalized, he was checking her Facebook posts. Further, he set up surveillance 

to watch her residence twenty-four hours per day, seven days a week for four 

months. In addition, he had access to her bank records from the entry of the 

JOD until the filing of the motion. 
7 A-0251-22

Finally, Susana argues the judge erred in not considering she was awarded 

fees in connection with the domestic violence trial granting a final restraining 

order against Gary. 

Gary argues the judge did not abuse her discretion in denying Susana's 

application for attorney's fees and the decision should remain undisturbed. He 

notes the judge specifically relied upon Rule 5:3-5(c), and made findings of fact 

and conclusions of law which adequately justified her decision. 

Our review of a Family Part order is limited. See Cesare v. Cesare, 154 

N.J. 394, 411 (1998). "Appellate courts accord particular deference to the 

Family Part because of its 'special jurisdiction and expertise' in family matters." 

Harte v. Hand, 433 N.J. Super. 457, 461 (App. Div. 2013) (quoting Cesare, 154 

N.J. at 413). "Only when the trial court's conclusions are so 'clearly mistaken' 

or 'wide of the mark' should we interfere . . . ." Gnall v. Gnall, 222 N.J. 414, 

428 (2015) (quoting N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 

(2008)). An appellate court will reverse only where it finds the trial judge 

clearly abused his or her discretion, "such as when the stated 'findings were 

mistaken[,] . . . the determination could not reasonably have been reached on 

credible sufficient evidence present in the record[,]' or the judge 'failed to 

consider all of the controlling legal principles[.]'" Clark v. Clark, 429 N.J. 
8 A-0251-22

Super. 61, 72 (App. Div. 2012) (alterations in original) (quoting Gonzalez-Posse 

v. Ricciardulli, 410 N.J. Super. 340, 354 (App. Div. 2009)). However, "all legal 

issues are reviewed de novo." Ricci v. Ricci, 448 N.J. Super. 546, 565 (App. 

Div. 2017) (citing Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)). 

Here, the parties' MSA provides "[i]f [Susana] undertakes cohabitation 

with another person in a relationship which is tantamount to marriage, [Gary] 

may make an application to terminate or suspend alimony, consistent with the 

New Jersey statute and case law. Cohabitation shall be defined by New Jersey 

law at that time." Under N.J.S.A. 2A:34-23(n): 

Alimony 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; 
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(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. 

 The New Jersey Supreme Court recently provided a framework for our 

consideration of cohabitation issues in Cardali v. Cardali, 255 N.J. 85 (2023). 

There, the Court held: 

We do not view . . . N.J.S.A. 2A:34-23(n) . . . to require 

evidence of a financial relationship between the spouse 

or civil union partner receiving alimony and the other 

person as a prerequisite to discovery; as a practical 

matter, such a showing may be impossible without 

discovery. Accordingly, we hold that a movant need

not present evidence on all of the cohabitation factors 

in order to make a prima facie showing. If the movant's 

certification addresses some of the relevant factors and 

is supported by competent evidence, and if that 

evidence would warrant a finding of cohabitation if

unrebutted, the trial court should find that the movant 

has presented prima facie evidence of cohabitation. 

If the movant presents such prima facie evidence, the 

court should grant limited discovery tailored to the 

issues contested in the motion, subject to any protective 

order necessary to safeguard confidential information. 

If material facts remain in dispute after discovery and 
10 A-0251-22

the filing of supplemental certifications, the court must 

conduct a plenary hearing before deciding the motion 

to terminate or suspend alimony. 

[Id. at 94-95.] 

We have "reject[ed] the argument that evidence of all the[] circumstances 

must be presented for a movant to establish a prima facie case of cohabitation." 

Temple, 468 N.J. Super. at 370. Additionally, "[t]he statute contains a seventh 

item, which allows a court's consideration of '[a]ll other relevant evidence,' 

N.J.S.A. 2A:34-23(n)(7), thereby demonstrating the statute does not contain the 

alpha and omega of what ultimately persuade a court that a support spouse is 

cohabiting." Ibid. (second alteration in original). 

"It is enough that the movant present evidence from which a trier of fact 

could conclude the supported spouse and another are in 'a mutually supportive, 

intimate personal relationship' in which they have 'undertaken duties and 

privileges that are commonly associated with marriage or civil union.'" Id. at 

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

Governed by these standards, we are convinced the judge undertook the 

appropriate analysis of Gary's allegation concerning Susana's cohabitation. The 

judge's decision analyzed the facts; applied the factors outlined under N.J.S.A. 
11 A-0251-22

2A:34-23(n); and gave due consideration to the burdens established by Cardali 

and Temple. Thus, we discern no abuse of discretion. 

Gary contends Susana's failure to "produce bills or make a financial 

disclosure" should have precluded the judge from finding no bills were shared; 

there were no joint accounts; and no financial "intertwinement" existed. 

However, this contention misses the mark in two respects. First, Susana had no 

obligation to produce her financial information until Gary established a prima 

facie showing of cohabitation. Only after a movant "presents such prima facie 

evidence, should the court grant limited discovery." Cardali, 255 N.J. at 95. 

Second, the judge appropriately performed her judicial function by considering

the facts presented and analyzing those facts under the factors provided by 

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

Gary also contends the judge should have considered Susana's domestic 

violence restraining order against him because the order "wholly precluded" his 

investigation into her cohabitation, except through the use of a private detective.

Again, this contention misses the mark. Gary bears no lesser burden in 

establishing a prima facie case of cohabitation merely because he is bound by a 

domestic violence restraining order. 
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In short, we agree with Judge Francois that Gary failed to establish a prima 

facie case that Susana was cohabitating with her boyfriend. As the judge noted, 

Susana is permitted to have a dating relationship. Gary failed to establish prima 

facie that Susana's dating relationship rose to the level of "a mutually supportive, 

intimate personal relationship in which [she and her boyfriend] ha[d] undertaken 

duties and privileges that are commonly associated with marriage" as required 

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

As to Susana's cross-appeal and her request that Gary should have been 

ordered to pay her attorney's fees, we note Rule 4:42-9(a)(1) provides "[i]n a 

family action, a fee allowance both pendente lite and on final determination may 

be made pursuant to R[ule] 5:3-5(c)." Courts 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 both during and prior to trial; 

(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; 
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(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. 

[R. 5:3-5(c).] 

Here, Susana argues the judge erred by placing too much weight on the 

parties' ability to pay. We disagree, and discern no abuse of discretion in Judge

Francois's denial of Susana's request for the payment of her attorney's fees and 

costs. Instead, we are convinced the judge undertook the appropriate analysis 

of the facts under the Rules of Court and properly applied the factors outlined 

under Rule 5:3-5(c). 

Such factors included the parties' "financial circumstances" and "ability 

to pay" their own fees or contribute to the other party's fees. The record supports 

the judge's exercise of discretion in determining Susana could pay her own fees. 

Next, Susana contends Gary filed his motion in "bad faith." However, 

where "a party advances a legal position reasonably supported which the court 

rejects, [it] is not the equivalent of 'bad faith.'" Slutsky v. Slutsky, 451 N.J. 

Super. 332, 367 (App. Div. 2017) (citation omitted). "Examples of bad faith 

include misusing or abusing process, seeking relief not supported by fact or law, 
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intentionally misrepresenting facts or law, or otherwise engaging in vexatious 

acts for oppressive reasons." Ibid. These circumstances do not exist here.

 Lastly, Susana argues the judge failed to consider she was "previously 

awarded" fees in the domestic violence trial. However, we find this argument 

unavailing. The analysis for an award of counsel fees in a domestic violence 

trial differs from the fee analysis in a post-judgment matrimonial matter. In a 

divorce action, "the purpose of the [attorney's fee] award is to equalize the 

positions of the parties . . . and to provide the needier individual with the 

financial means of prosecuting or defending a court action." DiGiacomo v. 

DiGiacomo, 256 N.J. Super. 404, 410 (App. Div. 1992) (citation omitted). But 

in a domestic violence matter, "reasonable attorney's fees" are considered a 

compensatory damage. A "defendant [is ordered] to pay to the victim monetary 

compensation for losses suffered as a direct result of the act of domestic 

violence." N.J.S.A. 2C:25-29(b)(4). Included within the losses is "reasonable 

attorney’s fees." Ibid.

Any remaining arguments raised by the parties are without sufficient merit 

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

Affirmed.