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/cro ssrespondent (Lynne Strober and Rebecca Emily Frino, on the briefs). Moskowitz Law Group, LLC, attorneys for respondent/cross-appellant (Eilish M. McLou ghlin 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0251

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PER CURIAM In this post-judgment matrimonial matter, plaintif f 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 den ying her request for attorney's fees and

costs. We find no abuse of discretion, and affirm substant ially 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 fo r divorce. The parties entered into a Ma ri tal Settlement Agreement (MSA) on April 8, 2021, wh ich was incorporated into a Judgment of Divorce (JOD) e ntered on April 23, 2021. The MSA provides that Gary is required to pay Susan a $200,000 per year in alimony for five years. The MSA further provide s "[i]f [Susana] undertakes cohabitation with another person in a relationship which is tantamount to marriage, [Gary] may make an application to termina te 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 refe r to them by their first names. We intend no disrespect.3 A- 0251

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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 t o pay her attorney's fees. The judge determined Gary failed to establish Susan a's cohabitation, and failed to make a prima facie s howing of cohabitation sufficient to warrant discovery. In addition, she found that neither par ty 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 shar ed overnights; (7) no evidence of Susana being in the boyfriend's apartment; (8) n o financial reliance between them; (9) the boyfriend's clearing of snow, one tim e, at her home did not amount

to him participating in household chores; (10) the boyfrie nd was not taking care of Susana's property, her home or her children; (11 ) Susana and her boyfriend4 A- 0251

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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, Su sana'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 positio n 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 con cluded Susana should pay her own attorney's fees. On appeal, Gary contends t he judge "failed to properly address and weigh the entirety of the statutory fact ors." 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 consid ered by the judge because it "wholly precluded" his investigation into her cohabitat ion , 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 de monstrated financial transfers5 A- 0251

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and, thereby, satisfied one or two of the statutory factors; (2) he saw Susana's boyfriend in court during the parties' domestic vio lence matter; (3) friends and family saw Susana and her boyfriend together; (4) o n social media, Susana and her boyfriend identified themselves as being in a r elation ship , and posted pictures individually, as a couple, and of the othe r's children; (5) Susana and her boyfriend had daily contact and spent holidays toge ther; (6) her boyfriend : (i) hun g Christmas lights on the roof of Susana's home; (ii) spent "significant time" at Susana's residence when she was not at home; (ii i) 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-define d 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 show ing 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 h e 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 certi fications created genuine issues of material facts that should have be en resolved by way of a plenary6 A- 0251

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hearing. Therefore, he requests the judge's order be reversed and this ma tter 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 su fficient 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 paym ent of her attorney's fees. She argues the judge "erroneo usly placed most weight on the parties' ability to pay." While recognizing sh e receives income from alimony at the rate of $200,000 per year, she notes the se payments are only for five years, "a limited duration"; and Gary " wa s in a far better financial position to pay fees" than she was. Moreover, Susana contends the judge erred in findin g Gary's motion was not filed in bad faith. She argues that only month s after the divorce was finalized, he was checking her Facebook posts. Fur ther, he set up surveillance to watch her residence twenty-four hours per day, s even days a week for four months. In addition, he had access to her bank rec ords from the entry of the JOD until the filing of the motion.7 A- 0251

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Finally, Susana argues the judge erred in not consi dering she was awarded fees in connection with the domestic violence trial grant ing 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 sh ould remain undisturbed. He notes the judge specifically relied upon R ule 5:3 -5(c), and made findings of fact and conclusions of law which adequately justified h er decision

. Our review of a Family Part order is limited. See Cesare v. Cesare, 154 N.J. 394, 411 (1998). "Appellate courts accord par ticular deference to the Family Part because of its 'special jurisdiction and exper tise' 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 conclus ions 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 wher e it finds the trial judge clearly abused his or her discretion, "such as when the stated 'findings were mistaken[,] . . . the determination could not reaso nably 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

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Super. 61, 72 (App. Div. 2012) (alterations in orig inal) (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. 5 52, 568 (App. Div. 2013)). Here, the parties' MSA provides "[i]f [Susana] unde rtakes cohabitation with another person in a relationship which is tant amount to marriage, [Gary] may make an application to terminate or suspend ali mony, consistent with the New Jersey statute and case law. Cohabitation shal l 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 involve s 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, t he court shall consider the following: (1) Intertwined finances such as joint bank account s and other joint holdings or liabilities; (2) Sharing or joint responsibility for living expe nses; (3) Recognition of the relationship in the couple's social and family circle;9 A- 0251

- 22 (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 a n 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 f ramework for our consideration of cohabitation issues in Cardali v. Cardali , 255 N.J. 85 ( 2023 )

. The re, 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 ot her person as a prerequisite to discovery; as a practic al matter, such a showing may be impossible without discovery. Accordingly, we hold that a movant need not present evidence on all of the cohabitation fac tors in order to make a prima facie showing. If the mov ant's certification addresses some of the relevant factor s 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 mo vant has presented prima facie e vide nce of cohabitation. If the movant presents such prima facie evidence, t he court should grant limited discovery tailored to th e issues contested in the motion, subject to any prot ective order necessary to safeguard confidential informati on. If material facts remain in dispute after discovery and10 A- 0251

- 22 the filing of supplemental certifications, the cour t must conduct a plenary hearing before deciding the motio n 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]l l 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 persona l relationship' in which they have 'undertaken duties and privileges that are commonly associated with marria ge or civil union. '" Id. at
371. ( quo ting N.J.S.A. 2A:34-23(n))

. Governed by these standards, w e are convinced the judge undertook the appropriate analysis of Gary's allegation concerning Susana's cohabitation. The judge's decision analyzed the facts ; a ppl ied the factors outlined under N.J.S.A.11 A- 0251

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2A:34 -23(n); and gave due consideration to the burdens e stablished by Cardali and Temple. Thus, we discern no abuse of discretio n. Gary conten ds Susana's failure to "produce bills or make a financial disclosure" should have precluded the judge from fi nding no bills were shared; there were no joint accounts; and no financial "int ertwinement" existed. However, this contention misses the mark in two res pects. First, Susana had no obligation to produce her financial information unt il 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 judic ial function by consider ing the facts presented and analyz ing th ose 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 o rder "wholly precluded" his investigation into her cohabitation, ex cept 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 mer ely because he is bound by a domestic violence restraining order.12 A- 0251

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In short, we agree with J udge Francois that Gary failed to establish a prima facie case that Susana was cohabitating with her boyfrien d. 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 he r 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 Ga ry should have been ordered to pay her attorney's fees, we note Rule 4:4 2-9(a)(1) provides "[i]n a family action, a fee allowance both pendente lite a nd 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 fee s or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positi ons advanced by the parties both during and prior to tr ial; (4) the extent of the fees incurred by both parties ; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel b y each party;13 A- 0251

- 22 (7) the results obtained; (8) the degree to which fees were incurred to enfor ce 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 J udge Francois's denial of Susana's request for the payme nt of her attorney's fees and

costs. Instead, w e are convinced the judge undertook the appropriate analysis of the facts under the Rules of Court and properly applied the factors outlined under R ule 5:3 -5(c). Such factors included the parties' "financial circu mstances" and "ability to pay" their own fees or contribute to the other p arty's fees

. The record supports the judge's exercise of discretion in determining Sus ana could pay her own fees. Next, Susana contends Gary filed his motion in "bad faith." However, where " a party advances a legal position reasonably suppor ted 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,14 A- 0251

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intentionally misrepresenting facts or law, or othe rwise 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. Howe ver, we find this argument unavailing. The analysis for an award of counsel f ees in a domestic violence trial differs from the fee analysis in a post-judgm ent 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 t he financial means of prosecuting or defending a court action." DiGiacomo v. DiGiacomo , 256 N.J. Super. 404, 410 (App. Div. 1992) (citation omitted). But
i n 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 w ithout sufficient merit to warrant discussion in a written opinion. R. 2:11 -3(e)(1)(E). Affirmed.