SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3910-17T3

M.M.,

Plaintiff-Respondent,

v.

J.Y.,

Defendant-Appellant.

____________________________

Argued May 15, 2019 – Decided June 13, 2019

Before Judges Koblitz, Currier and Mayer.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Somerset County, 

Docket No. FM-18-0536-09.

Andrew M. Shaw argued the cause for appellant (De

Tommaso Law Group LLC, attorneys; Andrew M. 

Shaw, on the briefs).

Eric Jason Lane argued the cause for respondent (Lane 

& Lane, LLC, attorneys; Eric Jason Lane, 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NOT FOR PUBLICATION WITHOUT THE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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Defendant J.Y.1appeals from a May 3, 2018 order denying his motion to 

suspend or terminate alimony based on the cohabitation of his ex-wife, plaintiff 

M.M., and her boyfriend, P.H. (Pat). Following a three-day plenary hearing, the 

family part judge determined Pat lived with plaintiff, but found insufficient 

evidence of cohabitation in accordance with N.J.S.A. 2A:34-23(n) to warrant 

suspension or termination of alimony. We affirm. 

We summarize the facts relevant to this appeal.2 Plaintiff and defendant 

were married in 1996, separated in 2008, and divorced in February 2013 by a 

Dual Judgment of Divorce (DJOD). They had a child together, J.Y., Jr. (John), 

born in 2005. Pursuant to the DJOD, defendant was required to pay alimony to

plaintiff of $500 per month for five years.3 

In 2011, plaintiff began a romantic relationship with Pat. Plaintiff and 

Pat had a child, A.H. (Anne), born around the time of the DJOD. Since 2013, 

 

1 We use initials and pseudonyms in accordance with Rule 1:38-3(f)(6) to 

protect the parties' privacy. 

2

 Defendant's counsel conceded during argument before the panel that the family 

court judge's fact-findings were accurate and consistent with the plenary hearing 

testimony. Defendant challenges the court's application of the facts to the law 

governing cohabitation.

3

 Defendant's alimony obligation concluded in February 2018. 
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John and Anne have lived with plaintiff. After Anne's birth, Pat spent

considerable time at plaintiff's house. 

In 2013, defendant heard rumors of plaintiff's pregnancy and that she had 

a child with Pat. Two years later, defendant hired a private investigator to 

confirm plaintiff's cohabitation with Pat. As part of his surveillance, the 

investigator took thousands of pictures of plaintiff's home during July and 

August 2016. 

Following the investigation, defendant filed a motion to suspend or 

terminate alimony based on plaintiff's cohabitation with Pat. Defendant also 

sought attorney's fees. The judge found defendant established a prima facie case 

of changed circumstances based on cohabitation and ordered the exchange of 

discovery and a plenary hearing.

The family part judge conducted a plenary hearing on the issue of 

cohabitation. The following is a summary of the key witnesses' testimony 

during that hearing.

Defendant's private investigator testified regarding his surveillance. The 

investigator explained Pat drove John to school in the morning, entered and 

exited the home freely, resided in the home when plaintiff was not present, 

barbequed in plaintiff's backyard, walked around plaintiff's yard shirtless, 
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performed outside household chores, including leaf blowing, and entertained 

guests with plaintiff. The investigator further testified that Pat's car was parked 

overnight at plaintiff's home "almost every night . . . ." 

Defendant also retained a cellphone expert, who issued a report detailing

the locations where Pat most often used his mobile phone to place calls or send 

text messages. The expert testified that Pat used his mobile phone at the 

following locations: twenty-nine percent of his cellphone usage originated from 

plaintiff's residence; forty-eight percent of his cellphone usage came from his

place of employment; and three percent of his cellphone usage was from his 

parents' house. The remaining twenty percent of Pat's cellphone usage 

originated from varied locations. 

Plaintiff also testified during the plenary hearing. According to plaintiff, 

she performed all household chores with occasional help from her father. She 

testified Pat would drive John and Anne to places such as daycare, school, and 

other activities. Plaintiff told the judge she did not have joint checking or 

savings accounts with Pat. Nor did she have any joint credit cards with Pat. 

Plaintiff rented a home from her parents and was solely responsible for the 

payment of rent.
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Following the hearing, the judge rendered an oral decision. The judge 

found the defendant's experts to be credible. Based on the testimony of 

defendant's cellphone expert, the judge concluded plaintiff and Pat were living 

together, "if not on a full-time basis, [then] very, very close to a full-time basis." 

The judge also made credibility findings as to the key witnesses. 

Regarding defendant's testimony, the judge believed "most" of his testimony. 

However, the judge found defendant was not credible on some issues, 

specifically when he learned about Anne's birth and the timing of his knowledge 

regarding where plaintiff and John lived and with whom they lived. The judge 

was particularly disturbed by defendant's tape recording of his son immediately 

prior to the hearing. On the recording, defendant is heard asking his son about

Anne despite having information about Anne from the private investigator. The 

judge found defendant "used that tape for one reason and one reason alone, and 

that was to use [it] in this litigation . . . to get financial benefit for [him]self and 

I'm troubled by it." 

Regarding plaintiff's credibility, the judge determined she was "fairly 

accurate" in her recollection and her testimony was "generally credible . . . ." 

However, he did not believe plaintiff's testimony regarding "the exact number 

of days that [Pat] [was] staying with her . . . ." 
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Initially, the judge thought plaintiff's refusal to answer simple questions, 

such as Anne's date of birth, was "bizarre." However, he reconsidered his 

position because "[w]e have [defendant] spending over $65,000 before trial, 

maybe $100,000 with a chance . . . of getting back $30,000 . . . from a woman 

who has been in and out of bankruptcy and owns nothing." The judge also noted 

"[w]e have cameras in this case that took 290,000 photographs of [plaintiff, Pat], 

her child with [defendant] and their child together." The intrusiveness of 

defendant's investigation of plaintiff, including seeking her gynecological 

records and Anne's medical records, caused the judge to understand plaintiff's 

refusal to answer questions during the hearing. 

Concerning Pat's testimony, while the judge found Pat to be a "difficult" 

witness and failed to give "straight answers[,]" he noted Pat did not embellish 

or lie in responding to questions. The judge understood Pat was displeased with 

being dragged into the litigation because Pat had to "hire a lawyer with money 

he doesn't have . . . ." The court did not believe Pat's testimony regarding the 

number of nights he stayed with plaintiff. However, based on his observation 

of Pat's demeanor on the stand, the judge generally "believed his testimony." He 

also found Pat "was dependent on his parents for almost all decisions made in 

his life . . . he has lived with his parents his entire life, works in the business
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with his father and his mother . . . his father and mother do all of the financial 

transactions for him," and he "get[s] $300 a week." 

The judge then addressed cohabitation under N.J.S.A. 2A:34-23(n), 

finding defendant did not establish cohabitation consistent with the statutory

factors. The judge found no evidence to suggest plaintiff and Pat co-mingled or 

intertwined financial obligations or that Pat contributed to plaintiff's living 

expenses. 

Based on the testimony, the judge also found no evidence plaintiff and Pat

shared household chores. Nor was there an enforceable promise from Pat to 

support plaintiff. There was no proof that plaintiff and Pat were viewed as a 

couple in public because they did not dine out or entertain. Similarly, there was 

no evidence plaintiff and Pat held themselves out as a couple in family or social 

circles. 

While the judge determined plaintiff and Pat lived together, under the 

totality of the evidence, he concluded they were not cohabitating in accordance 

with N.J.S.A. 2A:34-23(n). The judge explained there was insufficient evidence 

to determine whether the primary purpose for Pat living in plaintiff's home was 

to spend time with plaintiff or to spend time with Anne. Based on his findings, 

the judge denied defendant's motion and request for attorney's fees. 
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On appeal, defendant claims the judge erred in analyzing the cohabitation 

factors and declining to award attorney's fees. Defendant further argues the law 

governing cohabitation should be modified because it encourages a former 

spouse to live with a paramour, rather than remarry, to continue receiving

alimony. 

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

limited. "Whether an alimony obligation should be modified based upon a claim 

of changed circumstances rests within a Family Part judge's sound 

discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). A 

motion to terminate alimony is based on facts specific to each case, and we 

"must give due recognition to the wide discretion which our law rightly affords 

to the trial judges who deal with these matters." Ibid. (quoting Martindell v. 

Martindell, 21 N.J. 341, 355 (1956)). We owe substantial deference to the 

judge's findings of fact because of the family court's special expertise in family 

matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998). "[A] reviewing court 

should uphold the factual findings undergirding the trial court's decision if they 

are supported by adequate, substantial and credible evidence on the record." 

MacKinnon v. MacKinnon, 191 N.J. 240, 53–54 (2007) (quoting N.J. Div. of 

Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)). 
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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. Gayet 

v. Gayet, 92 N.J. 149, 154–55 (1983). 

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

couple has undertaken duties and privileges that are commonly associated with 

marriage." Konzelman v. Konzelman, 158 N.J. 185, 202 (1999). Where a 

supporting spouse seeks to suspend or terminate alimony because of the 

dependent spouse's cohabitation, the applicable test "is whether the relationship 

has reduced the financial needs of the dependent former spouse." Gayet, 92 N.J. 

at 150. Alimony may be suspended or terminated "only if one cohabitant 

supports or subsidizes the other under circumstances sufficient to entitle the 

supporting spouse to relief." Id. at 153–54.

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 
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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.

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).]
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The supporting spouse bears the burden of proving "cohabitation to the 

satisfaction of the court . . . ." Konzelman, 158 N.J. at 202. Once the supporting 

spouse makes such a showing, "a rebuttable presumption of changed 

circumstances [arises, which] shift[s] the burden to the dependent spouse to 

show that there is no actual economic benefit to the spouse or the cohabitant." 

Ozolins v. Ozolins, 308 N.J. Super. 243, 245 (App. Div. 1998). 

Here, the judge did not abuse his discretion when he determined plaintiff 

and Pat did not satisfy the statutory factors to find cohabitation. Nothing in the 

record suggested Pat helped plaintiff with her household expenses or chores, or

that he intertwined finances with her. At best, Pat provided limited financial 

assistance by purchasing formula, food, clothing, and diapers for Anne. There 

is nothing in the record to indicate Pat, who earned $300 per week working for 

his parents, made any financial contribution toward plaintiff's living expenses. 

Nor was there evidence in the record establishing that the couple's relationship 

was recognized in their social circles. Most importantly, there was no proof that

Pat and plaintiff lived together for any purpose other than to afford Pat an 

opportunity to spend time with Anne. Based on the substantial deference we 

owe to the judge's findings, we discern no basis to disturb the denial of

defendant's application to suspend or terminate alimony. 
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Defendant further argues the statute and case law governing cohabitation 

should be modified because the law encourages an ex-spouse to live with a 

paramour without formally receiving a marriage license, thus allowing an exspouse to continue receipt of alimony from the supporting spouse. Defendant 

contends that because plaintiff and Pat have a child together and live together, 

the situation is functionally equivalent to a marriage, requiring the suspension 

or termination of alimony. 

In arguing cohabitation and marriage are functionally the same, defendant 

relies on Quinn v. Quinn, 225 N.J. 34 (2016). In Quinn, the Supreme Court 

stated, "[t]he only distinction between remarriage and cohabitation is a license 

and the recitation of vows in the presence of others." Id. at 53–54. Defendant

relies on the quoted language in Quinn to support a finding of cohabitation in 

this case. Here, the judge found considerable evidence why the relationship 

between plaintiff and Pat was not similar to a marriage. 

Defendant argues it is de facto cohabitation when people live together and 

have a child together. Cohabitation extends beyond simply living together and 

having a child together. The statute requires analysis of several factors,

including finances, social perception, household chores, and other promises of 

support. Based on our review of the record, the judge properly analyzed the 
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cohabitation factors and did not abuse his discretion in determining plaintiff was 

not cohabiting. 

We also reject defendant's argument that the judge erred in denying his 

request for an award of attorney's fees. Rule 4:42-9 provides for the award of

attorney's fees in cases involving a family action pursuant to Rule 5:3-5(c). Rule

5:3-5(c) sets forth the following factors for determining whether to award 

attorney's fees:

(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; (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.

The purpose of a fee award is to permit parties in unequal financial 

circumstances to litigate on equal footing and provide the needier party with the 

financial means to litigate. Winegarden v. Winegarden, 316 N.J. Super. 52, 62 

(App. Div. 1998). A decision to award attorney's fees is within the discretion 

of the judge. Gotlib v. Gotlib, 399 N.J. Super. 295, 314-15 (App. Div. 2008). 
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Here, the judge properly assessed the factors governing defendant's 

application for attorney's fees in accordance with Rule 5:3-5(c). The judge 

concluded plaintiff would suffer financial hardship if she were forced to pay 

attorney's fees because she is "broke." Further, the judge found John and Anne 

would suffer if the court awarded fees because plaintiff had limited finances

compared to defendant. The court noted defendant paid his legal fees, which 

were approximately $65,000 before the start of the plenary hearing. 

In responding to defendant's bad faith argument, the judge found plaintiff 

made a "modicum of effort" to comply with defendant's discovery requests even 

though she was not represented by counsel at the time. Thus, he declined to 

award attorney's fees based on a finding of bad faith.

Having analyzed the factors for an award of counsel fees, we discern no 

abuse of discretion in the judge's denial of defendant's motion.

Affirmed.