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A showing of cohabitation creates a rebuttable presumption of changed circumstances shifting the burden to the dependent spouse to show that there is no actual economic benefit to the spouse or cohabitant. The court must focus on the cohabitant 's economic relationship to discern "whether one 'subsidizes the other.' Whether this economic benefit exists requires a fact-intensive inquiry by the trial judge.
Plaintiff Nancy M. Mennen and defendant John H. Mennen were divorced in January 2004, after a thirteen-year marriage. As part of their settlement agreement (SA) incorporated into the judgment of divorce, defendant agreed to pay plaintiff $5500 monthly in permanent alimony, plus annual increases based upon the Consumer Price Index percentage. However, in Article v, Paragraph 2 of the SA, it was agreed that the defendant’s obligation to pay alimony to plaintiff may be revisited in the event of the plaintiff’s cohabitation in the future with an unrelated person in a relationship tantamount to marriage. Defendant filed a motion to compel discovery and suspend alimony payments, contending that plaintiff has maintained a longstanding relationship with her significant other, J.K., in which the two of them allegedly interact and hold themselves out as the equivalent of spouses. Following oral argument, the Family Part judge denied defendant's motion to compel discovery and suspend alimony payments, holding that the defendant failed to meet his burden to show a prima facie case of cohabitation, including any proof of cohabitation. Defendant appealed, arguing that the evidence of plaintiff and J.K. having a long-term relationship and residing together was prima facie evidence of changed circumstances, and that there was substantial credible evidence to justify discovery. The defendant further argued that he presented substantial, credible evidence of a prima facie case of cohabitation to justify discovery.
The court noted that alimony may be revised and altered by the court from time to time as circumstances may require. To make such a modification, a showing of “changed circumstances” was required. A prima facie showing of cohabitation would constitute sufficient changed circumstances under Lepis. Gayet v. Gayet, 92 N.J. 149, 154-55, 456 A.2d 102 (1983). Alimony may be modified when the third party contributed to the dependent spouse’s support, or the third party resided in the dependent spouse’s home without contributing anything toward the household expenses. Applying these principles in the case at bar, the court held that the present record lacked any evidence that the plaintiff and J.K.’s finances were intertwined or that plaintiff was financially dependent upon her significant other. The court agreed with the Family Part judge that defendant failed to establish a prima facie case of cohabitation. The court noted that there was no proof of joint bank accounts or other joint asset holdings; no proof that the couple share living expenses; and no proof of any enforceable promise of support. As such, the court concluded that the record amassed by the defendant was reasonably deemed insufficient by the motion judge to rise to the level of a prima facie case that would justify the additional discovery he sought.