‘Temple’ of Doom: The Prima Facie Showing of Cohabitation Remains a Mystery
This Article Appeared in the New Jersey Law Journal on December 16, 2022. It was co-authored by Matheu D. Nunn, Jeralyn L. Lawrence, Carolyn N. Daly, Sheryl J. Seiden, Debra S. Weisberg, and Robin C. Bogan.
This is not an article about the titular star of Steven Spielberg’s Indiana Jones, but maybe it should be. Only Harrison Ford’s character would be able to navigate the patchwork of decisions that incorrectly and inconsistently construe the prima facie burden needed to establish cohabitation under N.J.S.A. 2A:34-23(n). Indeed, notwithstanding the opinion in Temple v. Temple, 468 N.J. Super. 364 (App. Div. 2021), courts continue to misapply N.J.S.A. 2A:34-23(n) when determining whether a litigant presented a prima facie showing of cohabitation. This showing is the first hurdle for spouses who seek termination or suspension of alimony based upon cohabitation. Unfortunately, the post-Temple decisions continue to misapply N.J.S.A. 2A:34-23(n) by setting an artificially high prima facie burden and ignoring the crux of Temple’s holding: that the prima facie burden should not be an insurmountable obstacle akin to Indiana’s travails.
To fully understand “cohabitation,” a brief history is required. In 1983, the Supreme Court decided Gayet v. Gayet, 92 N.J. 149 (1983). The Court held that a change in circumstances based upon cohabitation results if: “(1) the third party contributes to the dependent spouse’s support, or (2) the third party resides in the dependent spouse’s home without contributing anything toward the household expenses.” Id. at 153. Thereafter, the Court decided Konzelman v. Konzelman, 158 N.J. 185, 202 (1999), a case that included an agreement with a cohabitation-termination provision. The Court held: “[c]ohabitation involves an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage. These can include … living together, intertwined finances such as joint bank accounts, sharing living expenses and household chores, and recognition of the relationship in the couple’s social and family circle.” Id. at 202. Later, in Quinn v. Quinn, 225 N.J. 34, 49-50 (2016), the Court held that once alimony is terminated pursuant to a Konzelman provision, it may not be reinstated. Notably, in dissent, Justice Albin wrote: “Anti-cohabitation clauses under Konzelman permit the forfeiture of the right to alimony even if the cohabiting ex-spouse receives no financial support from the person with whom she resides.” Id. at 60 (emphasis added).
In September 2014—after Konzelman, but before Quinn—the Legislature enacted N.J.S.A. 2A:34–23(n), which provides, in part:
When assessing whether cohabitation is occurring, the court shall consider the following:
- Intertwined finances such as joint bank accounts and other joint holdings or liabilities;
- Sharing or joint responsibility for living expenses;
- Recognition of the relationship in the couple’s social and family circle;
- Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship;
- Sharing household chores;
- Whether the recipient of alimony has received an enforceable promise of support from another person within the meaning of subsection h. of R.S.25:1-5; and
- 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.
The legislative history to N.J.S.A. 2A:34-23(n) supports a conclusion that the statute is based on Konzelman. That history reveals two competing pending bills that were proposed. The bill adopted by the Legislature mirrors the Konzelman factors. The other bill, which included two Assembly proposals, (A845 and A971); and one Senate proposal, (S488), provided that alimony would “modify, suspend, or terminate” alimony “only if … the economic benefit inuring to the payee is sufficiently material to constitute a change of circumstances. That later bill—the one that did not make it into law—more closely tracks Gayet.
In 2019, the court decided Landau v. Landau, 461 N.J. Super. 107, 118 (App. Div. 2019), where it held that “there is no question but that a prima facie showing of cohabitation can be difficult to establish.” The court cited Konzelman for that proposition, ignoring that much of the proofs from Konzelman were uncovered through discovery and a trial. Thereafter, the court decided Temple, 468 N.J. Super. at 370-71, and limited Landau’s impact: (i) “[i]t 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”; (ii) “if … a movant must check off all six boxes to meet the burden of presenting a prima facie case, a finding of cohabitation will be as rare as a unicorn”; and (iii) “[a]bsent an opponent’s voluntary turnover, a movant will never be able to offer evidence about the financial aspects referred to in N.J.S.A. 2A:34-23(n).”
Against that backdrop and accepting that the statute is based on Konzelman and with the precedent established by Temple, the following post-Temple decisions are flawed in their assessment of the required prima facie showing. In Manley v. Manley, No. A-0408-20 (App. Div. Jan. 14, 2022), the court accepted the following facts:
Plaintiff provided evidence of defendant’s use of [her paramour]’s wholesale club card and country club membership card. Plaintiff also submitted photographs of defendant bringing groceries to [her paramour]’s home. [P]laintiff provided Facebook postings showing defendant and their children travelling with [her paramour] and his daughter, as well as photographs of [her paramour] attending sporting events for plaintiff’s children. Plaintiff also certified that defendant brought [her paramour] to family reunions and other family events. Defendant’s paramour also moved to the same town as defendant and their family/friends recognized their relationship, as did their social media accounts.
The trial court initially concluded that plaintiff presented “a showing of recognition of the relationship … as well as frequent contact” and granted plaintiff the right to proceed with discovery. However, defendant filed a motion for reconsideration and the trial court reversed its decision. The trial court acknowledged, in reversing its prior decision, that a movant need not “check off all six boxes” to meet the prima facie burden, but the trial court concluded that there was no evidence “of intertwined finances, joint living expenses, sharing of household chores, or an enforceable promise of support.” The Appellate Division affirmed, noting that the “evidence in the matter on appeal is very different from the evidence presented in Temple. Here, plaintiff failed to present ‘an abundance of evidence’ that defendant and [her paramour] were cohabitating.” The Panel’s reliance on the reference to an “abundance of evidence” from Temple misconstrues the core holding from Temple, and incorrectly assumes the legal reasoning of Temple hinged on “abundant” pre-discovery facts.
In Charles v. Charles, No. A-2412-20 (App. Div. May 5, 2022), the court failed to find a prima facie showing because the movant had a “lack of evidence as to the financial factors … [,]” notwithstanding the plaintiff admitted that she had been dating her paramour since 2014 and became engaged in 2019. Charles, at *3. In affirming the decision, the Appellate Division noted that the payee and her fiancé maintained separate households, ignoring that N.J.S.A. 2A:34-23(n) provides that a court “may not find an absence of cohabitation solely on the grounds that the couple does not live together on a full-time basis” and also discounted the proofs because the movant failed to provide a private investigator’s report. The Panel also, like in Manley, noted the lack of “overwhelming evidence” of cohabitation. Charles represents another case in which the court ignored the crux of Temple’s legal reasoning (i.e., that a prima facie showing is not so difficult to make it as rare as a “unicorn”).
In Cardali v. Cardali, No. A-1624-20 (App. Div. June 27, 2022), the defendant demonstrated that plaintiff was in an eight-year, committed relationship that included: attending family functions; family photos; holding themselves out as a couple; vacationing together; accessing each other’s residences; grocery shopping; doing laundry in each other’s homes; being together on each of the days that the private investigator observed them; and spending the night together on more than half of those days. The court, citing Landau, 461 N.J. Super. at 118, affirmed the trial court’s denial of the defendant’s motion. The panel ignored that the decision in Temple substantially tempered Landau’s impact on cohabitation motions. In doing so, the court concluded: “defendant provided no evidence to counter plaintiff’s assertion there was no financial entanglement between the two and that [the boyfriend] maintained his own residence. The record also was devoid of evidence [the boyfriend] made any enforceable promise of support to plaintiff.” Cardali, at *16-17 (emphasis added). In summary, the decision hinged on the absence of proofs to which the movant did not have access and are not required under Temple.
In fact, it appears that (other than Temple) only one cohabitation decision opted for the right approach. In Smiley v. Sheedy, No. A-2693-20 (App. Div. May 11, 2022), the record established:
a six-year dating relationship … , a private investigator’s surveillance report, an admission from [the payee] that she and [her paramour] physically cohabited for a period of time … , social media posts demonstrating they hold themselves out as a couple and share holidays, and an announcement regarding the motive behind [the payee]’s relocation to South Jersey.
While the trial court declined to find a prima facie showing of cohabitation, the Appellate Division appropriately reversed and remanded for discovery and a plenary hearing. The approach by the Smiley panel (and Temple) is how all cohabitation motions should be decided at the initial stage.
The Family Bar shared a collective “sigh” of relief with publication of the Temple decision. In practice, that decision has done little to cure the problem created by Landau. Courts continue to cite the absence of financial proof in the movant’s motion and even the Landaudecision itself for the notion that cohabitation is difficult to prove. In addition, some courts discount private investigative reports, while others credit them; some courts provide weight to an engagement, while others ignore it; and still other decisions give weight to the cohabitants’ access to each other’s homes, while others ignore it. Perhaps worst of all, courts now look at Temple—the overwhelming facts from Temple—as the minimum proof needed to establish a prima facie showing of cohabitation. The authors of this article hope that the Supreme Court provides clarity because in the absence of that guidance we will continue to receive conflicting decisions and litigants are likely to engage in more intrusive behavior to obtain proofs to establish a heightened prima facie standard that is almost impossible to meet. This result cannot be what the Legislature envisioned or our courts desire.
Matheu D. Nunn is a partner of Einhorn, Barbarito, Frost & Botwinick, P.C., where he co-chairs both the family law department and general appellate practice. Jeralyn L. Lawrence is the founding partner of Lawrence Law, current New Jersey State Bar President (NJSBA), former chair of the Family Law Section of the NJSBA (FLEC), and past-president of AAML-NJ. Carolyn N. Daly is the founding partner of Daly & Associates, and current president of AAML-NJ. Sheryl J. Seiden is the founding partner of Seiden Family Law, former chair of FLEC, and Treasurer of AAML-NJ. Debra S. Weisbergis a founding partner of Donahue, Hagan, Klein & Weisberg, and former president of the Morris County Bar Association (MCBA). Robin C. Bogan is a founding partner of Pallarino & Bogan, former MCBA president, and former chair of FLEC.