Mennen v. Mennen

2019 WL 1468745 (2019)

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Nature of the Case

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Facts

H and W were divorced after a thirteen-year marriage. As part of a settlement agreement, H agreed to pay W $5500 monthly in permanent alimony, plus annual increases based upon the CPI. H continued to pay W's reasonable unreimbursed medical and dental expenses; provided her with health insurance; maintained a life insurance policy to secure H's alimony obligation; and paid for her lease acquisition fee. As part of the agreement, the alimony would be terminated upon the happening of various events. Paragraph 2 states: Alimony shall cease and terminate at the earliest to occur of the Husband's death, the Wife's death, or the Wife's remarriage. In the event of the Wife's cohabitation in the future with an unrelated person in a relationship tantamount to marriage after the sale of the property referred to in Article IV Paragraph 14 above, the Husband's obligation to pay alimony to the Wife may be revisited in accordance with the principles set forth in Gayet v. Gayet, 92 N.J. 149, 456 A.2d 102 (1983) and its progeny. H claims that W maintains 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. H has submitted uncertified private investigator's report that stated J.K. was present eighty-eight percent of the time during thirty-two of the investigator's visits spanning a four-and-a-half month period. The surveillance was conducted 'early morning,' 'late evening,' and during the 'middle of the night'; during the week, weekends, and holidays; and on consecutive and alternating days. J.K. would leave W's residence between 6:15 a.m. and 6:30 a.m. The report states that J.K. has a garage door opener to W's home and that he does not own or rent property in New Jersey. He uses a post office box at a United Parcel Service in Chester as his address and on his driver's license, and he listed W's address as his residence on two occasions. H's theory is supported by Facebook pictures. J.K. has used the marital residence on two occasions between 2008 and 2016 on credit issues. J.K. and W share a Lowe's card, and a Capitol One card. W certified that J.K. resides with his brother in Belvidere, a forty-five-minute drive from her home; they have been dating since 2009; and they have been photographed together at social events. J.K. lost his home to a short sale in 2015, sold his Andes, New York home, and filed for bankruptcy in January 2014. He has a garage door opener but no keys. J.K. stayed with W while performing contracting work 'to save nearly half the drive' to his brother's home. J.K. used W's vehicle once during the surveillance period. W denied having a cohabitation arrangement with him. J.K. did not list any co-debtors on Schedule F, which requires disclosure of all unsecured creditors having non-priority claims, such as credit cardholders. The Lowe's and Capitol One credit cards were listed and did not name W as a co-debtor, and she was not listed on Schedule H of his bankruptcy petition, which mandates disclosure, not only of co-debtors but co-signors and guarantors as well. No evidence was provided to support the investigator's conclusion that J.K. listed the marital residence as his address on 'official documents.' W argues that 'none of the pulls yielded any items addressed to or seemingly belonging to J.K.,' and that '[t]he majority of the trash collected consisted of diapers, a significant amount of takeout food, credit card statements belonging to the H's daughter and feminine hygiene products.' The investigator's report was 'stale,' being eight months old by the time the motion was filed. The court denied H’s motion to compel discovery and suspend alimony payments. H appealed.