As a follow up to my blog post of last week, this week the Appellate Division came down with yet another cohabitation decision. The case of Pizzuti v. Proctor was decided on March 31, 2011. In Pizzuti, the wife appealed from a decision wherein the trial court terminated her former husband’s alimony obligation of $100 per week on a finding of changed circumstances based on the wife’s cohabitation with an unrelated male.
At the trial level the husband submitted a myriad of proofs that the wife was cohabitating in support of his obligation to terminate alimony. His efforts were for naught however, because the fact that she was cohabitating went completely uncontested. Indeed, in response to the husband’s allegations, the wife stated as follows: "I will spare the Court the trouble of scheduling a plenary hearing because I admit that I do cohabitate with Mr. Argenzio at his home, located [in] Ramsey, New Jersey and have been since 1999." However, as I stated in my previous blog, proof of cohabitation is only half the battle. The next inquiry is whether, by virtue of the cohabitation, the wife was economically dependant on her new paramour. In New Jersey, the fact of economic dependence is presumed upon a showing of cohabitation, and it is incumbent the cohabitating spouse to prove otherwise.
To that end, the following facts were adduced at trial in support of the husband’s contentions: the former wife had increased her earnings of approximately $13,900 at the time of the divorce in 1998 to earning approximately $30,000 working part-time; she was receiving $900 per month of pension income from one of her former husband’s defined benefit funds; she admitted to $1,400 per month, attributable to Mr. Argenzio, which she alleged it would have cost her to rent an apartment in Ramsey. The former husband also established that his former spouse lived in two locations with Mr. Argenzio, a home in Ramsey, which is assessed at $472,800, and a condominium in Hollywood, Florida, purchased for $460,000, which has no mortgage, which they jointly owned. In addition, the husband showed that they have several jointly-titled bank accounts, that alimony checks were deposited on occasion in Mr. Argenzio's account, and they had at least one joint brokerage account. The husband also pointed out that the wife took a vacation in Italy in 2004; a cruise to Hawaii in April 2005; a vacation in the Caribbean in Spring 2006; a vacation in Napa, California; a trip to Aruba in 2007; and a vacation in New England in 2008.
In granting the husband’s application, the trial judge stated as follows:
…the key really is the marital standard. And I thought about granting a plenary hearing. And I had to look to see whether I felt that the defendant had made a strong enough case so that with some of the disputes of fact that are clearly in the record, are they sufficient to require a plenary hearing. And I think the answer is no.
There was, you know, with the amount of money that she's making herself, plus the pension, plus the other bank accounts, plus the credit from Mr. Argenzio, those things together I think certainly show that she is able to live at the marital standard without the alimony. So even though it was not an easy decision to come to, I did review the record on both sides and I am going to grant the application of Mr. Proctor to terminate his alimony obligation.
The Appellate Division agreed, ostensibly for the same reasons as expressed by the trial court. The Appellate Division seemingly found most compelling the fact that the wife and her paramour had developed a “marriage type” relationship, along with the economic dependence that typically accompanies it. Moreover, the Court found that the former wife’s marital lifestyle could be satisfied without the alimony - thereby obviating the need for payments from the former husband. By way of commentary on the issue, the court remarked that the trial judge was actually charitable to the wife in indicating that her present standard of living “satisfied” the prior lifestyle when the former appears to have surpassed the latter with the two residences that she now uses. The Appellate Division therefore affirmed the decision of the trial court terminating the former husband’s alimony obligations.