In Cardali v. Cardali (A-25-22/087340) (Decided August 8, 2023), the Supreme Court of New Jersey clarified what is needed to obtain discovery in a motion seeking to terminate or suspend alimony payment. Under the court’s decision, a movant need not present evidence on all of the cohabitation factors in order to make a prima facie showing. If the movant’s certification addresses some of the relevant factors and is supported by competent evidence, and if that evidence would warrant a finding of cohabitation if unrebutted, the trial court should find that the movant has presented prima facie evidence of cohabitation.
Facts of Cardali v. Cardali
Plaintiff Suzanne Cardali and defendant Michael Cardali entered into a property settlement agreement (PSA), which was incorporated in their judgment of divorce in December 2006. The PSA provided that defendant’s obligation to pay plaintiff alimony would end upon her “cohabitation,” as defined by New Jersey law.
In December 2020, the Defendant filed a motion to terminate alimony, stating he believed that the Plaintiff and an individual named Bruce McDermott had been in “a relationship tantamount to marriage” for more than eight years, over the course of which they attended family functions and other social events as a couple, memorialized their relationship on social media, and vacationed together. The Defendant submitted the report of a private investigator indicating that the Plaintiff and McDermott were together on all of the 44 days that they were under surveillance, and that they were together overnight on more than half of those days. The investigator’s report included photographs of the Plaintiff and McDermott carrying groceries, bags of personal belongings, and laundry in and out of one another’s residences. The investigator stated the Plaintiff had access to McDermott’s home when McDermott was not at home.
The trial court denied the Defendant’s application, and the Appellate Division affirmed. discovery issues.
NJ Supreme Court’s Decision in Cardali v. Cardali
The New Jersey Supreme Court reversed. It held that a movant need not present evidence on all of the cohabitation factors set forth in Konzelman v. Konzelman, 158 N.J. 185, 202 (1999) — or in N.J.S.A. 2A:34-23(n), for cases in which the PSA was executed after the statute’s enactment — to make a prima facie showing. If the movant’s certification addresses some of the relevant factors and is supported by competent evidence, and if that evidence would warrant a finding of cohabitation if unrebutted, the trial court should find that the movant has presented prima facie evidence of cohabitation and should grant limited discovery tailored to the issues contested in the motion, subject to any protective order necessary to safeguard confidential information.
In its opinion, the court explained that it observed in Konzelman that “[c]ohabitation involves an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage,” including, but “not limited to, 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.” In 2014, the Legislature amended the alimony statute, which now prescribes a standard for trial courts to apply when they determine whether the record supports a finding of cohabitation, including factors similar to those identified in Konzelman.
The New Jersey Supreme Court next turned to the prima facie showing necessary for a court to order discovery in a dispute over cohabitation. Because the parties’ PSA was executed before N.J.S.A. 2A:34-23(n) was enacted, the appeal was governed by the definition of “cohabitation” and the factors identified in Konzelman. Nonetheless, the court addressed the requirements for a prima facie showing in both categories of cases.
“Nothing in Konzelman or N.J.S.A. 2A:34-23(n) suggests that the movant must present evidence relevant to all of the factors in order to set forth a prima facie case. Indeed, any such requirement would impose an unfair burden on a movant at the preliminary stage,” the court held. “Absent discovery, a movant is unlikely to have access to the financial records and other documents relevant to Konzelman’s financial factors—’intertwined finances such as joint bank accounts’ and ‘sharing living expenses’—or their statutory counterparts, N.J.S.A. 2A:34-23(n)(1) and (n)(2).”
The New Jersey Supreme Court went on to explain that any such requirement would impose an unfair burden on a movant at the preliminary stage. “Absent discovery, a movant is unlikely to have access to the financial records and other documents relevant to Konzelman’s financial factors — ‘intertwined finances such as joint bank accounts’ and ‘sharing living expenses’ — or their statutory counterparts, N.J.S.A. 2A:34-23(n)(1) and (n)(2),” the court explained.
Accordingly, the New Jersey Supreme Court concluded that if the movant presents a certification supported by competent evidence as to at least some of the relevant factors, and if that evidence, if unrebutted, would sustain the movant’s burden of proof as to cohabitation, the court should find that the movant has made a prima facie showing even if the spouse or civil union partner receiving alimony presents a certification contesting facts asserted by the movant. The court did advise that in fashioning its discovery order, the trial court should take appropriate steps to safeguard the privacy of the spouse or civil union partner receiving alimony and the individual with whom that person is alleged to be cohabiting. According to the court, those steps may include, but are not limited to limited to, constraints on the discovery to be provided to the movant and protective orders limiting access to the information subject to discovery.
In this case, the New Jersey Supreme Court found that the Defendant presented prima facie evidence as to several of the Konzelman cohabitation factors, and that evidence, if unrebutted, would warrant a finding of cohabitation. “Assuming, for purposes of the prima facie inquiry, that defendant’s contentions are correct, we view the evidence he presented to constitute a prima facie showing of cohabitation,” the court wrote. The court went on to find that the Defendant was entitled to limited discovery. It remanded the case back to the lower court for further proceedings.