JEFFREY J. TEMPLE VS. CYNTHIA G. TEMPLE (FM-18-0710-03, SOMERSET COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0293-20
JEFFREY J. TEMPLE,
Plaintiff-Appellant,
APPROVED FOR PUBLICATION
v.
June 30, 2021
CYNTHIA G. TEMPLE, APPELLATE DIVISION
Defendant-Respondent.
________________________
Argued June 8, 2021 – Decided June 17, 2021
Before Judges Fisher, Gilson and Gummer.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County,
Docket No. FM-18-0710-03.
James P. Yudes argued the cause for appellant (James
P. Yudes, PC, attorney; James P. Yudes, of counsel and
on the briefs; Kevin M. Mazza and Melissa R. Barrella,
on the briefs).
Paul H. Townsend argued the cause for respondent
(Townsend, Tomaio & Newmark, LLC, attorneys; Paul
H. Townsend, of counsel and on the brief; Kevin W.
Ku, on the brief).
The opinion of the court was delivered by
FISHER, P.J.A.D.
The parties were married in 1986, have two now-emancipated children,
separated in 2001, and divorced in 2004. A January 29, 2004 dual judgment of
divorce incorporated their marital settlement agreement, which obligated
plaintiff Jeffrey Temple to pay defendant Cynthia Temple $5,200 per month in
permanent alimony. More than sixteen years later, in July 2020, Jeffrey moved
to terminate his alimony obligation, alleging Cynthia had either remarried or
was cohabiting with a man with whom she had been in a relationship for at least
fourteen years. The judge denied Jeffrey's motion, and he appeals arguing,
among other things, he was entitled to discovery and an evidentiary hearing . We
agree and reverse.
Alimony in New Jersey is, of course, governed by N.J.S.A. 2A:34-23,
which allows for the ordering of alimony during the pendency of a matrimonial
action or as part of a divorce judgment. The issuance of an alimony award,
however, does not always end the matter. In the seminal case of Lepis v. Lepis,
83 N.J. 139, 148 (1980), the Court recognized that an award may be modified or
terminated when a moving party presents a prima facie showing of changed
circumstances. The law also recognizes that alimony may be terminated or
modified when the supported spouse remarries, N.J.S.A. 2A:34-25, or cohabits
with another, Gayet v. Gayet, 92 N.J. 149, 154-55 (1983); N.J.S.A. 2A:34-23(n).
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And alimony may be terminated or modified pursuant to a consensual
agreement, see Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999); the
parties' marital settlement agreement recognized Cynthia's cohabitation as a
reason for terminating or modifying Jeffrey's alimony obligation. In moving for
relief, Jeffrey argued that Cynthia had remarried or was cohabiting with another.
In denying the part of Jeffrey's motion in which he argued cohabitation,
the judge relied extensively on Landau v. Landau, 461 N.J. Super. 107, 118-19
(App. Div. 2019). That reliance was misplaced. In Landau, we held that a
movant must present a prima facie case of cohabitation before obtaining
discovery, but we did not define what constitutes a prima facie case of
cohabitation. Landau's usefulness as a guide for such an analysis is, therefore,
limited.1
In denying the motion as to Jeffrey's claims that Cynthia either remarried
or is cohabiting, the judge also mistakenly weighed the parties' competing sworn
statements and accepted as true Cynthia's explanation of the facts demonstrated
by Jeffrey's moving papers. In fact, the opposite approach should have been
taken; Jeffrey was entitled to an assumption of the truth of his allegations and
1
For present purposes only, we assume Landau correctly held that a family
judge cannot compel discovery when only some of the indicia of cohabitation
have been presented.
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the benefit of all reasonable inferences to be drawn from the evidence he had
marshaled. When presented with competing certifications that create a genuine
dispute about material facts, a judge is not permitted to resolve the dispute on
the papers; the judge must allow for discovery and if, after discovery, the
material facts remain in dispute, conduct an evidentiary hearing. See Conforti
v. Guliadis, 128 N.J. 318, 328-29 (1992); Palmeri v. Palmeri, 388 N.J. Super.
562, 564 (App. Div. 2006); Winegarden v. Winegarden, 316 N.J. Super. 52, 56
n.1 (App. Div. 1998); Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976).
All that Jeffrey was required to show was a prima facie case of
cohabitation. What constitutes that showing has not been precisely defined since
the 2014 enactment of N.J.S.A. 2A:34-23(n). But we reject what seems to be
implied in the judge's decision that evidence favorable to movant must be
presented on all six statutory considerations contained in N.J.S.A. 2A:34-23(n).
To be sure, the statute requires judges to consider the items listed in the statute
when determining whether cohabitation has or is occurring. But whether, at the
motion stage, a prima facie case has been presented focuses more on the
essential meaning of cohabitation. Indeed, despite all the give and take in the
motion papers about Cynthia's living arrangements, the Legislature has
determined that cohabitation does not "necessarily" mean that the supported
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spouse and another "maintain a single common household." N.J.S.A. 2A:34-
23(n). Instead, the Legislature defined cohabitation as "a mutually supportive,
intimate personal relationship" in which the couple "has undertaken duties and
privileges that are commonly associated with marriage or civil union." N.J.S.A.
2A:34-23(n).
To be clear, we are mindful the Legislature mandates a court's
consideration of six factors in ultimately determining whether cohabitation is or
has been occurring:
(1) Intertwined finances such as joint bank accounts
and other joint holdings or liabilities;
(2) Sharing or joint responsibility for living expenses;
(3) Recognition of the relationship in the couple's social
and family circles;
(4) Living together, the frequency of contact, the
duration of the relationship, and other indicia of a
mutually supportive intimate personal relationship;
(5) Sharing household chores;
(6) Whether the recipient of alimony has received an
enforceable promise of support from another person
within the meaning of [N.J.S.A. 25:1-5].
But we reject the argument that evidence of all these circumstances must be
presented for a movant to establish a prima facie case of cohabitation. The
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statute contains a seventh item, which allows a court's consideration of "[a]ll
other relevant evidence," N.J.S.A. 2A:34-23(n)(7), thereby demonstrating the
statute does not contain the alpha and omega of what ultimately persuade a court
that a support spouse is cohabiting.
If – as the motion judge seems to have held – a movant like Jeffrey must
provide evidence on all six specific items to establish a prima facie case, then
we wonder whether any movant could ever clear that obstacle. For example, if
Landau correctly holds that compulsory discovery is not permitted until a prima
facie case is shown, how is it that the movant is to obtain and present direct
evidence that a former spouse and another have "intertwined [their] finances"?
People tend to treat financial information as confidential and do not normally
volunteer it to others, let alone former spouses obligated to pay them alimony.
Information that would be helpful in demonstrating intertwined finances is also
not available from financial institutions on a stranger's request. Demonstrating
that a former spouse and a paramour are "sharing" or bearing "joint
responsibility" for their living expenses is also something a movant is not likely
able to present without a right to compulsory discovery. Absent an opponent's
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voluntary turnover, 2 a movant will never be able to offer evidence about the
financial aspects referred to in N.J.S.A. 2A:34-23(n). And so, if, as the judge's
decision suggests, 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. This cannot be what the Legislature had in mind when it codified the
meaning of cohabitation sufficient to permit an alteration in an alimony
obligation.
The judicial task in determining whether a prima facie case has been
presented is far less mechanical. It 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." N.J.S.A. 2A:34-23(n). We are satisfied from our review of the
record – which is de novo because the judge conducted no hearing and made no
factual findings – that Jeffrey presented an abundance of evidence not only as
2
Here, Cynthia provided limited information for a short span of time that neither
dispels Jeffrey's contentions about that time nor at any time not covered by the
volunteered information.
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to whether Cynthia and William Boozan are married 3 but, if they are not,
whether they are or have been cohabiting.
Jeffrey has shown, based on what was available from social media and
from the way Cynthia and William Boozan presented in public, as well as
information from family members, that Cynthia and William are now or have in
the past resided together, that they have had a fourteen-year relationship, that
they have traveled together extensively, and that there are other "indicia of a
mutually supportive intimate personal relationship." See Konzelman, 158 N.J.
at 203 (holding, in a case decided prior to the enactment of N.J.S.A. 2A:34-
23(n), that to constitute cohabitation a relationship must be shown to be "serious
and lasting"); see also Quinn, 225 N.J. at 51.
3
We should note that Jeffrey's alternate claim that Cynthia has remarried –
based on William's social media posts that refer to Cynthia as his "wife" – is not
subject to the cohabitation analysis that takes up the lion share of this opinion.
Law and public policy favor a permanent termination of alimony when the
supported spouse remarries, N.J.S.A. 2A:34-25; Quinn v. Quinn, 225 N.J. 34,
49 (2016), even if the remarriage ends or is annulled, Flaxman v. Flaxman, 57
N.J. 458, 463 (1971). When claiming a remarriage, a movant need not show a
prima facie case of cohabitation. Remarriage alone suffices, and we are satisfied
that the moving and opposing papers present a genuine material dispute about
whether Cynthia remarried despite her denials. It remains only for the judge –
after an opportunity for discovery – to assess the proofs at an evidentiary hearing
and determine whether Cynthia has, in fact, remarried.
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Turning to the factual basis on which Jeffrey moved for relief, he certified
that approximately two years after the divorce, he noticed William Boozan's car
regularly outside the former martial home when picking up his children for
weekend visitation. Cynthia and William have acknowledged they were then in
a dating relationship. Jeffrey, obviously not being privy to their financial
arrangements and circumstances beyond what an outsider may see without
unlawfully prying, was otherwise unaware of the nature and extent of Cynthia
and William's relationship for years. But, after observing social media posts
that suggested more than a dating relationship, Jeffrey decided to hire a private
investigator.
This investigation produced considerable evidence of cohabitation or
perhaps even a marriage. Specifically, in numerous social media posts over the
span of the past seven years, William Boozan referred to Cynthia as "my wife":
• On March 12, 2012, he posted "[m]y wife and I
spent a week at the Fairmont, Mayakoba at the
end of February 2012" and "[m]y wife entertains
clients in Manhattan each week at the most-high
end restaurants, and she said nothing compares to
the Mayakoba experience." That same day, he
also posted about a restaurant in Mexico, stating
"[i]t made the evening for my wife, so I can't
complain."
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• On March 16, 2015, William posted on social
media that "[m]y wife and I spent a week at
Paradisus."
• In February 2016 he reviewed a Spring Lake
restaurant, stating: "[m]y wife and I had dinner
here on Valentine's weekend." He later added:
"[m]y wife and I have been here several times."
• On February 16, 2016, William posted about "the
second trip to Paradisus for my wife and I in
January."
• In August 2016, he reviewed a Point Pleasant
restaurant, stating "[m]y wife and I have been
going here all summer, and it is what we want for
every weekend."
• In November 2016, William said in a social
media post that "[m]y wife and I went here [a
New York restaurant] for my birthday."
• In April 2017, William and Cynthia traveled to
Ireland, and he posted: "[m]y wife and I had such
a great time here."
• On March 5, 2018, William posted that "[m]y
wife and I had a superb experience" during a
vacation in Florida.
Those posts not only reveal that William Boozan referred to Cynthia as his
"wife," but they also reveal, as do the following social-media posts, that he and
Cynthia traveled and participated in events extensively:
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• In May 2012 Cynthia and William Boozan
attended the Kitchen Spring Gala together.
• In the summer of 2012, William reported in a
publication put out by The Pingry School that he
and Cynthia attended a reception in New York
City.
• In January 2013, Cynthia and William attended
an art exhibition in New York.
• In November 2013, they attended a cancer
research event at the Park Avenue Armory in
New York City.
• In September 2014 they attended William's class
reunion.
• In May 2015 they attended another Kitchen
Spring Gala.
• In March 2018, they attended a political event
held by Cynthia's alma mater.
• In January 2019, they attended a Broadway show.
Other social-media posts revealed how often Cynthia and William were
together for holidays and family functions:
• On Father's Day, 2016, Cynthia posted a picture
of her celebrating the holiday with William
Boozan.
• In November 2017, Cynthia posted a picture of
herself, her son, and William celebrating
William's birthday.
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• On Father's Day, 2019, she posted a photo of
herself and William celebrating the holiday and
referring to him as a "very special gentleman."
Jeffrey also demonstrated that Cynthia spent a considerable amount of
time with William at his Spring Lake home, which he purchased in 2016, as
suggested by photos of Spring Lake she posted on her Instagram account in the
Summer of 2016, November 2016, January 2017, September 2018, November
2018, April 2019, and February 2020.
Jeffrey presented other evidence that not only suggested cohabitation but
also a marriage. As noted, William Boozan repeatedly referred to Cynthia in
social media posts as his "wife," and Jeffrey provided in his motion papers a
publication issued by a Catholic church in Spring Lake that listed Cynthia, in a
Mother's Day's message, as "Cynthia Temple Boozan."
Jeffrey also presented evidence that Cynthia sold their former marital
home in 2017 and purchased a New York City apartment. William Boozan
acknowledged in his August 2020 certification that he gave up his New York
City apartment "a few months" earlier in 2020. He presumably has, however,
continued to operate his medical offices on Long Island, quite a commuting
distance from Spring Lake, absent some other, closer abode. This information
certainly supports an inference that Cynthia not only has resided with William
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in his Spring Lake home,4 but also that he has resided in Cynthia's New York
City apartment.
In fact, surveillance conducted by Jeffrey's private investigator discovered
Cynthia was living full-time in William's Spring Lake home between April and
June 2020. Cynthia admitted this, though she claims she moved to Spring Lake
only temporarily when she received a March 24, 2020 notice from her apartment
manager that a resident in her building had become infected with COVID-19.5
Jeffrey produced photos obtained by his private investigator that depict Cynthia
engaging in household responsibilities, such as bringing groceries into William's
Spring Lake home, performing other household shopping trips, and retrieving
and opening mail. Cynthia is seen in these photographs using a key or entering
the Spring Lake residence through the garage keypad access code. Even the
financial records volunteered by Cynthia and William memorialize transactions
by Cynthia on several occasions in early 2020, suggesting the two were together
in Spring Lake on the weekends before the pandemic, and evidence of
4
Jeffrey certified that their son had referred to his mother's "Spring Lake place."
5
In her opposing certification, Cynthia claimed she called William Boozan in
a "total panic" when the COVID pandemic broke out in New York City and she
"literally threw some clothes in a bag, grabbed [her] laptop and work papers and
went directly to Spring Lake."
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transactions William made in New York City near Cynthia's apartment in that
same time frame.
Also telling is the fact that on June 30, 2020, Jeffrey's attorney wrote to
demand that, with the filing of the motion and the pending legal dispute, they
preserve "any and all records relevant and potentially relevant to all litigation in
this matter." Cynthia and William responded by scrubbing their social media
accounts and deleting many of the posts referred to above. This also gives rise
to an inference in Jeffrey's favor.
In opposing Jeffrey's motion, Cynthia filed a certification in which she
attempted to refute or explain all the information he presented. She claimed –
as noted above – that she spent months "sheltering" in the Spring Lake home
because of the COVID pandemic and out of concern for what she referred to ,
without clarity or amplification, as "race riots" in New York. She denied that
she and William Boozan were or are married or that they cohabit, claiming they
are only "good friends."
There may be non-cohabitation explanations for all that Jeffrey has
presented, but the only question for the judge when considering the motion
papers was whether Jeffrey presented enough to entitle him to discovery and an
evidentiary hearing. We are satisfied he did.
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We cannot emphasize enough that judges must be cognizant that most
information relevant to cohabitation is not readily available to movants. These
motions are akin to summary judgment motions filed prior to the completion of
discovery. When, at that stage, crucial facts are within the sole knowledge of
the other party, we have long recognized from the earliest days of our current
court system, see, e.g., Templeton v. Bor. of Glen Rock, 11 N.J. Super. 1, 4
(App. Div. 1950), and since, see, e.g., Mohamed v. Iglesia Evangelica Oasis De
Salvacion, 424 N.J. Super. 489, 499 (App. Div. 2012), the impropriety of
granting summary judgment in those circumstances. Although it is true family
judges should be careful not to permit a fishing expedition into a supported
spouse's private affairs on a weak claim, judges must also remain aware that
movants like Jeffrey do not have access to much of the information relevant to
a dispute about cohabitation. In civil matters, courts often quite correctly deny
or continue summary judgment motions until discovery is completed. See, e.g.,
Bilotti v. Accurate Forming Corp., 39 N.J. 184, 206 (1963); Mohamed, 424 N.J.
Super. at 499; Templeton, 11 N.J. Super. at 4. Contrary to that well-established
approach, Jeffrey was put to the burden of demonstrating the factual sufficiency
of his claim when most of the relevant information remains in Cynthia's
possession.
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In addition, the judge too severely scrutinized Jeffrey's allegations while
deferring to Cynthia's explanations. The judge, for example, seems to have
accepted Cynthia's assertion that: she and William Boozan are not married even
though there is no dispute that William referred to Cynthia as his "wife" 6; she
resided with William Boozan only for the three-month period in which she left
New York around the time the pandemic broke out 7; and she and William
Boozan are only "good friends." Jeffrey – not Cynthia – should have been given
the benefit of the doubt and all favorable inferences to be drawn from the
evidence so far available without discovery. Jeffrey presented a prima facie case
of cohabitation – and a genuine factual dispute about whether Cynthia and
6
In rejecting Jeffrey's contention that the parties would seem to be married, the
judge concluded that "[s]ocial media posts are not reliable" even though William
Boozan acknowledged he referred to Cynthia in these posts as his "wife," which
the judge then excused by saying "[a]nyone can call someone their wife even if
they are simply dating in a relationship." The judge rejected Jeffrey's claim of
a marriage by stating that Cynthia "certifies she is not married to Dr. Boozan,
and [Jeffrey] has failed to present any credible evidence to the contrary" because
he did not present a "marriage certificate or any photograph memorializing the
suspected legal union." Clearly, the judge erred by assuming Jeffrey's evidence
was not true and by assuming Cynthia's general demurrer was enough to defeat
Jeffrey's claim.
7
Without hearing any testimony – let alone allowing discovery – the judge
decided Cynthia resided with William Boozan between April and June 2020 "out
of necessity and concern for her health and safety."
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William Boozan are married – and these issues should now be developed
through discovery and an evidentiary hearing. 8
Reversed and remanded for discovery 9 and an evidentiary hearing. We do
not retain jurisdiction.
8
We note that the parties' marital settlement agreement preceded the enactment
of N.J.S.A. 2A:34-23(n) but the allegations focus on Cynthia's relationship with
William Boozan after the statute's enactment. To the extent there are differences
between how the statute defines cohabitation and how that concept was defined
by pre-statutory law, we do not opine at this time about whether Cynthia's
alleged cohabitation should be considered in light of the former or the latter.
See Spangenberg v. Kolakowski, 442 N.J. Super. 529, 537-39 (App. Div. 2015).
Like the other relevant circumstances, the factual record has not been
sufficiently developed to allow for any clear determination as to whether what
the parties intended when they agreed many years ago that cohabitation would
allow for the termination or modification of alimony was the standard discussed
in cases like Konzelman or whether they intended that cohabitation would be
determined by the law in effect when the alleged cohabitation occurs.
9
Shortly before oral argument in this appeal, Jeffrey moved for a limited
remand or to supplement the record on appeal to include "a Whitepages report"
that suggests Cynthia's address is the same as William Boozan's Spring Lake
address. We have denied that motion by separate order, and we have not
considered this information in reaching our decision in this appeal.
Notwithstanding, our ruling on the motion should not be interpreted as
precluding further investigation and discovery into that particular item or any
other relevant information following today's remand.
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