THOMAS J. KELLY VS. ELIZABETH A. BRANNIN (FM-14-0495-05, MORRIS COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3997-18T1
THOMAS J. KELLY,
Plaintiff-Respondent,
v.
ELIZABETH A. BRANNIN,
Defendant-Appellant.
________________________
Argued telephonically June 17, 2020 –
Decided July 15, 2020
Before Judges Koblitz and Gilson.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FM-14-0495-05.
Amy Frances Gjelsvik argued the cause for appellant
(Paris P. Eliades Law Firm, LLC, attorneys; Amy
Frances Gjelsvik, on the briefs).
James Clark Jensen argued the cause for respondent
(Laufer, Dalena, Jensen, Bradley & Doran, LLC,
attorneys; James Clark Jensen, of counsel and on the
brief; Kory A. Crichton, on the brief).
PER CURIAM
Defendant Elizabeth A. Brannin appeals from a March 8, 2019 order
entered after an evidentiary hearing. Judge Noah Franzblau found she had been
cohabitating since November 25, 2015 and eliminated her alimony as of that
date, pursuant to the parties' marital settlement agreement (MSA). We affirm
substantially for the reasons articulated in Judge Franzblau's March 8, 2019 oral
opinion, deferring to his credibility assessments as we must. Cesare v. Cesare,
154 N.J. 394, 412 (1998).
The parties, who have no children, were married in 1989. In their MSA,
which was incorporated into their 2005 judgment of divorce, the parties agreed
that plaintiff would pay defendant permanent alimony of $1700 per month. The
alimony provision also stated that alimony would cease if defendant cohabitated
or remarried.
In July 2017, plaintiff Thomas J. Kelly filed a motion to terminate alimony
contending that defendant was cohabitating with Jeffrey Kastner, whom she
acknowledged living with since November 2015. The parties and Kastner
testified at the hearing. Judge Franzblau found plaintiff to be credible and
defendant and Kastner to be incredible. The judge found that defendant and
Kastner rented a one-bedroom apartment in Cary, North Carolina and lived there
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for twenty months from November 25, 2015 to June 2017. Thereafter, they
moved back to New Jersey and lived together in a home, that Kastner had
inherited from his deceased brother, for an additional twenty-one months by the
time of the hearing, sharing one bathroom and all living expenses. Although
generally reclusive, they attended a wedding together. Both defendant and
Kastner testified that they were platonic roommates who lived together as
friends out of convenience. Neither one was employed.
Relying on the definition of cohabitation found in Konzelman v.
Konzelman, 158 N.J. 185, 202 (1999), which both parties acknowledge is the
relevant standard, Judge Franzblau explained his credibility determinations,
finding plaintiff's "credibility was bolstered by his calm demeanor, his attempts
to answer all questions directly and completely, the consistency between his
testimony and supporting documentation, and by his potential admissions
against interest." In contrast, the judge found defendant and Kastner's testimony
incredible, finding the two, who had been sequestered during trial, contradicted
each other, were "combative," "defied logic" and their "testimony [was]
unsupported by documentary evidence." The judge gave numerous examples of
their testimony that lent support to these findings.
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On appeal, defendant makes two arguments, contending that the trial
judge erred in holding a plenary hearing because another judge earlier found
plaintiff had failed to make a prima facie showing of cohabitation, and that the
judge abused his discretion in finding that defendant was cohabitating with
Kastner.
In a February 2, 2018 order another judge found insufficient prima facie
evidence of cohabitation had been presented "given the rambling context of the
exhibit to the [c]ertification of Jeffrey Kastner," but nonetheless ordered
discovery, after which that judge ordered a plenary hearing. A prima facie case
of cohabitation should be demonstrated prior to discovery proceeding. Donnelly
v. Donnelly, 405 N.J. Super. 117, 131-32 (App. Div. 2009). The order also
reflected that defendant conceded she lived with Kastner. Although the order
was inartfully worded, it makes no practical sense to reverse the detailed ,
thoughtful conclusions of a trial judge, based on a full plenary hearing due only
to mistaken wording of a preliminary order. Such a decision would elevate form
over substance, requiring the parties to bear the expense of a new hearing, which
would undoubtedly result in the same outcome.
Finally, defendant argues that the judge was presented with insufficient
evidence of an "intimate romantic relationship" or intertwined finances. Kastner
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and defendant lived together in two states located a significant distance apart for
lengthy periods of time. Judge Franzblau had the opportunity to observe their
demeanor and assess their credibility when they both denied a romantic
relationship or intertwined finances. We accept his assessment for the sound
reasons expressed in Judge Franzblau's decision. "Because a trial court 'hears
the case, sees and observes the witnesses, [and] hears them testify,' it has a better
perspective than a reviewing court in evaluating the veracity of witnesses."
Cesare, 154 N.J. at 412 (alteration in original). We defer to family court
factfinding because of its "special jurisdiction and expertise in family matters."
Id. at 413.
Affirmed.
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