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Case Law Review for the Week of June 23, 2014

Hoffman v. Hoffman, Appellate Division, Unreported Decision (June 26, 2014): In a rather straightforward appeal, the Appellate Division affirmed the trial court's denial of the Defendant's motion for recusal, citing case law to support the decision that recusal is left to the sound discretion of the trial judge, with recusal being appropriate when there exists any reason which would preclude a fair and equitable hearing or ruling or would reasonably lead the parties to believe so. However, the Appellate Division was clear that bias is not shown merely from past adverse rulings against a party.

D'Alessandro v. D'Alessandro, Appellate Division, Unreported Decision (June 26, 2014): In this appeal, the dependent spouse, in a post-judgment application for a reduction of support made by the payor, challenges the Court's determination that the payor proved a change in circumstances sufficient to warrant a reduction in his support obligations. Amongst other arguments and reasons for affirming, the Appellate Division noted that the dependent spouses' argument that the reduction in income was voluntary was not persuasive. The payor had voluntarily sold a share of his business; however, it was done in an attempt to avoid bankruptcy, which, the court held, is not analogous to an individual allowing his business "to continue to diminish unchecked while bemoaning his fate." Aronson v. Aronson, 245 N.J. Super. 354, 360-61 (App. Div. 1991). The Court further emphasized that an obligee "is not necessarily immunized from the ill fortune of" the obligor. Foust v. Glaser, 340 N.J. Super. 312, 318 (App. Div. 2001).

Diaz v. Diaz, Appellate Division, Unreported Decision (June 26, 2014): In this appeal, the Appellate Division considered a trial court's ruling to modify alimony based upon the dependent spouse's cohabitation with her paramour. In affirming the trial court's decision, the Appellate Division emphasized that intertwined finances and/or economic contribution from the cohabiter and/or full-time cohabitation is not necessary for a finding of cohabitation and a reduction in support. "'[A] showing of cohabitation creates a rebuttable presumption of changed circumstances shifting the burden to the dependent spouse to show that there is no actual economic benefit to the spouse or the cohabitant.'" Reese v. Weis, 430 N.J. Super. 552, 570 (App. Div. 2013) (quoting Ozolins, supra, 308 N.J. Super. at 245) (emphasis added). Thus, "when faced with the circumstance of cohabitation of a dependent spouse, the court must focus on the economic relationship of the cohabitants to discern whether one cohabitant 'subsidizes the other.'" Id. at 571 (quoting Boardman v. Boardman, 314 N.J. Super. 340, 347 (App. Div. 1998)). "Modification of alimony is warranted when either the cohabitant contributes to the dependent spouse's support or lives with the dependent spouse without contributing." Ibid. (citing Garlinger v. Garlinger, 137 N.J. Super. 56, 64 (App. Div. 1975)). As we explained in Garlinger, supra: [I]f the paramour resides in the wife's home without contributing anything toward the purchase of food or the payment of normal household bills, then there may be a reasonable inference that the wife's alimony is being used, at least in part, for the benefit of the paramour, in which case it could be argued with force that the amount thereof should be modified accordingly. [137 N.J. Super. at 64; accord Konzelman, supra, 158 N.J. at 196; Wertlake v. Wertlake, 137 N.J. Super. 476, 487 (App. Div. 1975).] Thus, alimony may be modified upon a showing of cohabitation where either the dependent spouse or the cohabitant supports or subsidizes the other. See Gayet, supra, 92 N.J. Super. at 153-54.

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