CARDALI VS. MICHAEL CARDALI. MAY WE PLEASE HAVE APPEARANCES OF COUNSEL.
CHIEF JUSTICE RABNER: WELCOME TO EVERYONE. MR. NUNN.
MATHEU D. NUNN: CHIEF JUSTICE, JUSTICES, MAY IT PLEASE THE COURT. MAY I
RESERVE TWO MINUTES OF BEEB TIME? CHIEF JUSTICE RABNER: YES.
MATHEU D. NUNN: THANK YOU, YOUR HONOR. 13 EXPERIENCED
MATRIMONIAL ATTORNEYS CONTRIBUTED TO THE BRIEF IN THIS CASE. PERHAPS AT SOME LEVEL
THAT'S DUE TO THE FACT SENSITIVE NATURE OF THESE CASES BUT THIS APPEAL HIGHLIGHTS
FACTORS THAT CONTINUE TO PLAGUE COHABITATION DECISIONS. FIRST THE TRIAL
COURT HELD THAT COHABITATION MEANS THAT A PAYEE SPOUSE NO LONGER NEEDS BENEFIT
BECAUSE HE OR SHE RECEIVES A P FINANCIAL BELIEVE FROM THE NEW RELATIONSHIP. GUY YET
VS. GUY YET IS ALSO PART OF THE COHABITATION STATUTE. THE APPELLATE
DIVISION CONCLUDED THAT THE APPELLANT FAILED TO REBUT THAT THERE WAS NO FINANCIAL
ENTANGLEMENT BETWEEN THE RESPONDENT AND HER BOYFRIEND AND IT'S THIS FOCUS
AT THE PRIMA FACIE STAGE OF THESE PHYSICAL FACTORS THAT REMAINS A PROBLEMATIC THEME
IN THESE CASES. NUMBER ONE, THE STATUTE IS BASED ON KONZELMAN AND IN THE
CASE THE CHANGE IN CIRCUMSTANCES IS THE RELATIONSHIP ITSELF NOT THE FINANCIAL BENEFIT
TO THE PAYEE. SECONDLY AS THE COURT HELD IN TEMPLE, THIS INFORMATION ISN'T
AVAILABLE TO A MOVANT WITHOUT DISCOVERY OR PROGRAMS UNLAWFUL ACTIVITY WHICH OF COURSE
WE ALL WANT TO AVOID. NEXT BOTH THE TRIAL COURT AND THE APPELLATE DIVISION
AS THE PEDESTRIAN AS NOW DONE IN SEVER CASES CITE TO LANDAU VS. LANDAU THAT
COHABITATION AT THE PRIMA FACIE STAGE IS DIFFICULT TO ESTABLISH. AND WE
BELIEVE THAT THIS COURT SHOULD DECISION YOU A VOW TEMPLE IN THAT REGARD. IT CITES
TO THIS COURT ALSO KONZELMAN DECISION FOR THAT PRINCIPAL. AND NOWHERE IN THIS
COURT'S DECISION DID THE COURT SAY THAT THE PRIMA FACIE STAGE IS DIFFICULTY TO PROVE. IN
FACT, THE WORDS PRIMA FACIE DO NOT APPEAR ANYWHERE IN CONSOLE MANUAL OR QUINN.
LASTLY THE APPELLATE DIVISION IN THIS CASE AS WELL AS IN OTHER CASES NOW CITED
TO TEMPLE VS. TEMPLE. NOT JUST FOR THE LEGAL PRINCIPLES OF TEMPLE BUT TO THE
FACTS IN TEMPLE AS THOUGH THE FACTS OF TEMPLE ARE NOW THE STARR OR THE BARE
MINIMUM PROOFS REQUIRED TO ESTABLISH A PRIMA FACIE SHOWING. WE BELIEVE THAT TOO
IS AN ERROR. NOW, THE APPELLANT IS NOT SUGGESTING THAT COHABITATION ON THE
MERITS SHOULD BE EASY TO PROVE OR THAT AN X SPOUSE NO BE ABLE TO HARASS HIS FORMAL
STAFF. BUT THIS APPELLANT ON THIS CASE IN THIS REPORT ESTABLISHED A PRIMA FACIE
SHOWING OF COHABITATION AND HE SHOULD HAVE BEEN AFFORDED DISCOVERED IN A HEARING.
THANK YOU. CHIEF JUSTICE RABNER: GO AHEAD.
MATHEU D. NUNN: YOUR HONOR, THE PAPERS ESTABLISHED THE UNREBUTTED PAPERS AN EIGHT
YEAR RELATIONSHIP BETWEEN THE RESPONDENT AND HER SIGNIFICANT OTHER WITH PERHAPS
A BREAK IN 2014. THE SOCIAL MEDIA SHOELS WHAT I'LL DESCRIBE AS ESSENTIALLY FAMILY
PHOTOS OF THE RESPONDENT, HER SIGNIFICANT OTHER AND THE PARTIES' CHILDREN
MEANING MY CLIENT'S THIRN AND THERE'S ABSOLUTELY NOTHING WRONG WITH THAT. BUT
TO SUGGEST THAT THIS RELATIONSHIP WAS ANYTHING OTHER THAN OPEN TO THE PUBLIC
AND HELD OUT TO THE PUBLIC, WOULD BE A FANCIFUL DESCRIPTION OF THE SOCIAL MEDIA. IN
FACT, AS THE PRIVATE INVESTIGATOR REPORT ESTABLISHED MEMBERS OF THE
RESPONDENT'S BOYFRIEND'S FAMILY WERE COMMENTING ON THESE PHOTOS OVER THE YEARS.
GRADUATION PHOTOS, HOLIDAY PHOTOS, ET CETERA, ET CETERA. IN
ADDITION AND THIS BECOMES A STICKING POINT IN ALL OF THESE CASES AND THAT'S PERHAPS
WILD WE'RE HERE. THERE WAS SURVEILLANCE. AND IN SOME CASES THERE ISN'T
SURVEILLANCE AND IN SOME THERE IS SURVEILLANCE. THERE WAS APPROXIMATELY 45
DAYS OF SURVEILLANCE CONDUCTED. THERE WAS A GAP BETWEEN SEPTEMBER OF 19
AND OCTOBER OF 20 BUT THE SURVEILLANCE ESSENTIALLY SHOWED THE SAME THING DURING THE
PERIOD OF TIME. ON ALMOST EVERY WEEKDAY OR WEEKEND DAY THE
RESPONDENT WAS TOGETHER WITH HER SIGNIFICANT OTHER. ON NINE OVERNIGHTS
ON WEEK NIGHTS OR WHERE A WEEK NIGHT FOLLOWED THE WEEKEND DAY THERE WERE
OVERNIGHTS. ON 14 OF THE DATES OF SURVEILLANCE THE RESPONDENT ENTERED
OTHER SIGNIFICANT OTHER'S HOME WITHOUT HIM PRESENT. MR. NUNN, WE DO HAVE THE
FACTS. LET ME TRY TO SHARPEN THIS A LITTLE BIT. YOU SAID THAT 13 EXPERIENCED
ATTORNEYS DON'T KNOW WHAT THE STANDARD IS. CAN YOU GIVE US A SUCCINCT STATEMENT
OF THE STANDARD YOU PROPOSE. MATHEU D. NUNN: YES. TEMPLE
WAS SPECIFICALLY DECIDED. AND JUDGE FISHER ARTICULATES THAT THE STANDARD
SHOULD BE AND I AGREE WITH THIS, AND I BELIEVE AMICI DO AS WELL. DO THE FACTS
AVAILABLE TO A MOVANT MEANING NOT FINANCIAL DISCOVERY THAT'S UNAVAILABLE
DO THE FACTS OR COULD THE FACTS SUPPORT A FINDING BY THE FACTFINDER THAT THE PAYEE
AND THE SIGNIFICANT OTHER ARE IN A MUTUALLY SUPPORTIVE INTIMATE PERSONAL
RELATIONSHIP IN WHICH A COUPLE HAS UNDERTAKEN DUTY AND PRIVILEGES ASSOCIATED WITH
MARRIAGE BUT DO NOT NECESSARILY MAINTAIN A COMMON HOUSEHOLD.
JUSTICE PATTERSON: SO WHEN YOU SAID THIS ABOUT TEMPLE YOU WERE TALK ABOUT THE ONE
LINE IN TEMPLE THAT SAYS IT'S A DIFFICULT STANDARD. MATHEU D.
NUNN: LANDAU, YOUR HONOR. JUSTICE PATTERSON: SO YOU'RE COMFORTABLE
WITH THE STANDARD, THE THREE PART STANDARD IN TEMPLE PLUS.
MATHEU D. NUNN: ABSOLUTELY. THE PLUS MEANING AND ALL OF US CITED TO UNPUBLISHED
DECISIONS AND NOT SO THE COURT WOULD RELY BUT TO SHOW THE PATTERN THAT'S
WHAT IS HAPPENING NOW AFTER LANDAU EVERY DECISION IS SAYING COHABITATION IS DIFFICULT
TO ESTABLISH AT THE PROOIRNL, LANDAU STATING TEMPLE. AND NOW INCLUDING
IN THESE CASE THESE ARE THE FACTS BUT THEY PALE IN COMPARISON TO THE FACTS IN TEMPLE.
TEMPLE ALSO FACTS WERE OVERWHELMING. IT WAS A FREENT YEAR RELATIONSHIP.
NONE OF US BELIEVE THAT THE STATUTE DOESN'T REQUIRE A 14-YEAR RELATIONSHIP.
AMENT HOW DO WE RECONCILE THE STATUTORY AMENDMENTS WITH KONZELMAN AND QUINN?
SO THE STATUTE AT THIS POINT DOES NOT MAKE ANY DISTINCTION BETWEEN A SETTLEMENT
AGREEMENT THAT SPECIFICALLY DELINEATES COHABITATION AS A BASIS FOR
TERMINATING ALIMONY AND A SETTLEMENT AGREEMENT THAT DOESN'T. SO HOW DO WE RECONCILE
THE STATUTORY AMENDMENTS WITH QUINN AND KONZELMAN? IS IT THAT IT'S NOW
IRRELEVANT WHETHER THERE'S A SETTLEMENT AGREEMENT THAT PROVIDES THAT ALIMONY SHALL
TERMINATE UPON COHABITATION? MATHEU D. NUNN: I WOULDN'T SAY
IT'S IRRELEVANT, YOUR HONOR, BECAUSE SOME, FOR EXAMPLE, MR. BALDWIN HAD
A CASE WHICH IS IN THE YOU A PEN DAY SEES AND THEY GAVE A SPECIFIC DEFINITION OF
COHABITATION AND TERMINATION IN THAT CASE. SOME CASES INCLUDE VAGUE LANGUAGE
AND JUST SAY TERMINATED UNDER NEW JERSEY LAW, LIKE IN THIS CASE. AND I STILL SEE,
I STILL HAVE PEOPLE COME CONSULT WITH ME THAT HAVE GUY YET AGREEMENTS WHICH
IS NOT WHAT THE STATUTE IS BASED ON. SO TO ANSWER YOUR QUESTION I DON'T THINK
IT MAKES AGREEMENTS IRRELEVANT. AND I THINK AMICI AND RESPONDENT'S STATUTE
AGREEMENT. CERTAINLY KONZELMAN HELPS US INTERPRETING NOW THE STATUTE SHOULD BE
APPLIED. FASHL MR. NUNN, IN RESPONSE TO THE CHIEF'S QUESTION YOU SET FORTH
THE STANDARD AND THAT'S THE MOVANT MUST PRODUCES EVIDENCE FROM WHICH THE TRIER
OF FACT COULD CLUE THE SUPPORTED SPOUSE AND ANOTHER ARE MUTUAL UNTIL A
SUPPORTIVE INTIMATE PERSONAL RELATIONSHIP IN WHICH THEY HAVE UNDERTAKEN DUTIES AND
PRIVILEGESES THAT ARE COMMONLY ASSOCIATED WITH MARRIAGE OR A CIVIL UNION.
TEMPLE USES THE PHRASE ASSUMPTION OF TRUTH AND BAUERS DEFINES PRIMA FACIE AS EVIDENCE
IF UNRE BUD. NOW DOES THE FAMILY PART JUDGE CONSIDER THE COMPETING
CERTIFICATIONS WHEN A MOTION TO MODIFY OR -- MODIFY OR TERMINATE ALIMONY IS FIRST
MADE, ASSUMPTION OF TRUTH, IF UNREBUTTED, PREPONDERANCE OF THE EVIDENCE.
MATHEU D. NUNN: SO THE TRIAL COURT ALMOST HAS TO CONSIDER THE MOVANT'S PAPERS
AND THEN AND THIS IS WHAT WE DO IN FAMILY CASES, IF THERE ARE OTHER DISPUTES
OF MATERIAL FACT, UNFORTUNATELY THERE HAS TO BE SOME LEVEL OF DISCOVERY AND A PLENARY
HEARING. JUSTICE FASCIALE: SO IF YOU GET TO THE SECOND. THREE
PHRASES THAT HAVE BEEN PROPOSED. FIRST PRIMA FACIE AND DISCOVERY AND THEN MAYBE
SUMMARY JUDGMENT OR A HEARING. AS TO THE DISCOVERY PHASE, DOES THE BURDEN OF
PROOF SWITCH TO THE PAYEE SPOUSE TO PROVE THAT THERE IS NO --
MATHEU D. NUNN: SO THIS IS THE NJSBA'S POSITION WHICH WE AGREE WITH. IT HASN'T BEEN
ARTICULATED IN A COHABITATION CASE SINCE GUY YET. BUT WE THINK THAT'S A
SENSES ABOUT APPROACH TO HANDLE COHABITATION CASES. AND CERTAINLY ALL OF US
REPRESENT PEOPLE ON THE OTHER SIDE OF THIS ARGUMENT, THE PAYEE SIDE. SO
WE RECOGNIZE THE PUSHED AND PULL OR THAT THERE SHOULDN'T BE UNFETTERED DISCOVERY
RIGHTS SO WE'RE GOING TO RELY ON TRIAL COURT JUDGES TO BE THE GATEKEEPER
TO ENSURE THERE'S NO HARASSMENT OR DIGGING INTO AREAS THAT SHOULDN'T BE DELVED
INTO. JUSTICE FASCIALE: WHAT KIND OF SAFEGUARDS CAN BE PUT
IN PLACE TO MAKE SURE ONE SPOUSE DOESN'T MED DILL INTO OTHER SPOUSE POST DIVORCE.
MATHEU D. NUNN: THERE COULD BE DISCOVERY MASTERS APPOINTED
AND I KNOW WE DON'T WANT TO DO PROBABLY HUNDREDS OF COHABITATION CASES. CERTAINLY
PROTECTIVE ORDERS. FAMILY LAW ATTORNEYS DON'T ALWAYS DO THESE TYPE OF THINGS,
BUT MAKE AN APPLICATION FOR A PROTECTIVE ORDER IF THE DISCOVERY REQUEST ARE EGREGIOUS
OR OVERBROAD. JUSTICE PATTERSON: THAT'S ACTUALLY A STRIKING
ASPECT OF THIS BECAUSE IN CIVIL DISCOVERY IT'S SO ROUTINE THAT WHEN THERE'S PRIVACY
ISSUES AND CONFIDENTIALITY ISSUES, YOU CAN HAVE ATTORNEYS EYES ONLY PROTECTIVE
ORDER, YOU CAN PUT IN PLACE SOME SAFEGUARDS AND THE IDEA OF NOT GIVING THE DISCOVERY
ALBEIT CLEARLY RELEVANT UNDER THE STATUTE BECAUSE OF KEFRNS ALONG THOSE
LINES AS A GENERAL RULE UNTIL THERE'S A PRIMA FACIE SHOWING OF, YOU KNOW --
SUFFICIENT TO GET PAST THE SUMMARY JUDGMENT STAGE IS VERY DIFFERENT FROM HOW CIVIL
HANDLES THESE THINGS. MATHEU D. NUNN: IT IS. IT ESSENTIALLY
EXCLUDES ONLY THE WEALTHY YESTERDAY PAY JURORS CAN AFFORD THESE TYPES OF INVESTIGATIONS.
THESE ARE MULTI THOUSANDS E THOUSAND DOLLAR INVESTIGATIONS. SOMETIMES
THERE WAS A MOVED VEE CLOAK AND DAGGER WHERE PEOPLE ARE HIDING IN HOUSES. THAT
STUFF HAPPENS AND IT COSTS A LOT OF MONEY TO HAVE SOMEBODY FOLLOWED AROUND WITH
REAL TIME SURVEILLANCE. JUSTICE PATTERSON: IF FINANCIAL DISCOVERY
WERE GIVEN -- TELL ME IF I'M WRONG WORKS THAT OBL MEDIATE THE NEED FOR THE
SURVEILLANCE BECAUSE PART OF THE ISSUE IS THE -- IS WHERE PEOPLE ARE LIVING, RIGHT,
SO IT'S -- I DON'T SEE HOW FINANCIAL DISCOVERY WOULD MEAN THAT YOU'RE
INVESTIGATORS ARE CERTAINLY OUT OF WORK ON THESE CASES. MATHEU D.
NUNN: IT WOULDN'T. BUT IT WOULD CERTAINLY -- WELL, CERTAINLY THIS COURT, IF THIS COURT
REACH THAT IS CONCLUSION THAT THIS TIME OF DISCOVERY MAY BE AVAILABLE MEANING
IT DOESN'T NEED TO BE CONSIDERED AT THE INITIAL MOTION STAGE, SUCH AN EMPHASIS
IS PLACED ON THIS SURVEILLANCE. IT'S IN ALL OF THE CASES. SOME OF THEM ARE SIX
YEAR, SOME ARE TWO. IT MAY NOT BE AS INTRUSIVE IF THE BURDEN IS LOWER, IF
TEMPLE IS FOLLOWED TO THE LETTER ABOUT THE INITIALLY STANDARD AND I THINK WHAT
THAT DECISION WAS SAYING AS YOUR HONOR INDICATED AT PAGE 371, THIS IS THE STANDARD
-- IS THERE ENOUGH THERE THAT IT MEETS THE DEFINITION OF CLIENTS. THE FACTORS
AREN'T THE DEFINITION. THERE ARE FACTORS THAT WHICH LEAD TO A FINDING OF IT.
MANY JUDGES ARE GOING DOWN THE CHECKLIST OF THE FACTORS AND SAYING IF YOU DON'T
HAVE THIS YOU DON'T MEET THAT BURDEN. JUSTICE PATTERSON:
BUT IN THE END DOES THE PARTIES SEEKING TO PROVE COHABITATION HAVE TO COME UP
WITH EVIDENCE THAT THESE TWO PEOPLE ARE LIVING TOGETHER?
MATHEU D. NUNN: NOT NECESSARILY ON A FULL TIME BASIS, YOUR HONOR.
JUSTICE PATTERSON: I UNDERSTAND NOT NECESSARILY ON A FULL TIME BASIS BUT
COHABITATION BY DEFINITION IS ABOUT WITH WHOM PEOPLE ARE LIVING AND WHAT
I'M TRYING TO GET AT IS HOW -- I UNDERSTAND THE ISSUES WITH SURVEILLANCE BUT HOW
COULD THIS STANDARD THAT'S IN A STATUTE AND IS IN KONZELMAN EVER BE MET
WITHOUT SOME SORT OF EVIDENCE PRESUMABLY NOT COMING VOLUNTARILY FROM THE PARTY
SEEKING TO AVOID THE COHABITATION? THE SPEAKER: IT WOULD BE
DIFFICULT EVER MEET THE STANDARD -- LOOK, HOW MANY TIMES R HOUSEHOLD CHORES.
THE PARTIES IN THIS CASE LIVE IN TOWNHOMES. IT'S NOT LIKE KONZELMAN WHERE THE
PERSON WAS OUT MOWING THE LAWN. YOU DON'T DO THAT AT A TOWNHOME. SO THE ANSWER
IS YOU CERTAINLY NEED THIS TYPE OF INFORMATION AT THE EARLIEST STAGE OF THE CASE.
JUSTICE FASCIALE: BUT YOUR MAIN EMPHASIS IS FOCUS ON THE NATURE
OF THE RELATIONSHIP AND THE LEGISLATURE HAS ALREADY DEFINED FOR US WHAT CLIENTS
INVOLVES. MY UNDERSTANDING IS UNDER THE STATUTE IT DOES NOT NECESSARILY
REQUIRE MAINTAINING A SINGLE COMMON HOW MANY TIMES. YOU LOOK AT THE LENGTH OF THE
RELATIONSHIP. YOU LOOK AT THE NATURE OF THE RELATIONSHIP AS JUDGE FISHER
POINTED OUT IN TEMPLE WHICH MIRRORED THE STANDARD CONTAINED IN THE STATUTE
ITSELF AND YOU CONSIDER THE FACTORS, ALL OF THE FACTORS, BUT NOT ONE IS DETERMINATIVE.
THEY JUST ASSIST A TRIAL JUDGE IN EVALUATING THE NATURE OF THE
RELATIONSHIP. IN THIS CASE I UNDERSTAND THAT THE PSA WAS ENTERED BEFORE THE STATUTE
WAS AMENDED. DOES THAT MATTER? MATHEU D. NUNN: I DON'T THINK
IT MATTERS IN THIS CASE, YOUR HONOR. JUSTICE FASCIALE: BECAUSE
KONZELMAN IS ESSENTIALLY THE STATUTE. MATHEU D. NUNN: IT'S
ESSENTIALLY KONZELMAN AND TWO, AS THE APPELLATE DIVISION POINTED OUT IN
FOOTNOTE SEVEN OF ITS DECISION NEITHER PARTY CHALLENGED FORMALLY CHALLENGED THE
APPLICATION OF THE STATUTE TO THIS CASE. SO I DON'T KNOW IF -- WHAT WOULD HAVE
HAPPENED IF THE PARTIES HAD LITIGATED THE ISSUE OF WHETHER THE STATUTE APPLIES
BUT NEITHER PARTY CHALLENGED THE TRIAL COURT'S APPLICATION.
JUSTICE FASCIALE: EVEN WITHOUT A PSA LEGISLATURE HAS ALREADY SAID COHABITATION
IS A BASIS TO MAKE A MOTION TO MODIFY OR TERMINATE ALIMONY THAT'S ALREADY
BEEN ESTABLISHED BY THE LEGISLATURE. MATHEU D. NUNN: CORRECT, CORRECT.
CHIEF JUSTICE RABNER: THE STANDARD THAT YOU'VE PROPOSED WHICH
COMES FROM KONZELMAN AND THE STATUTE HAS QUALITATIVE LANGUAGE IN IT. HOW IS A
JUDGE TO APPLY THAT? MATHEU D. NUNN: THAT'S THE JUDGE'S
DISCRETION AND NOT ATTEMPTING TO TAP DANCE BUT YOUR HONOR IS RIGHT THAT IT
DOES CONTAIN THAT QUALITATIVE LANGUAGE SO, YOU KNOW, LOOK I THINK IT WOULD BE
DIFFICULTY IF THERE WERE NO OVERNIGHTS BETWEEN THE PAIR OR IF THEY RARELY
SPENT TIME TOGETHER. I THINK THAT WOULD BE DIFFICULT TO PROVE. I THINK CERTAINLY
THE LENGTH OF THE RELATIONSHIP AT THE PRIMA FACIE STAGE OBVIOUSLY WE'RE
DEALING WITH A DIFFERENT LEVEL OF PROOFS THAN ON THE MERITS. BUT HOLIDAYS TOGETHER,
POSTING AMPLIFIED PHOTOS, TAKING TRIPS TOGETHER. IN THIS CASE THE CHILDREN
PAID FOR A VACATION TO ITALY FOR THE RESPONDENT AND HER SIGNIFICANT OTHER. THESE
ARE ALL THINGS I THINK COMMON SENSE WOULD LEAD TO A CONCLUSION THAT THIS
IS SOMETHING DIFFERENT THAN A CASUAL OR A SERIOUS DATING RELATIONSHIP. THIS IS
EIGHT YEARS. CHIEF JUSTICE RABNER: WE TALKED ABOUT THE
PRIEFSZ CONCERNS A LITTLE BIT EARLIER. WHAT TYPE DISCOVERY ARE YOU SEEKING IN THIS CASE.
MATHEU D. NUNN: SO IN A CASE WHERE WE KNOW THERE HAVE BEEN
TRAVELLING AND VACATION ELSE, AIRLINE RECORDS TO SEE WHERE THE PEOPLE WERE SEATED
WHAT WOULD TIE INTO THAT AS WELL WERE FREQUENT FLIER MILES USED USED THINGS
LIKE THAT. CELL PHONE AND BEFORE THE COURT BELIEVES I'M DELVING INTO TOO MUCH PRIVACY.
YOU CAN OBTAIN IN A CIVIL CASE, CELL PHONE TOWER AND SELL SITE INFORMATION.
WE KNOW THERE ARE DAYS AND TIMES THAT THEY'RE TOGETHER AND TIMES THERE ARE NOT.
CELL TOWERS MAY BE ABLE TO ESTABLISH A PATTERN OF THE INTERACTION BETWEEN
THE TWO PEOPLE. CERTAINLY SOME LEVEL OF FINANCIAL RECORDS --
JUSTICE PATTERSON: I'M SORRY BEFORE YOU LEAVE THAT ONE. CELL TOWER INFORMATION WOULD
BE TO SHOW THAT THEY WERE IN THE SAME LOCATION? MATHEU D.
NUNN: YES, YOUR HONOR. JUSTICE PATTERSON: IS THAT REALLY THAT
PROBATIVE? LET'S SAY THESE PEOPLE LIVE IN THE SAME TOWNS, IS IT SO SHOCKING THAT
CELL TOWER WOULD BE THE SAME ONE? MATHEU D. NUNN: IN A CASE
WHERE THE TWO PEOPLE LIVE IN THE SAME TOWN CERTAINLY THAT WOULD NOT BE EVIDENCE
I WOULD BE SEEKING. BUT I BELIEVE THESE PARTIES ARE IN BEDMINSTER AND I FORGET
WHAT THE OTHER TOWN WAS. I BELIEVE IT WAS LIKE 12, 13 MILES APART.
JUSTICE FABIANA PIERRE-LOUIS: YOU'D BE LOOKING TO SEE OVERNIGHTS.
MATHEU D. NUNN: THAT'S CORRECT. I SAY IN NO, MA'AM CASES UNFORTUNATELY AND THIS IS
WHY COUNSEL FEES ARE OFTEN AWARDED IN FAMILY CASES. THE TRUTH EVADES
LITIGANTS. THEY MAY SAY WE WEREN'T TOGETHER ON A CERTAIN PLACE. AS JUSTICE PATTERSON
POINTED OUT IF THEY LIVE IN THE SAME TOWN, ONE MONTH OF RECORDS WILL DISPEL
THE NEED. CHIEF JUSTICE RABNER: WOULD YOU BE SEEKING ALL
THE INFORMATION ON A TYPICAL KREFZ MATTER OR REDACTED RECORDS THAT INDICATE WHERE
THE PERSON WAS WHEN THE CALL WAS PLACED? . MATHEU D. NUNN:
FIRST STEP IN THE INTERROGATORIES TO OBL BOTH PEOPLE'S PHONE NUMBERS. SECOND
STEP, SUBPOENA, JUST CELL TOWER, CELL SITE INFORMATION. WE WOULDN'T BE LOOKING
FOUR EVERYTHING ELSE THAT THEY'RE DOING OR EVEN -- JUSTICE
PATTERSON: ALL SUBJECT TO A PROTECTIVE ORDER. MATHEU D. NUNN:
ABSOLUTELY, YOUR HONOR. CHIEF JUSTICE RABNER: THEN YOU MENTIONED
FINANCIAL INFORMATION OF COURSE. PLEASE GO AHEAD. MATHEU D.
NUNN: WE KNOW THAT THERE ARE TRIPS THAT ARE TAKEN. KNOW THAT THERE ARE HOLIDAYS
SPENT TOGETHER. I SAY THAT WE KNOW THAT FROM THE FACEBOOK POSTINGS. ALSO
THE SURVEILLANCE SHOWS BLOCKS OF TIME WHERE MAYBE A TRIP WAS TAKEN. AGAIN, THIS
WOULD ALL BE PRECEDED BY INTERROGATORIES THAT WOULD HELPFULLY HELP US THARZ
THIS INFORMATION. IT IS RELEVANT UNDER THE STATUTE WHETHER THERE ARE ANY SHARED
FINANCIAL ARRANGEMENTS. AND I DON'T NECESSARILY KNOW THAT JOINT BANK
ACCOUNTS IS THE STARR ANYMORE. BECAUSE MD MARRIED QUESTION COUPLES DON'T HAVE JOINT
ACCOUNTS. PAYING FOR UTILITIES, USE OF NETFLIX ACCOUNTS, AMAZON ACCOUNTS,
ARE THEY SHARED USERS. UTILITY RECORDS, THERE WAS PERHAPS LESS THAN A LEVEL OF
CANDID NECESSARY AT THE OUT SAID OF THE CASE, ALL OF A SUDDEN THE UTILITY
RECORDS AT ONE OF THE PARTY'S HOUSES DRASTICALLY DROPPED AND WE COULD SEE APPEARS
OF UTILITY USE, WATER USE OVER A PERIOD OF TIME WHEN THEY WERE AT THE OTHER
PERSON'S HOUSE STAYING THERE. SO THOSE ARE THE TIME FRAMES OF THINGS UNLESS THERE'S,
XHIGSZ, REQUESTS FOR ADMISSIONS COCK USED. UNLESS THERE ARE ADMISSIONS BY THE
PAID '83, YES, WE ARE TOGETHER THIS AMOUNT OF TIME. HERE IS WHERE WE STAY EACH
AMOUNT OF TIME. UNFORTUNATELY WE DO NEED TO GO THROUGH THOSE TYPE OF RECORDS
TO ESTABLISH THE FREK ELOQUENTLY SEE OF THE RELATIONSHIP.
JUSTICE FASCIALE: YOU ENVISION A CASE MANAGEMENT CASE TO OUTLINE THE SCHEME OF
DISCOVERY? NOOINTZ YES. AGAIN, AGENCY I SAID, YOUR HONORS, WE ALL REPRESENT
THE PAY YEARS IN THESE CASES AND SO E WE CERTAINLY UNDERSTAND THERE -- THE RIGHT TO
DISCOVERY NEEDS TO BE TEMPERED BY SOME LEVEL OF PRIVACY AND FAIRNESS.
CHIEF JUSTICE RABNER: CAN YOU GO BACK TO THE FINANCIAL INFORMATION
POINT AND TELL US ABOUT LIMITS, HOW ONE WOULD TEMPER THAT.
MATHEU D. NUNN: SO, FOR EXAMPLE, WRITTEN DISCOVERY, DO YOU DINE OUT TOGETHER?
WHO PAYS? I ALWAYS PAY. WHERE DO YOU GO, WHERE DO YOU EAT? CERTAINLY FRNL
EVIDENCE WOULD SUPPORT THE NOTION THAT ONE PERSON IS ALWAYS PAYING OR NOT PAYING AND
YOUR HONOR ONE OF THE THINGS WE HAVE TO REMEMBER IS THERE'S OFTEN SURVEILLANCE
THAT WILL COINCIDE WITH THIS. SO, FOR EXAMPLE, IN THIS CASE WE HAVE SURVEY LANCE
OF SOMEONE BAYING A LIMO DRIVER AFTER A VACATION. WE WOULD HAVE CERTAINLY
ASKED IN WRITTEN DESIRE WAS THAT A PAYMENT FOR BOTH OF YOU OR FOR ONE OF YOU AND
THEN DEPENDING WHAT THE RESPONSE IS WE MAY EVEN WANTS TO GO TO THE LIMO
COMPANY AND SAY WHO DID YOU BILL FOR THIS, WHO PAID FOR THIS? SO, YOUR HONOR,
EVERY CASE IS DIFFERENT. ALL OF THESE CASES ARE VERY FACT SENSITIVE ABOUT
WHAT THE MOVANTS HAVE ACCESS TO. CHIEF JUSTICE RABNER: WOULD MOVE VAPT
HAVE ACCESS TO FULL CREDIT CARD STATEMENTS? MATHEU D.
NUNN: NOT WITHOUT SOME TYPE OF PROTECTIVE ORDER IN A PRIVILEGE LOG. MEANING IF
A PAYEE IS RECEIVING MEDICAL TREATMENT AND THEY'RE PAYING FOR THEM ON THEIR
CREDIT CARD CERTAINLY I DON'T BELIEVE THAT'S SOMETHING THAT SHOULD BE TURNED OVER.
THAT'S THE EXAMINED PILL THAT CAME TO MY MIND. BUT I THINK THAT CERTAINLY
WOULD BE SOMETHING SUBJECT TO A PRIVILEGE LOG AND REDACTION.
JUSTICE FASCIALE: PAROLE THE MOVE VAPT WILL KNOW WHEN THE MOTION IS MADE WHAT
DISCOVERY IS NEEDED. SO SHOULD THE MOVANT ALSO SET FORTH A SCOPE OF THE
DISCOVERY SOUGHT PRESUMING A CASE HAS BEEN ESTABLISHED UP FRONT?
THE SPEAKER: YES. BUT YOU MAY NOT KNOW THE FULL STENLT OF IT UNTIL YOU RECEIVE
THE REPLY PAPERS. THERE ARE THINGS THAT COME OUT IN REPLY PAPERS IN CASES
THAT I NEVER THOUGHT I WOULD SEE IN WRITING. REMEMBER, SOMETIMES THESE MOVANTS
WILL HAVE ADDITIONAL PRIVATE INVESTIGATION INFO THAT THEY'VE HELD BACK FROM THE
INITIAL MOVING PAPERS. AND SO SOMETIMES THERE ARE THINGS THAT COME OUT IN THE REPLY
THAT MAY LEAD TO ADDITIONAL TYPES OF DISCOVERY BUT CERTAINLY AS A
PROCEDURAL MATTER IF THE COURT BELIEVED THAT LITIGANTS IN THEIR MOVANT PAPERS
SHOULD FLUSH OUT THE TYPE OF DISCOVERY I THINK WE'RE ALL COMPETENT ENOUGH TO DO
THAT. JUSTICE PATTERSON: WHY ISN'T THIS BURDEN
SHIFTING PARADIGM THAT'S BEINGS PROPOSED OVERCOME APPLY INDICATING AN ISSUE? WE'RE
NOT DEALING HERE WITH A JURY ISSUE. WE'RE DEALING WITH EXPERIENCE OF FAMILY PART
JUDGES WHO KNOW THESE ISSUES WHO CERTAINLY ARE EQUIPPED TO LOOK AT ALL THE EVIDENCE
AND DECIDE WHETHER THE BASIC BURDEN HAS BEEN MET TO PROVE COHABITATION. AND
IT JUST STRUCK ME THAT THE IDEA THAT THE BURDEN SHIFTS AND THEY COME BACK, IT JUST SEEMS
TO BE A LITTLE BIT OF OVERKILL TO ME AND RATHER THAN A STRAIGHTFORWARD BURDEN
BUT THE EVIDENCE IS ALL CONSIDERED TOGETHER. MATHEU D. NUNN: I THINK
THE NJSBA CONCERN ON THAT SCORE IS THAT THERE'S A LEVEL OF FAIRNESS, MUCH OF
THIS INFORMATION IS IN THE POSSESSION OF THE PAY KWLEE. BY SHIFTING THE BURDEN
TO THE PAYEE, I BELIEVE THE NJSBA BELIEVES AND I DON'T NECESSARILY DISAGREE WITH
IT THAT THE PAYEE WILL COME FORWARD WITH A MORE ROBUST DISCOVERY RESPONSES KNOWING
THEY HAVE THE BURDEN TO BEAT THE MOTIONS. JUSTICE PATTERSON:
I WOULD SUGGEST WHAT'S MOICHL TO HAPPEN IS THEY'RE GOING TO SELECT THE EVIDENCE
THAT'S HELPFUL TO THEM MEETING THAT COUNTER AVAILING BURDEN AND THERE'S GOING TO BE
NEED FOR THE RECORD DISCOVERY IN ANY EVENT. AND I'M JUST WONDERING BECAUSE
GENERALLY OUR LAW IMPOSES A BURDEN AND HAVE YOU AN EMPLOYMENT CASE IS A VERY E
LAB BORE RIGHT AND LONG-STANDING BURDEN SHIFTING BUT THERE ARE SOME
CONSIDERATIONS AT WORK THERE THAT JUST ADOPT STRIKE ME AS BEING PRESENT HERE. WHY
NOT SIMPLY ALLOW FOR DISCOVERY, LIMITED DISCOVERY, WITH PROTECTIVE ORDERS
REGARDING THE CONFIDENTIALITY OF THE PARTIES, PUT THE BURDEN ON THE MOVANT BUT THE
FACTFINDER IS THE FAMILY PART JUDGE IS GOING TO LOOK AT ALL THIS EVIDENCE
CAREFULLY AND NOT BE ABLE TO EVALUATE IT AND NOT GET INTO A BURDEN SHIFTING SCHEME.
MATHEU D. NUNN: KANLTD I DON'T FEEL STRONGLY ABOUT THAT ISSUE
EITHER WAY. I UNDERSTAND THE POSITION. JUSTICE PATTERSON:
YOU MENTIONED IT THAT'S THE REASON. MATHEU D. NUNN: YEAH, I DON'T
FEEL STRONGLY ABOUT IT EITHER WAY. I THINK THE KEY IS JUST GETTING PAST
THAT INITIAL HURDLE HAS BECOME AN INSURMOUNTABLE TASK.
JUSTICE PATTERSON: I THINK FROM WHAT I'M UNDERSTANDING IS THE PROBLEM IS DISCOVERY,
THE PROBLEM IS NOT JUDGES PUTTING THE BURDEN ON THE WRONG PARTY OR PUTTING
A CLEAR AND CONVINCING BURDEN THAT ISN'T THERE. MATHEU D. NUNN:
SO, YES, YOUR HONOR BUT PART OF THE ISSUE IS JUDGES NOTWITHSTANDING WELL DOUBTED
CASE LAW AND PROBABLY 40 YEARS OF PRECEDENT INCLUDING NIBLGD JUDGES EVER CONCLUDING THAT
WHEN YOU FAIL TO REBUT THE RESPONDENT'S PAPERS. AND SO THAT'S IS A CONSISTENT
THEME IN MANY OF THESE CASES SPECIFICALLY IN THIS CASE THE APPELLATE DIVISION SAID
THAT THE APPELLANT FAILED TO REBUT THE RESPONDENT'S ASSERTIONS ABOUT
FINANCIAL ENTANGLE MANY. OF COURSE RHETORICALLY HOW WOULD ONE DISPROVE THAT
WITHOUT DISCOVERY? JUSTICE PATTERSON: THAT STRIKES ME AS
ALMOST APPLYING A BURDEN SHIFTING PARADIGM HERE BECAUSE THE JUDGE IS SAY
WELL THERE'S BEEN A SHOWING OVER HERE. THEY MET THAT BURDEN AND YOU NEED TO REBUT.
I DON'T KNOW HOW THAT BURDEN SHIFTING IDEA WOULD RESOLVE THAT PROBLEM.
MATHEU D. NUNN: I DON'T KNOW THAT IT WOULD, YOUR HONOR. I DON'T
KNOW THAT IT WOULD. JUSTICE FASCIALE: YOU SAID -- THE DIFFICULTY
WITH WHICH MOVANTS ARE FACEING TO ESTABLISH COHABITATION COURSE IT'S CITED IN KONZELMAN
WHICH I THINK IS A TRIAL. MATHEU D. NUNN: 13-DAY TRIAL 26
WITNESSES. JUSTICE FASCIALE: YOU ALSO SAID IT SHOULDN'T BE
DIFFICULT BUT IT SHOULDN'T BE EASE SEIZE TO ESTABLISH THE PRIMA FACIE.
MATHEU D. NUNN: ON THE MERITS, YOUR HONOR. IT SHOULDN'T BE EASY ON THE MERITS
AFTER DISCOVERY IN A MARRYING TO PROVE. JUSTICE FASCIALE:
THAT WAS THE REASON FOR MY QUESTION UP FRONT, ASSUMPTION OF PROOF, IF
UNREBUTTED, THOSE WORDS SEND A MESSAGE THAT IT SHOULDN'T BE SO DIFFICULT TO ESTABLISH
A PRIMA FACIE CASE. MATHEU D. NUNN: THAT'S CORRECT. THE
COURTS HAVE BEEN CITING TO LANDAU THAT IT IS DIFFICULT AT THE PRIMA FACIE
STAGE. JUSTICE FASCIALE: THE JUDGE HERE DID THAT, RIGHT?
MATHEU D. NUNN: TRIAL COURT AND APPELLATE DIVISION.
CHIEF JUSTICE RABNER: OTHER QUESTIONS, AIN'T? ANYTHING YOU'D LIKE TO ADDS AT THIS
POINT. THE SPEAKER: NOTHING ELSE, YOUR HONOR THANK YOU FOR YOUR
TIME. MS. LAWRENCE: I appear on PAF of the New Jersey State Bar association.
Thank you for allowing us the priviledge to appear. The association's participation is
not to argue in favor of either party but to urge the court to provide much needed guidance
to the bench and the bar to ensure statewide uniform it in addressing cases like this
1. Now is the moment for this Court to make clear that a prima facie showing
of cohas been TAGS is made when the evidence is unrebutted would allow the Court to conclude
that a supportive spouse and a third party are involved in a mutually supportive intimate
personal relationship in which they have undertaken tut at thises or privileges
commonly associated with MAFRP or civil union. The conflating of the standard
and what is required at the initial motion stage and what is required at the final hearing
stage has been among the most litigated issues this court has had to grapple with over
the past 3 years. Of equal importance is for this court to make clear that an applicant
filing their motion, their initial motion alleging cohas been TAGS need not check off
all 6 boxes all 6 factors outlined in section N of our statute. It is important to note
that they need not do so at any time in the case, whether it be at the final hearing or
during the initial motion, but it is critical for this court to make clear that it is
specially not required at the initial motion stage when absolutely no discovery has been
made. It is also of significant importance that it be made clear that at either stage
the initial motion stage or the final hearing stage financial enter 29ment is not required.
The only requirement at either stage is to focus on the relationship and is the
relationship a mutually supportive intimate personal 1. If you are in a mutual supportive
intimate personal relationship and it can be shown to have stability and permanence, you
are cohabiting. Cohas been TAGS does not mean counting over nights. Cohabiting does not
mean financial enter 29ment. ASSOCIATE JUSTICE ANNE M. PATTERSON: Let's say
there is a couple that did not live together, kept their finances absolutely separate,
went Dutch at every dinner and had no financial enter mink eling at all and never spent
a night in 1 another's homes or never spent a night in a hotel together. They are dating.
They are going out to did you know err. They are going to movies. They are going out with
friends much they are doing all those things but we have no financial enter mink eling
and we have no ab TAGS in terms of living together part time or full time. Is that
going to meet the standard. MS. LAWRENCE: Well, let's look at the
relationship? How long has the relationship been going on? How long have they been doing
that. ASSOCIATE JUSTICE ANNE M. PATTERSON: Let's say it's 3, 4, 5 years of
this. MS. LAWRENCE: Yeah I think you're going to have a problem so in 1 of your
questions to my colleague. THE COURT: What do you mean by that, you are going
to have a problem? You need to look at the relationship and justice Paterson when you
had said earlier that cohas been TAGS to you means where they live. ASSOCIATE
JUSTICE ANNE M. PATTERSON: Well, the word is there and it's living together. I mean what
I'm doing is taking out of the 6 factors, really 3 of of them. I mean the first 2, finances,
1 and 2, and then recognition of the relationship stays in but living together is number
4. Sharing household chores 1 would suggest that if they are not in the same house they are
not doing that. If we strip away those things, are we really in the realm of cohas been at
any time. MS. LAWRENCE: We absolutely could be. Jury it seems also in justice
Paterson's example factor 6 would not apply so you're saying that it was the legislature's
intent that even though they set forth 6 factors plus all relevant evidence if only 1
of those factors met and that's recognition of the relationship in the couple's social
and family circle, that suffices after a final hearing. MS. LAWRENCE: If you have
a long-term relationship and so I'm afraid to say that the number within which that should be.
I think Quinn was 29 months. But I think. ASSOCIATE JUSTICE ANNE M. PATTERSON:
There was a lot more to it. MS. LAWRENCE: Right. ASSOCIATE JUSTICE
ANNE M. PATTERSON: And I think justice weiner app TER's question really under scores this.
If you strip awe way, it strikes me that legislature and the court in Konzelmann but
we're looking at the statute, the key factors to me seem to be finance and living together
which really sub SUMS 4 and 5 and if you strip that all away, are we at point where somebody
whose Facebook reflects that people are congratulating them to getting to 3 years of
dating but nothing else, are cohabiting. Is that really what -- how low the bar is.
MS. LAWRENCE: I think that's exactly what the legislature was trying to accomplish, was
to reframe how this court and all courts think about cohabiting. It does not mean living
together. Cohas been TAGS are you engaged in a mutually supportive intimate relationship
JOOR I see the. The couple does not live together on a full time basis. But it does include
the words on a full time basis. If what the legislature was really trying to do is what
you're suggesting that it is just come politely irif they spend time together or live
together at all, why would they have included the words on a full time basis in the statute.
It seems like they then shove written a court may not have found an absence of cohas been TAGS
on the grounds that the couple does not live together period offer perhaps even spend
time together overnight. It just doesn't seem like the legislature was trying to achieve
what you are suggesting which is that there is no amount of overnight spent TTH or time
spent together in each other's homes that is required. MS. LAWRENCE: I think
over nights are a factor. I think it will be hard to prove cohas been TAGS if you do not
have over nights. Are there cases are there where -- because they have children in different
households and they don't actually want to sleep at the house and maybe they are all day
and leave at 10 o'clock at night and go home with their children. But this is exactly
I think what the legislature tried to get away from and why there's language in there
about a court not being able to not find cohas been TAGS in the absence of a common
household. What the legislature was trying to end were the shams that were happening where
people were renting apartments in the same apartment building and 1 they would really
be living out of another apartment and maintaining a separate apartment VSHGS a
lease so that they can convince the try trier of fact that they were not cohabiting so
they were trying to get to the essence of what is the relationship and not forcing us
to say oh, if you sleep together, if you sleep over there 2 nooks nights a week you're
not cohabiting but 3 nights a week you're could habiting. That is not the distinction
that the legislature was trying to get us to focus on. THE COURT: Can we go
back to justice Paterson's hypothetical about what sounded like a dating relationship
because the statute says cohas been TAGS involves not just a mutually supportive intimate
personal relationship but 1 in which a couple has under taken duties and privileges commonly
associated with MAFRP or civil union. How does the example that justice Paterson laid
out for us satisfy that second part? MS. LAWRENCE: So that was a 3 or 4-year
dating relationship where they never had over nights and no financial enter 29ment, so
are they holding themselves out in social circles as a couple? Are think engaged?
ASSOCIATE JUSTICE ANNE M. PATTERSON: I would suggest they are not engaged but going to
wedding and going to social events together. CHIEF JUSTICE STUART RABNER:
And posting pictures of themselves going to the movies and other things. MS.
LAWRENCE: And this is going on for 3 or 4 years? ASSOCIATE JUSTICE ANNE M. PATTERSON:
For the sake of a hypothetical, let's call it that. MS. LAWRENCE: And they are
in a monagomous relationship, the 2 of them, going to wed is, meeting kids, social
circles, posting on social media. THE COURT: That's enough to establish a
prima facie case. MS. LAWRENCE: Absolutely. I would absolutely meet that that
is enough to meet the threshold of a mutually personal intimate relationship.
JUDGE DOUGLAS M. FASCIALE: I think the important thing that we're seeing is we're focusing
on the nature of the relationship which is the crux of a lot of arguments on this side.
You have to get away from checking the boxes and, you know, whether it meets the standard,
whether it establishes a prima facie case or not is ultimately going to have to be the
trial judge's determination but this is a great example. It's no longer showing we have
you have to show finance and you haven't, therefore you don't make a prima facie case.
Therefore motion denied. Come back some other time. MS. LAWRENCE: I mean judge
Fisher said it the best in temple. I MAEN if I could just come up here and say please
just follow temple and sit down, I would love to do that. THE COURT: Don't
sit down yet. We want to hear your suggestion about the case management conference and
then we'll allow you to sit down. MS. LAWRENCE: Sure, so what judge Fisher
said if we have to check all those boxes a prima facie showing would be as rare as a union
corn. You can't do it at that stage. ASSOCIATE JUSTICE LEE A. SOLOMON: You're
not arguing for the ultimate disposition. You're just saying these are the things that
would lead to the discovery to have the time disposition and that doesn't require there
living in 1 place, the kind of thing you were talking about, the 2 apartments and all,
you know, there were cases where they literally spent the entire day together but never
slept in the same residence, but that's something that would have to be fleshed out during
the course of discovery and ultimately perhaps at trial. You're just talking about getting
to the prima facie case the things that we've been discussing or justice Paterson was
asking about that, that may be enough to get you discovery. MS. LAWRENCE: It
should be. ASSOCIATE JUSTICE LEE A. SOLOMON: Okay. Should be enough to get
you discovery. MS. LAWRENCE: And that's why we're here. I think this is
probably the most litigated issues. My colleague sent you 2 cases just this past month
that the Court in Lombardi and buck conflated the standards as. �� but we don't
have to than just seeing each other sometimes and having social media posts, correct.
MS. LAWRENCE: Correct. JUDGE DOUGLAS M. FASCIALE: My understanding
is the move VAPT certified they attended family functions together, they took family photos
together. They held themselves out at a couple. They vacationed together. They accessed
each other's residence. They shopped together. They did laundry together. They stayed
overnight together and they did this for about 8 years. So when you get to the question
that the chief asked about discovery, I would be very interested in also this burden shifting
idea that appears to be on table. MS. LAWRENCE: Great. So what the state bar
association, what our position is is we would like this court to adopt a 3 part test
similar to what you did 40 years ago in L E PI S and we addressed it in the brief but just
to summarize it here what we envisioned having hopefully going forward in cohas been TAGS
cases is Step I, the moving party files an application submitting evidence of cohas been
TAGS. The court must determine if the application has provided prime FASH evidence of cohas
been TAGS which is a modest standard R that is where the court must look at evidence
holistically and with the understanding that at this earlier and initial stage there are
limitations as to the amount of discovery conducted. That's where judge Fisher called
-- focused on the essential meeting of cohas been TAGS and the Court cannot be overall
rigid or requires boxes of the statute to be checked. Again it's a focus on the
relationship. There is no sin kwon on to proving cohas been TAGS. At this stage, again,
borrowing from judge Fisher and temple, when considering the initial motion papers the
KOVRT must decide if the application presented enough evidence to entitled them to discovery
and a hearing. He explained when undertaking consideration of these initial applications
the Court should give the Ben fest doubt to the applicant and all favorable inferences
to be drawn from the evidence so far available without discovery. So once the Court
performance the analysis of Step I and makes in assessing this modern standard it makes
a finding that a prima facie case has been made we would prove to Step 2 if that finding
is not made, then the cohas been TAGS application fails. In Step 2 with what the finding
made, that finding we submit would shift the burden of proof to the supported SPOUSHGS
the person receiving alimony to prove they are not could habiting, that they are not in
a mutually supportive intimate relationship. Discovery would be conducted. ��
why would it shift the burden of proof? Because it seemed like O Z A L I.N.S., the Appellate
Division held that it was appropriate for the burden to shift if recognition of the fact
that it is the payee and not the payor who has access to all this evidence but once a
prima facie case is made, if we agree with you that the payor is entitled to discovery
and therefore will be entitled to access this evidence in a way that comes with protective
orders or any other protections, why should the burden shift to the payee? It's not the
same, for example, as an employment dis crim NALGS case where the burden shift to the
employer to give a legitimate nondiscriminatory reason much that is uniquely within the
possession of the employer. The employee would not know sometimes what that reason is.
Here once there is discovery and the pay over can access the information, why should the
burden still shift to the payee. MR. BALDWIN: So it's a burden shift at trial
and they would have to carry the burden at trial that they are not in a mutually supportive
intimate relationship. Our theory, our philosophy is as Mr. None articulated and that is
because that the recipient of alimony, the person that is receiving alimony is the 1
that is in possession of the information. Yes, we can ask for discovery. Yes, we can argue
to take negative inferences, yes, we can ask the Court to spend the alimony pending receipt
of discovery, but to try to avoid those steps by the obly gore, the person paying Al low
any, we thought it would be a more fair process to put the burden on the person who's
receiving the alimony to come toward with the evidence and to prove that they are not
in a PORive intimate relationship. �� so just to make sure I understand, when
you use the word burden shifting you mean the burden would permanently sit with the payee
to prove they are not cohabiting. MS. LAWRENCE: At the plenary hearing it
would be their burden to prove that they are not in a mutually supportive intimate
relationship. �� are there other cases where that type of burden shifting curse,
just because for example in employment discrimination, even though the burden shifts
to the employer to come up with this legitimate nondiscriminatory reason, the burden of
persuasion is always on the person who's always on the 'plaintiff to show that discrimination
was really what was at issue and so even though there's a burden of production for the
employer to come forth with what the legitimate nondiscriminatory reason was, the burden
of persuasion at the end case is always on the plaintiff. Are there other examples of
cases like this where the burden permanently shifts to the defendant to prove that they
were not cohabitating after a trial. MS. LAWRENCE: I think it's common in alimony
cases so when somebody is receiving alimony. Alimony is an economic right that a spouse
is entitled to to compensate them for the marital lifestyle that was established during
the marriage. Right?ity not a punishment to the payor.ity not a life time anew it.Ity
always subject to changes and circumstance and you always have to show need so if there's
a post judgment application and somebody -- the PRN paying alimony is alleging that there's
been a CHACHLG in circumstance and I'm going to stereotype and wife is receiving alimony,
I think in those hearings, in those post judgment hearings the wife still needs to prove
she has a need and I think that's what O S L I N is talking about. �� I thought
there was case law that is saying that after the order is entered, then the burden of proof
would be on movant it should be in some way CHAFRMed, not the burden of proof always on
the person receiving alimony to continually prove that he or she was entitled to it.
MS. LAWRENCE: Well, in L E PI S in the 3 part test, the first prong is you have
to convince the court that there is a change in circumstance so that's the moving party
and so I'm going to say that the husband is file that application to say that the wife
is at the time of the divorce she was making 30000 $ and now he thinks she's making 70
000 $, maybe she has a public job, she's a teacher and you can search what her new salary
is. He would come forward with that evidence. I still then think the burden shifts to
her at the plenary hearing to say notwithstanding me now earning 70000 at the time of the
divorce I was earning 25, I industrial a need for alimony. �� but then maybe
that's why trial judges have been trying to make the prime FASH burden so hard because
otherwise it is this odd situation where it SIFTS to the person receiving alimony to hold
the burden of persuasion. In the case that you just mentioned where they can check someone's
public salary it's digit than in this case where there are 7 factors and there's been
private investigations and there's there's suggestions about trash pull and lots of
privacy invasion you can see why perhaps that's 1 of the reasons that if -- I guess I will
phrase it this way. If the prima facie showing as you pointed out should be modest and
should not be very difficult, then why is that enough to get the burden to shift permanently
to the person receiving the alimony. MS. LAWRENCE: I think the State bar
association would be very satisfied if we were to leave with a case that was very clear
as to what the standard is. That would make the burden shift much less important. I think
the number 1 issue why we're here and what we need the Court's help on is the standard
and I think that if this court can make very clear what the prima facie standard is versus
the final hearing standard, we are not overall concerned with the burden shift. What we are
deeply concerned with is what we're seeing coming out of 21 counties with the conflating
of standards and judges viewing the standards quite differently. ASSOCIATE
JUSTICE LEE A. SOLOMON: I may have misheard. When you were describing the process procedurally
and let's say the prima facie case is established, at that point if the burden
shifts, was the suggestion that alimony would stop at that point? What's the prima facie
case is established there Bob an order a temp robberiry order hatting alimony for that
period of time until the receiving spouse, the payee spouse could come forward and establish
that he or she was still entitled or in need of alimony. Is that the process you were
envisioning? MS. LAWRENCE: It could much a court can suspend it.
ASSOCIATE JUSTICE LEE A. SOLOMON: They always can but is that the stage once the prima
facie case is established at which the Court would be expected to because the burden would
then shift, the court would be expected to suspend alimony, is that what you were
saying. MS. LAWRENCE: I wasn't getting to the relief. We didn't address at all
the relief. ASSOCIATE JUSTICE LEE A. SOLOMON: I may have misheard. MS.
LAWRENCE: But I think for sure most practitioners are putting in their apple condition
to suspend or terminate. ASSOCIATE JUSTICE LEE A. SOLOMON: At that point.
MS. LAWRENCE: At the motion point. ASSOCIATE JUSTICE FABIANA PIERRE-LOUIS:
It is my understanding that you described those possible steps as a way of explaining
the burden shift something that would be an appropriate measure to ensure that the payee
spouse doesn't withhold discovery or delay providing discovery and in lieu of going
through those additional steps of asking for alimony to be suspended pending discovery
and other steps that you could possibly take that the burden shift might be something
that would help alleviate some of those concerns but as already discussed, the burden
shifts not the main issue here. So I don't want to go back into it but that was my
understanding that kind of suggested some those steps as a way of kind of prompting the
payee spouse to move things along with regard to discovery. MS. LAWRENCE: To
be incentivized to provide discovery. THE COURT: We're just about at the
5-minute park that was allotted. I would like you to briefly address the case management
conference. It's utility and just give it a minute or 2 and then we need on move on.
MS. LAWRENCE: So chief that would happen, so after Stage 2 and discovery is
done, what we envision is Step 3 would be that's where the court would determine if there are
issues of material fact and if we needed a plenary hearing FLT at that point we would
suggest a case management conference to discuss the discovery, where the case stands and
all likelihood the case will then go to mediation but I digress. So we would have the
case management conference there. If there are no issues of material fact and the evidence
is so 1-sided and 1 party wanted to fail a summary judgement motion that's when the
summary judgement motion. THE COURT: Are you requesting that this be mandated
as part of the process or left to the discretion of the trial judge. MS. LAWRENCE:
We would strongly ask this Court to suggest it. I don't know if we need to require it.
It is our position, State bar's position, we think it is a good process but we do
appreciate and enjoy our judges to have discretion as to how though run their court but
we do think it's a useful tool and it may help settle the case or at least streamline
what the trial looks like so case management conferences at that juncture could be
helpful. ASSOCIATE JUSTICE ANNE M. PATTERSON: You said something that May made
me -- these are routinely sent to mediation. MS. LAWRENCE: Usually once a prima
facie case has been made in an attempt to avoid discovery and trial it goes to mediation
and most of those cases are settling in mediation. ASSOCIATE JUSTICE ANNE
M. PATTERSON: So there's an agreement to reduce alimony, SPPD alimony. MS.
LAWRENCE: Usually a buyout. JUDGE DOUGLAS M. FASCIALE: Usually goes to an E
S P panel. MS. LAWRENCE: Well that's at the divorce.^ you can degree to go
to a Pam and some county at thises will send you into a blue ribbon and you can get back
to the early settlement panel list as well if you asked for that. ASSOCIATE JUSTICE
LEE A. SOLOMON: It's been a long time since I was doing family cases as a judge, but aren't
most of them going to case management conferences in any event sometime, it may be right
at the end of the prima facie showing or you're having a might INTG a conference and
deciding, should there be, I mean what stage you're at, isn't there a case -- this is a
ridiculous way to ask the question -- aren't case management conferences often going on
now under our current rules in these situations at this time. MS. LAWRENCE:
For sure, but the biggest problem is if the Court has not made a finding of prima facie
evidence there's not much to mediate. ASSOCIATE JUSTICE LEE A. SOLOMON: Okay.
MS. LAWRENCE: So that's why it's so important for this court to Mike clear for
us and practitioners across the state as to what that standard looks like so that it's
applied uniformally. ASSOCIATE JUSTICE ANNE M. PATTERSON: ASSOCIATE
JUSTICE LEE A. SOLOMON: So once prima facie case is established SHS that's what the case
MAFRMG the can have ren is scheduled, discovery issues will be worked out perhaps mediation,
you know, whatever, that's where it all gets fleshed out and that is in fact happening
in a loft places. MS. LAWRENCE: And if you're not successful there in settling
your case, then you go through some discovery. You see what discovery looks like. Then
at Step 3 you'd have another case management conference of the now you have the Ben fist
everything you had in the initial motion which is not very much likely, it's only what's
available to the public, now you have the benefit of all the discovery so everybody knows
what cards the other side is holding generally speaking, now the case is ripe for a case
management conference, perhaps go back to mediation and now you're going to decide are
you filing a summary judgement motion, is it going to be disposed of that way? Are you
going to medicine YAGS or are we going to schedule it for a trial. THE
COURT: Thank you. MS. LAWRENCE: Justice, I just wanted to answer 1 question I
can of justice beener app TER, with regard to your earlier question justice, with regard
to if there was an agreement what would happen, it took us a very long time to negotiate
4 sentences I think and that's Section 2 of the alimony statute and that talks about the
effective date of the act and so we tried to make the act take effect immediately but
we really worked hard on the last part of this to make it clear that the new statute took
effect September 10, 2014, but not be construed against any other agreement so if you have
an agreement, that's your agreement. If you've defined cohas been TAGS in your agreement
or you've said what's supposed to HAP happen in cohas been TAGS in your agreement, this
statute does not come in and interrupt that agreement R. �� understood so
you're saying that the statute is relevant in cases like this where it says that alimony
will terminate under cohas been TAGS under New Jersey law but if there is an agreement
that says alimony will terminate at cohas been TAGS and then sets forth some other
definition that's not set forth in the statute then the agreement would be binding.
MS. LAWRENCE: Correct. �� what's that part of the statute, can you point me
to. MS. LAWRENCE: Section 2. It's the very last paragraph of the alimony statute.
The effective date I believe it's Section 2. There's a lot of sections before that. I
don't know how it's Section 2. �� Section 2 of what. MS. LAWRENCE:
2A:: 34-23. It's right after section N. It starts with this act shall take effect immediate
HI and shall not be con STRAUD to or greed upon or other specifically bargained for
contractual provisions that have been incorporated into a final judgement, an order, or
an agreement. THE COURT: I'm afraid we have to move on. Do you have 1 more
question. ASSOCIATE JUSTICE LEE A. SOLOMON: 1 more question of even today,
can't the parties agree that alimony will terminate upon certain things happening that
may not be directly related to the statute? The statute doesn't replace any current
agreements of which there are many. MS. LAWRENCE: Correct. ASSOCIATE
JUSTICE LEE A. SOLOMON: Okay. I'm just making sure. MS. LAWRENCE: Oh, you can
agree to just about anything. THE COURT: Thank you Ms. Lawrence.
CAROLYN N. DALY: GOOD MORNING, YOUR HONORS. I WANT TO THANK YOU FOR ALLOWING
US TO APPEAR AS AMICUS IN THIS MATTER. WE APPRECIATE THAT WE ARE GOING
TO BE HEARD ON THIS ISSUE THAT IS OF PUBLIC IMPORTANCE. I WOULD NOTE THAT THREE
OF THE FOUSH ATTORNEYS ARE FELLOWS. CHIEF JUSTICE RABNER:
DON'T TELL US WHO ISN'T. CAROLYN N. DALY: AND I BELIEVE THAT
WE AS THE FELLOWS OF THE AMERICAN ACADEMY MATRIMONIAL LAWYERS STAND IN A
UNIQUE POSITION TO UNDERSTAND THE IMPACT THAT A DECISION IN THIS CASE WILL HAVE
UPON THE PUBLIC AND THE LITIGANTS THAT WE REPRESENT. IT'S CLEAR THAT GIVEN
THE MULTITUDE OF DECISIONS THAT HAVE COME OUT FOR THE LAST SEVERAL YEARS THAT THERE IS
NO CLEAR STANDARD AS TO WHAT CONSTITUTES A PRIMA FACIE SHOWING OF COHABITATION
AT THE MOTION HEARING. AND I WANT TO FOCUS ON THAT. BECAUSE THAT IS REALLY WHAT
THE AMERICAN ACADEMY IS HERE TO TALK ABOUT, THAT AT THE MOTION STAGE
LITIGANTS ARE BEING DENIED ACCESS TO JUDGMENT, TO THE BENEFIT OF THEIR BARGAINS,
TO BEING HEARD AND IN PARTICULARLY IN SITUATIONS WHERE THE COURTS HAVE
RECOGNIZED MAKING AN ULTIMATE PROOF OF COHABITATION MAY BE DIFFICULT. YOU'RE
ESSENTIALLY SAYING TO THE MOVANT WE UNDERSTANDS YOU DON'T HAVE THINGS
INFORMATION. THEY'RE ELEVATING THE ONE FACTOR OF INTERTWINED FINANCES. THAT IS
NOT EVEN IN THE DEFINITION UNDER THE STATUTE. I'M NOT GOING TO REPEAT THE
DEFINITION IT'S BEEN SAID ENOUGH TIMES. THE REALITY IS WE'D HAVE JUDGES WHO CONTINUE
TO IGNORE THE FACT OF WHAT JUDGE FISHER SO APTLY SAID IN TEMPLE. THAT IS
IT THE TOTALITY OF THE CIRCUMSTANCES IT IS NOT ONE FACTOR ABOVE ALL ELSE AND IT IS
A PRIMA FACIE SHOWING WHICH, AND I'M GOING SKIP AHEAD, WE SET FORTH IN OUR
BRIEF A PRIMA FACIE CASE IS THE INITIAL, NOT THE FINAL BURDEN AND THE EVIDENTIARY
BURDEN IS MODEST AND WE CITE IS IT A DECISION BY THIS COURT. ROBERTS,
182436 AT 441. AND SO IT IS SIMILAR AGAIN AS JUDGE FISHER APTLY STATED ALL FACTS
SHOULD BE GIVEN AND CONSIDERED AS YOU DO AT A SUMMARY JUDGMENT MOTION IN A LIGHT
MOST FAVORABLE TO THE MOVANT. AND IF YOU DO THAT AND THE TRIAL COURTS DETERMINE
THAT IS PRIMA FACIE, INITIAL NOT FINAL PROOF OF COHABITATION THEY SHOULD BE
PERMITTED TO PROCEED TO DISCOVERY AND TO A FINAL HEARING IN THE APPROPRIATE SITUATIONS.
CHIEF JUSTICE YOU ASKED US TO WHAT THAT STANDARD SHOULD BE AND I THINK THAT
IS THE STANDARD. THE STANDARD SHOULD BE IT IS AN INITIAL NOT FINAL PROOF. IT IS
A -- IT IS THE SHOWING THAT COHABITATION CAN BE PROVEN. AND IT YOU LOOK
AT THE EVIDENCE THAT HAS BEEN PRESENTED AT THE MOTION STAGE AND IT IS NOT JUST
FINANCIAL INTERTWINING WHICH YOU MAY NEVER FIND BECAUSE IT MAY NEVER EXIST, BUT
THAT DOESN'T DEFEAT WHAT COHABITATION IS DEFINED AS WHICH IS THE FOCUS ON THE
RELATIONSHIP BETWEEN THE PARTIES AT THAT STAGE. JUSTICE WAINER
APTER: CAN YOU GIVE THAT CASE SITE ONE MORE TIME? CAROLYN N.
DALY: 182 N.J. 436 FOUR 41, 2005. JUSTICE WAINER APTER: THANK YOU.
CAROLYN N. DALY: CHIEF JUSTICE, YOU ALSO SAID THAT THE
STATUTE IN DEFINING COHABITATION HAS QUALITATIVE LANGUAGE BUT DOESN'T THIS COURT
AND THE APPELLATE DIVISION ALWAYS TELL US THAT DEFERENCE, ALL DUE DEFERENCE
IS GIVEN TO THE FAMILY PART TRIAL COURT JUDGES BECAUSE THEY STAND UNIQUE UNTIL
A POSITION TO EVALUATE THESE MATTERS. SO I THINK IF WE ARE TO GIVE PURPOSE
TO WHAT THIS COURT AND THE APPELLATE DIVISION HAVE ALREADY SAID WE HAVE TO ACKNOWLEDGE
THAT THOSE TRIAL COURT JUDGES DO STAND IN THAT POSITION. THEY CAN EVALUATE
THE EVIDENCE. THEY SEE THESE ISSUES ALL THE TIME. AND JUST AS THIS COURT DID
IN LEPIS, WHICH WAS TO SAY WE RECOGNIZE THAT THE TRIAL COURTS ARE ESSENTIALLY
ISSUING DIFFERENT DECISIONS THAT IN ALL OF THESE CASES WHERE WE HAVE ISSUES OF
CHANGED CIRCUMSTANCES WE ARE GETTING ALL OF THESE VARYING DIFFERENT OPINIONS
AND DECISIONS AND SO THIS COURT 40 YEARS AGO SAID IT WOULD BE APPROPRIATE FOR US
TO APPLY SOME PREDICTABILITY. THAT IS WHAT THIS COURT CAN DO. WE THINK
THIS CASE OFFERS THE OPPORTUNITY FOR THIS COURT TO SET A CLEAR STANDARD AS TO A PRIMA
FACIE SHOWING OF COHABITATION AT THE MOTION STAGE AND TO ONCE AND FOR ALL
STATE ONE FACTOR IS NOT ELEVATED ABOVE ALL THE REST. LET'S LOOK AT THE STATUTE
ITSELF. AGAIN, I CITED THE DEFINITION OF COHABITATION NOWHERE IN IT IT TALKED
ABOUT INTERTWINED FINANCES OR FINANCES WHATSOEVER. IT TALKS ABOUT THE NATURE OF THE
RELATIONSHIP. AND AT THE END THE CATCHALL FACTOR AS I LIKE TO SAY, I SAY
THE STATUTE HAS SIX FACTORS AND THEN THE CATCHALL. THE CATCHALL FACTOR SAYS ALL
OTHER RELEVANT EVIDENCE. AND I THINK STATE BAR IN THEIR BRIEF DID A GOOD
JOB AT PAGE 14 OF THEIR BRIEF SETTING FORTH OTHER FACTORS THAT A COURT COULD LOOK
AT THAT HAVE NOTHING TO DO WITH FINANCIAL INTERTWINING. THAT WOULD BE EVIDENCE
OF COHABITATION IN THE APPROPRIATE CASE. AND HERE'S THE OTHER
PART OF IT AND I THINK IT GOES TO WHAT JUSTICE PATTERSON WAS ASKING. THERE'S
THE LIST OF THE SIX FACTORS AND THEN THE CATCHALL FACTOR. FOLLOWING THAT
IS THE PARAGRAPH THAT SAYS THE COURT SHALL ALSO CONSIDER THE LENGTH OF THE
RELATIONSHIP. A COURT MAY NOT FIND AN ABSENCE COHABITATION SOLELY ON THE GROUNDS
THAT THE COUPLE DOES NOT LIVE TOGETHER ON A FULL TIME BASIS. WELL, IF THEY
VACATION TOGETHER THEY ARE IN A SENSE LIVING TOGETHER FOR THE PERIOD OF THE
VACATION. BUT I THINK THE FACT THAT THOSE TWO FACTORS SET APART FROM THE LIST OF
FACTORS THE COURT CAN CONSIDER ARE MORE IMPORTANT. I THINK THAT THE
LEGISLATURE SPECIFICALLY SAID YOU LOOK AT ALL OF THESE FACTORS, BUT ABOVE ALL DO YOU
HAVE CONSIDER THE LENGTH OF THE RELATIONSHIP AND YOU CANNOT SIMPLY SAY
BECAUSE THEY DO NOT LIVE TOGETHER ON A FULL TIME BASIS THERE IS NO COHABITATION.
JUSTICE PATTERSON: COUNSEL THAT'S A SHALL ALSO CONSIDER AS
IN THE CATCHALL, THE LEGISLATURE STARTED WITH FINANCES, NUMBER TWO IS FINANCES,
THREE IS RECOGNITION AND THEN LIVING TOGETHER FREQUENCY OF CONTACT IS FOUR.
HOUSEHOLD CHORES ARE GOING TO FOUR AND THEN IT SAYS THAT A COURT SHALL ALSO CONSIDER
THE LENGTH OF THE RELATIONSHIP. WHY SHOULD WE CONCLUDE THAT THAT LATTER
LANGUAGE WHICH IS NOT EVEN IN THE ENUMERATED FACTORS IS ABOVE ALL THE MOST
IMPORTANT FACTOR? CAROLYN N. DALY: I DON'T KNOW THAT IT'S
ABOVE ALL. JUSTICE PATTERSON: I'M SORRY.
CAROLYN N. DALY: I'M SAYING THEY SET IT APART. THEY COULD HAVE INCLUDED IT AS
PART OF THE LIST OF FACTORS. BUT THEY SAID IT APART TO SAY THE COURT SHALL
CONSIDER THE LENGTH OF THE RELATIONSHIP BECAUSE THERE CAN BE RELATIONSHIPS JUST
AS THERE ARE IN TEMPLE, 14 YEARS, TEN YEARS, WHERE THESE PEOPLE AS AUDREY
HEPBURN WOULD SAY LIVED NEXT DOOR TO EACH OTHER AND VISITED EVERY ONCE THAT A WHILE.
BUT THEY RELY ON EACH OTHER. THEY VACATION TOGETHER. THEY GO TO THEIR
CHILDREN'S GRADUATION. THEY DINE TOGETHER. THEY ARE THE FIRST PHONE CALL THE OTHER
MAKES. JUSTICE PATTERSON: I UNDERSTAND THAT. BUT JUST READING
THE STATUTE AS A WHOLE. I DON'T SEE THAT IS BEING ELEVATED ABOVE EVERYTHING ELSE. IN
FACT, THERE COULD BE AN ARGUMENT THAT THE ENUMERATED FACTORS SHALL CONSIDER
WHICH ARE UP FRONT MIGHT HAVE BEEN CONSIDERED BY THE LEGISLATURE MORE IMPORTANT.
IT'S JUST HARD TO READ THAT AND SAY THIS IS THE KEY FACTOR.
CAROLYN N. DALY: BUT I THINK THEY MADE A POINT OF CALLING IT OUT.
JUSTICE PATTERSON: THEY CERTAINLY HAVE INSTRUCTED THAT THAT BE A FACTOR.
CAROLYN N. DALY: I THINK THAT IT'S IMPORTANT FOR THIS COURT ALSO TO SAY
THAT AGAIN AS JUDGE FISHER SAID THE FACTORS IN THE LIST ARE NOT THE ALPHA
AND THE OMEGA OF WHAT ARE TO BE CONSIDERED BY THE COURT WHEN DETERMINING AT THE
MOTION STAGE IF A PRIMA FACIE CASE HAS BEEN MADE FOR COHABITATION. AND WE
THINK THAT THAT, IF NOTHING ELSE, IF THIS COURT DOES WHAT THIS COURT DID IN LEPIS
AND SET FORTH A CLEAR STANDARD, IT WOULD BE VERY HELPFUL TO THE PUBLIC TO
LITIGANTS AND TO ALLOW THEM ACCESS TO THE NEXT STAGE BECAUSE THE WHOLE POINT OF THIS
IS TO GET TO A DECISION BASED ON ALL OF THE FACTS. THE WHOLE POINT OF LAW IS
TO GET TO THE FINAL DECISION BASED ON TRUTH AND THE FINAL FACTS. AND IN
MANY OF THESE CASES THESE PEOPLE ARE SEEKING A TERMINATION OF COHABITATION BECAUSE
IT'S CONTAINED IN A AGREEMENT WHICH IS THE BENEFIT OF THEIR BARGAIN WHICH
IS WHAT QUINN FOCUSED ON. SO TO DENY THEM WHEN AT A MOTION STAGE WHEN THE PRIMA FACIE
SHOWING IS MINIMAL IS INITIAL IS NOT THE FINAL, THE ABILITY TO PROCEED
ESSENTIALLY DENIES THEM ACCESS TO THE SYSTEM. AND MANY PEOPLE CAN'T AFFORDED TO
IT MORE THAN ONCE. SO THEY'VE SAVED MOST OF THE LITIGANTS HAVE SAVED, THEY'VE
HIRED THE PRIVATE INVESTIGATOR. THEY'VE HIRED THE LAWYER, THEY FEEL THEY'RE DONE
THEIR BEST TO DEMONSTRATE TO THE TRIAL COURT THAT THEY HAVE ALL OF THESE
INDICIA OF COHABITATION. IF THEY'RE DENIED THEY MAY NEVER COME BACK. AND THEY
CERTAINLY AREN'T GOING TO BE ABLE TO AFFORD AN APPEAL IF THEY MADE ALL OF THIS
EFFORT TO GET IT RIGHT THE FIRST TIME. SO WE THINK THAT THEY ARE BEING
UNJUSTLY DENIED THE ABILITY TO DEMONSTRATE THEIR CASE AND TO HAVE A FULL HEARING.
SO JUSTICE PATTERSON'S POINT ABOUT DISCOVERY. AND I SUSPECT THE
GENTLEMAN BEHIND ME ARE CIVIL LARTS AND THEY WILL NOD. IN CIVIL LITIGATION THERE IS
A PRETTY STANDARD COURT FORM CONFIDENTIAL DISCOVERY ORDER. I BELIEVE I
GOT THAT RIGHT. THE COURT CAN ENTER THOSE IN ANY CASE THEY FEEL APPROPRIATE.
THE TRIAL COURT IS UNIQUELY SITUATED TO CONTROL DISCOVERY. THEY CAN DETERMINE
BASED ON WHAT THEY HAVE ALREADY SEEN ABOUT A CASE MANAGEMENT CONFERENCE WHAT ELSE
THE LITIGANTS ARE SEEKING. WHETHER IT BE THE MOVANT OR THE RESPONDENT WHO
IS TRYING TO PREVENT, IS CONCERNED ABOUT THE PRIVACY ISSUES.
JUSTICE PATTERSON: YOU MENTIONED CIVIL LITIGATION AND IN GENERAL THERE'S NO
THRESHOLD SHOWING. I MEAN THE CIVIL LITIGATION, THERE'S A DISCOVERY
PERIOD. YOU DON'T HAVE TO MAKE A SHOWING TO THE COURT AND HAVE THE COURT SAY YEAH
THIS LOOKS LIKE A SERIOUS CASE BEFORE THERE'S SOME LEVEL OF DISCOVERY. LOTS OF
ARGUMENTS ABOUT WHAT DISCOVERY IS. IF THERE IS BROADER DISCOVERY AVAILABLE
ON THESE MOTIONS FROM THE GET-GO, IS THERE A NEED FOR THE THRESHOLD SHOWING AT ALL?
CAROLYN N. DALY: I WOULD SUBMIT, YOUR HONOR, THAT IF THERE IS
AN ABILITY TO DO SO, MAYBE NOT. MAYBE THERE DOESN'T NEED TO BE. BUT I THINK IF
YOU'RE LOOKING TO BE FAIR AND TO PROTECT AND IF, IN FACT, WE ARE TALKING ABOUT
COHABITATION AS A CHANGE OF CIRCUMSTANCES, A CHANGE IN THE DYNAMIC OF A
RELATIONSHIP, THEN I THINK YOU HAVE TO ACKNOWLEDGE LEPIS. IT IS THE LAW IN THIS
AREA. JUSTICE PATTERSON: NOT BEING A FAMILY LAW -- WITH NO
EXPERIENCE IN FAMILY LAW PRACTICING, IT SEEMS TO HAVE ORIGINATED WITH LEPIS.
CAROLYN N. DALY: AND I THINK THAT WE NOW -- I DON'T THINK WE CAN
IGNORE LEPIS. I DON'T THINK WE CAN IGNORE WHAT HANDLE CODIFIED THAT THERE HAS
TO BE -- IF COHABITATION WHICH IS A STATUTORY CREATION IS A CHANGE, AND
THAT IS WHY THE MOVANT IS ABLE TO COME TO THIS COURT. THERE HAS TO BE SOME SHOWING.
BUT IT CAN NOT BE THE SHOWING THAT IS BEING DETERMINED IN MANY IF NOT MOST
OF THESE APPLICATIONS AT THE TRIAL COURT. WE BELIEVE THAT IT IS, AGAIN, AN INITIAL,
I KEEP SAYING IT BUT IT IS NOT A DIFFICULT BURDEN TO REACH AT A MOTION HEARING.
WHAT HAPPENS AT A FINAL HEARING IS A DIFFERENT ISSUE. WE DON'T EVEN DISCUSS THAT.
JUSTICE FASCIALE: THAT'S REALLY THE ONLY THING THE JUDGE DID
HEAR. OF COURSE WE DIDN'T GET TO A FINAL HEARING. THAT'S THE ENTIRE FOCUS OF THIS
APPEAL. CAROLYN N. DALY: CORRECT. THAT IS THE PRIMA FACIE
SHOWING AND WHAT THAT IS WE ASK THIS COURT TO MAKE A DETERMINATION. AND WE THINK
THAT IT IS -- THAT IT IS NOT WHAT OCCURRED IN THIS CASE, THAT YOU HAVE TO
DEMONSTRATE THE FINANCIAL INTERTWINING AND TO BE FAIR AND WE ARE GOING TO RECOGNIZE
AS LANDAU DID AND WE CAN TALK ABOUT THAT IN A MINUTE THAT IT MAY BE DIFFICULT
FOR A MOVANT TO PROVE THESE THINGS. YOU CAN'T JUST ACCEPT WHAT THE RESPONDENT
IS SAYING WHAT THE PERSON OPPOSING IS. YOU HAVE TO ALLOW FOR THE DISCOVERY
FOR THE MOVANT TO BE ABLE TO OBTAIN THE INFORMATION IN ORDER TO PROVE IT A FINAL
HEARING. THERE ARE WAYS THAT WE CAN ADDRESS THE DISCOVERY AND WE CAN
ADDRESS THE PRIVACY ISSUES AT THE TRIAL COURT LEVEL IN A CASE MANAGEMENT CONFERENCE.
WE AGREE WITH THE STATE BAR ON THAT. WE CANNOT CONTINUE TO MAKE THIS SUCH
A HIGH LEGISLATURE DILL THAT LITIGANTS CAN'T GET BEYOND THE MOTION PHASE IN ORDER
TO OBTAIN THE BENEFIT OF A FULL EXPLORATION OF WHAT IS GOING ON. WE DON'T
THINK THAT THIS COURT WOULD WANT TO CUT THOSE LITIGANTS OFF. IF THE WHOLE POINT
OF JUSTICE IS GETTING TO THE TRUTH AND THE FACTS OF THE MATTER, WHY WOULD WE DO
THAT, WHY WOULD WE MAKE THE BAR SO HARD AT THE ISSUE MOTION STAGE FOR THESE
PARTIES TO GET TO THE NEXT POSITION. CHIEF JUSTICE RABNER:
DID YOU WANT TO ADDRESS BRIEF INTL PERHAPS TRY TO DRAW TO A CLOSE?
CAROLYN N. DALY: THANK YOU, YOUR HONOR. AS TO LANDAU, YOUR HONOR, WE JUST THINK
THAT LANDAU HAS A LIMITED SIGNIFICANCE. IT SAYS YOU HAVE TO MAKE A PRIMA
FACIE. WE AGREE. IT DOES NOT STAND FOR THE PROVISION THAT THAT PRIMA FACIE SHOWING IS
SUCH A HARD SHOWING TO MAKE OR THAT YOU MUST DEMONSTRATE INTERTWINED FINANCE
CHS YOU MAY NEVER BE ABLE TO GET TO. WE SAID WOULD ASK THAT THIS COURT MAKE THAT
CLEAR SO WE HAVE A CLEAR STANDARDS. JUSTICE FASCIALE: JUDGE
FISHER MADE THAT CLEAR IN TEMPLE. CAROLYN N. DALY: WE AGREE.
BUT WE HAVE TRIAL COURTS WHO IGNORE THAT TO THIS DAY AND SO THIS COURT NEEDS
TO SPEAK AND TO MAKE IT CLEAR THAT THAT IS THE CASE THAT IS THE STANDARD. IT IS
A A LOW STANDARD. COHABITATION IS A MUFRPLY SUPPORTED INTIMATE PERSONAL
RELATIONSHIP THAT ARE COMMONLY ASSOCIATED WITH MAR RACHZ OR CIVIL UNION BUT DOES
NOT NECESSARILY MAINTAIN A SINGLE HOUSEHOLD. WE ASK THIS COURT TO CONFIRM THAT
IN ORDER TO EVALUATE THAT IT IS ALL THE FACTORS AND NOT JUST ONE ABOVE ALL
OTHERS AND THAT THE BURDEN AT THE MOTION HEARING IS AN INITIAL, NOT FINAL AND,
THEREFORE, A LOWER BURDEN. SO THAT WE HAVE A CLEAR STANDARDS THAT CAN BE
APPLIED AND THE LITIGANTS CAN GAIN ACCESS TO HAVE THEIR BARGAINS MET, THEIR CASES
HEARD AND BE ABLE TO PROCEED. EQUITY DEMANDS THERE BE A CLEAR STATEMENT AND
I THANK YOU FOR YOUR TIME THIS MORNING. CHIEF JUSTICE RABNER: THANK YOU,
MS. DAILY. MR. BALD WITH INTENT. MR. BALDWIN: Good morning. I represent
Susan Cardali. She's the dependent former spouse of the petitioner Michael car dadly.
Ms. Car seeks obviously the as well as the trial court's opinion. Petitioner would have
this court believe that the prima facie cohabitation law is in need of fixing.
Petitioner relieses on judge Fisher's decision in temple but for that opinion coming out
in recent years we would not be here. There's no dispute with respect to the legion of
cases that have come out over the last I'm going to say 5 to 6 years. I count some 43
unpublished opinions in that area. I would also like to just point out that of those 43
opinions I think 1 involves a wife who's seeking to terminate or suspend alimony so we're
talking about primarily issues a husband who has, know Ms. Lawrence had referred to being
stereotypical with respect to you know who brings these applications or who would be dis
enfranchised from these cases, husbands, ex-husbands who have alimony obligations
overwhelmingly file these applications. What is significant about this case is and again,
I'm drawn into this from a legal intellectual side of this case as I indicated my client
does not want a reversal. My client does not want to return to the trial court. She doesn't
think she shove to return to the trial court based on what the trial judge, judge McDonald
in this case found. And he set forth some very interesting comments in his opinion with
respect to what a modern day dating relationship is and I found that that was very interesting
that we're talking about 2021 or 2022 relationships. Listening to petitioner and
the state bar and American academy of matrimonial lawyers you're teaching this court to
make the standard or confirm or affirm the standard in a cohabitation case being a low
bar is troublesome and I think the Court, if it looks at the unpublished opinions, the
legion of unpublished opinions, if there isn't a defined standard there's an intuition
on the part of trial judges and the app appellate courts with respect to what's right
and fair in these cases. Judge Fisher in the temple opinion I think that's an outlier
opinion with respect to the facts in that case. The facts were extreme. No 1's going to
dispute that. You had parties, unmarried parties referring to each other as husband and
wife long-term cohabitation, living together in the Spring Lake home where they were
vacationing and so on or living I think it was the husband or the third party alleged
cohabitat's home. None of that is present in Cardali if we're going to distinguish Cardali
from what this court is being asked to do by petitioner which is a broader scope of relief
than what we're looking at. I think that the standard perhaps in a cohabitation case,
given the sensitivities with which all courts look at and it's decisionness Konzelmann
and Quinn and there were dissent in I believe it was gay yet and Quinn if not Konzelmann
but in any event, there were very serious issues in that case with respect to privacy
rights on the part of women who were receiving alimony and so the court was very concerned
about that and the Court should still be KRND about that and if the bar is a low bar,
imagine the flood of pairs of alimony who will be coming to the court basically just saying
I think I see my ex-wife and this gentleman together in various places. I see social
media information and so on and it suggests strongly that they have a long-term maybe
intimate relationship . I want discovery now. I would like to really confirm that and then
the flood gates open with respect to discovery, what's being produced, how much is being
produced, who's the gatekeeper of that information. First of all I think the trial
courts as the justices indicated with respect to their experience and expertise in handling
these cases can ferret out legitimate case FRZ illegitimate case and I think the opinions
that we have kind of reflect that. There's an opinion that I provided within the past
week, the Lombardi opinion. Aisle in the going to go on about it but it's a cautionary
tale of what can happen if the court allows a movant to get past go with respect to
discovery. $1.3 million in total counsel fee and professional fees and investigator fees
and so on was incurred in that case and ultimately the court DFD the complaint
finding no cohabitation. THE COURT: Mr. Baldwin in a case such as this what's
missing to establish a prima facie case? We have a certification that touches on several
of the factors, numbers 3, 4 and 5. Doesn't cover finances which is understandable given
where that information resides. What more is needed? MR. BALDWIN: So at this
particular case, both the trial court and the Appellate Division looked at number of over
nights. Out of 150 days some 17 months of investigation where somebody was lurking in
the bushes, somebody was following my client around, trying to get all in information
and taking photographs and so on I think out of 44 times where there was chronicled being
together at either my client's home or her boyfriend's home, they were like 22 over
nights. It was minimal in the overall scheme of things. ASSOCIATE JUSTICE LEE A.
SOLOMON: Did you say 22 out of 44. MR. BALDWIN: Correct. ASSOCIATE
JUSTICE LEE A. SOLOMON: 50 percent were overnight. MR. BALDWIN: Out of
150 days that were. ASSOCIATE JUSTICE LEE A. SOLOMON: I misunderstood.
MR. BALDWIN: That the investigator tracked them over a 17-month period. ASSOCIATE
JUSTICE RACHEL WAINER APTER: Sorry I thought it was only 44 days out of 100 when either
party was seen so on the other days, so 150 minus 44 is not very good but 106 maybe the
investigator didn't see anyone, correct? MR. BALDWIN: That's correct, yeah,
as far as the investigator being tracking them. ASSOCIATE JUSTICE RACHEL WAINER
APTER: On so on the 44 days that either the pay or or the payees, either Susan or Michael
-- sorry, either Susan or her allege boyfriend were seen, half of them were overnight,
correct. MR. BALDWIN: Correct. ASSOCIATE JUSTICE RACHEL WAINER APTER:
And there were no days where they were seen only separately or there were days where they were
seen separately but it was entering the other party's house, right? Weren't there some
days where Susan was seen entering the alleged boyfriend's home without him being there.
MR. BALDWIN: That's my understanding but to apes the chief justice's question
with respect to the quantity of time you asked me about what other indicia of the cohabitation
would there need to be I think that was the question again, the amount of over nights
is significant so when Mr. Cardali came to the court with respect to this investigator
information it wasn't overwhelming. It didn't impress the Court. These are the kind of
cases though that can come before the court where the court is the gate keeper. THE
COURT: Isn't that level of determination appropriate for the final stage and not for
the prima facie case? You've got dozens of instances when they were observed and on half
of those occasions, why is that minimal? MR. BALDWIN: Well, the Appellate
Division found that it was basically, these are the facts, weekends. Maybe a holiday.
It wasn't a regular time where, you know, it's week in/week out. An important issue in
thighs kinds of cases is the deterrence of a dating relationship, what constitutes a
dating relationship, what is the definition of a dating relationship versus a cohabitation
relationship. We know from the statute what constitutes a cohabitation relationship, what
constitutes a dating relationship? Can someone date? Can someone have a relationship,
a payee VSHGS a relationship with someone and spend weak ends with that person?
ASSOCIATE JUSTICE LEE A. SOLOMON: Over 8 years? MR. BALDWIN: Correct.
ASSOCIATE JUSTICE LEE A. SOLOMON: Okay. ASSOCIATE JUSTICE LEE A. SOLOMON:
I'm curious, what else is missing? You said the over nights and 22 out of 44 sounds like
a lot of over nights but I'm not the trial judge. What else is missing besides the number
of over nights? MR. BALDWIN: The prima facie case of of cohabitation.
MR. BALDWIN: I would say, well, I'd like to the answer the question if I can this way.
With respect to just SHS you know, they are being together, not having any of the financial
information which I understand I don't disagree with the difficulty with obtaining that
but the justice Paterson's point when we take away those objective points like financial
information, you are left with well, what kind of a relationship is it? Is it a steady
monogamous we're together all the time relationship or is it sort of haphazard in
this case Ms. Cardali certified that her relationship with her boyfriend was on again
off again. She also very clearly said she never intended to mare again. She would never do it after the divorce that she went through with Mr. Cardali. So there was other
But at a prima facie stage so before there is any discovery, why can the court weigh competing
certifications? Is the court real I holding like a mini bench trial without any kind of
hearing and just deciding based on the papers which facts the Court believes? Shouldn't
it at a prima facie stage be that the Court is accepting all of the facts alleged by the
movant as true and granting the movant all inferences that come from those facts in
determining whether prima facie case is maid since the only thing the court is determining
should this get to discovery not who wins after a final hearing. MR. BALDWIN:
So the problem with that is you will have, as I indicated before, you will have a rush
on the Court with respect to payers of alimony saying I see my wife, my ex-wife with
gentleman so and so. I see them quit a bit. JUDGE DOUGLAS M. FASCIALE: So what
can be done then to safeguard those privacy interests to make sure that motions are made
in good faith? What would you recommend. MR. BALDWIN: So the (Inaudible) when
I read that, I'm very familiar with the L EPA S standard, I considered because I didn't,
as counsel said, as family of lawyers we represent both sides. It's helpful to have
clarification but I would suggest that if there is going to be some showing of financial
information prior to a trial and I know the bar, state bar is referring to a case management
conference after the discovery has been concluded, I submit that that would be very
oppressive for a pay of alimony to have to go through. Of I suggest if there's going to be
something like that with some review by the KOVRT at the preliminary stage, at the motion
stage, if the Court is confront WD a case that maybe looks ambiguous to some extent, say
I want to check. Let me ask for, you know, I don't know 1 year of bank account records,
credit card statements, what have you, and then review it in camera. The court can review
it in camera and the court can make a determination as the gate keeper before the
matter proceeds any further. ASSOCIATE JUSTICE FABIANA PIERRE-LOUIS: So as
opposed to ordering discovery, the judge would request discovery of financial information
and in camera make a determination of whether he or she believes there's enough to move
forward in the case? Is that -- I'm trying to understand how that would work.
MR. BALDWIN: I'm suggesting it as a preliminary matter. THE COURT:^ the movant
has not seen the discovery, just the judge under what is proposed. MR. BALDWIN:
Correct. As if it was provided with motion papers, for example the again, we're seeking
to protect the payee's PRIEF and I this information. CHIEF JUSTICE STUART
RABNER: If we understand your position on that, move beyond it if you could and give us
your XHINTS on the kind of discovery Mr. None is suggesting. MR. BALDWIN:
With Mr. None, if he's my Advair, representing Mr. Card dally, I would like things, as,
freak flyer miles to see where parties sat together on an airplane I think he mentioned,
things like that, it would be I suspect rather limited. The problem with allowing the
barn door to open at the beginning of the case is, and I think we all know, we all
experienced how discovery is used. Discovery can be used in very abusive ways. We know,
for example, 1 of the issues in this case or in the cohabitation case is sexual intimacy.
It's in the opinions. How far does the movant get to investigate 1's personal life vis-a-vis
an intimate relationship with someone else? We know in the court rules in the part 25
rules that in divorce case DZ, for example, a party cannot pursue information that relates
to the cause of action which can inflame family cases. My concern. ASSOCIATE
JUSTICE ANNE M. PATTERSON: I'm sore RSHGS I missed that. MR. BALDWIN: Can't
ask questions that relate to the cause of action in the family part discovery rules.
ASSOCIATE JUSTICE ANNE M. PATTERSON: To the cause of action, meaning what? MR. BALDWIN: Correct. For example, if someone pled adultery. ASSOCIATE
FASCIALE: Grounds. ASSOCIATE JUSTICE ANNE M. PATTERSON: Accident trial cruelty
or adultery or whatever it may be. Okay. Thank you. I didn't understand what you meant.
MR. BALDWIN: These vis-a-vis inflammatory areas of inquiry, I think people
would get upset over that and I think the Court for example maybe Manny V Manny, remove
fault from the alimony equation, there was concerns about those sorts of things but it
through it out in this context because how do we define relationship? What are the parties
up to? So with regard to the discovery, I envision something that would be very limited
with respect to, you know, a HORT term of bank account records, credit card statements,
if you want freak flyer miles, okay, but in the context of the kind of remedies that the
Court can come up with and limitations on discovery and how the Court can review
information for example in camera before it proceeds on the discovery course, there are
2 opinions that I I would cite. They are both judge Fisher opinions, both published app
appellate opinions in the matter of the estate of Jack Thomas. JUDGE DOUGLAS M.
FASCIALE: You submitted those already, right. MR. BALDWIN: I don't know if
I did submit these. But they are both unique situations where the Court below did
something that the Appellate Division disagreed with and it was -- the Appellate Division
reverse interested said before you do anything, the Court can fashion appropriate remedies
with respect to reviewing information in camera and, you know, having evidentiary hearings
and so on. ASSOCIATE JUSTICE RACHEL WAINER APTER: Can you give us those
citations. You said 1 is Jack Thomas. MR. BALDWIN: Absolutely. State of Thomas
and that's 431 N.J. Super. 32, 2013. And the original 1 is evolution A B versus M.A. R
R A, and that's 474 N.J. Super. 356, TWEE. ASSOCIATE JUSTICE ANNE M. PATTERSON:
Are these family opinions. MR. BALDWIN: No, they are not.
ASSOCIATE JUSTICE ANNE M. PATTERSON: So why are they relevant. MR. BALDWIN:
Because we're in this world, I think we're in this world where we're coming up with a
remedy to not only allow. THE COURT: You said, I didn't hear what you said.
MR. BALDWIN: Is he GASH SHUS remedy. S e.g. AC IOUs. That recollections
the plaintiff's position in these cases but also the defendant's position in these cases.
ASSOCIATE JUSTICE RACHEL WAINER APTER: And you said these are cases about
limited discovery, correct. MR. BALDWIN: Correct. And that the Court at the
initial stage of the case can vet the issues before the case proceeds further.
ASSOCIATE JUSTICE LEE A. SOLOMON: I saw in response to 1 of my, maybe I misunderstood,
I believe it was Ms. Lawrence, the bar, said that at the end of, if a DERMENTS is made
based on the allegation the prima facie case is established, there would be a case management
conference at that point in time and my, I know it's been a long time, all the issues
you're talking about, when you're in a familiar court court case as the judge, you're
meeting with counsel and you're going overall those things you are talking about. Frankly
you do it in civil cases as well when they are complex. So everything you're suggesting
presumably and I think it was already acknowledged would happen. They are just
asking for what is the standard for establishing a prima facie case and at that point if
you're having the case management conference whatever limitation is sorted by parties
with respect to discovery would be fleshed out of the the judge would make a call. That's
I think that's happening routinely today but, as I said, it's been a long time since I was
sitting on the family bench. MR. BALDWIN: So 2 things. With respect to again
the making out a prima facie case, I'm suggesting as a possibility that that finding be
made perhaps after an income rah review of select information that the Court may find
after looking at preliminary papers, preliminary motion papers and the other suggestion
I have is maybe it's a higher standard. Maybe in cohabitation cases and your Honors can
read these opinions, with respect to a higher standard, 1 that, and judge Fisher
mentionness 1 case something along the lines of what the court would consider in connection
with a preliminary injunction application so there's some higher standard in these kind
of cases given the sensitivity involved, given the party -- payee's privacy interest and
so on much that's not just everyone can come to court and say I think my wife is involved
with someone, I have some photographs, I have some social media information, I would like
to get past go and if I can get past go and get discovery, all kind of things can happen
and we know with the cohabitation statute for example, the Cardali case is different but
we're talking more expansive issues. Cardali there's a provision in the agreement that
says upon cohabitation alimony terminates but nonetheless, in cases under the cohabitation
statute or in a case where there's an agreement like this, once parties get past go and
there's skiff, the unseen part of the iceberg in litigation cases there can be leverage
for modification of alimony, some other resolution of the case that might, the payee
might not be in that position but for getting past go and so we're looking for some prophylactic
to pay for all the payee's positions before all the animals are out of the barn.
ASSOCIATE JUSTICE RACHEL WAINER APTER: In TERLS of protecting privacy interests, why is
that something that cannot be HAMDZed by the trial court judge in terms of protective
orders, lip itting discovery and some of the ways we discussed because it seems like privacy
interests of payee spouses are already being invaded in terms of having to hire a private
investigator and I think in your brief you significanted that Mr. Cardali shove done
trash pulls in order to get more information, that seems more invasive of privacy in certain
ways than limited discovery that is tightly controlled by a judge, so I'm not sure why
it is in a payee spouse's best interest to require a whole year of private investigator
tailing them and trash pulls and things that do seem extremely invasive in order to get
to tightly KRO controlled discovery controlled by a judge. It does seem like it might
end up in a situation that your adversary explained where only very wealthy people can
bring these types of motions. MR. BALDWIN: I think that that's true. I think,
and the trash pull is something that judges have indicated in these types of cases where
they deny. ASSOCIATE JUSTICE RACHEL WAINER APTER: Should be done like they'll
say it wasn't enough because they if do a trash pull so it wasn't enough to show a prima
facie case. MR. BALDWIN: Exactly. ASSOCIATE JUSTICE RACHEL WAINER APTER:
But that's very concerning to me. I think a trash pull I would think would be very in
vasive. MR. BALDWIN: There are many things that are invasive about this but
your Honor with respect to court's policing discovery to some extent, if this court
decides to make this easier access, a lower threshold, the words prima facie meaning at
first blush do we just have to show a little bit in order to get past go, if this court
does that there needs to be some remedy or prophylactic to protect parties like my
client. JUDGE DOUGLAS M. FASCIALE: That's why I asked the question. So other
than protective orders and limiting discovery what else do you say would be appropriate.
MR. BALDWIN: Right. I would just go back to that this -- that the Court view
whatever documents are reasonable at the beginning, at the beginning of the case, at
the motion phase, not after discovery has taken place. JUDGE DOUGLAS M. FASCIALE:
Assume for sake of my question that it's not directed towards an in camera inspection
of information to determine whether a prime KASH case has been established. Assume for
sake of my question that the judge already concluded based on the proffer that a prima
facie case has been established. Let's take this case instead of the judge saying there was
not information let's make believe the judge said there is enough information. Now, pretend
we're at this case management conference what are you going to be asked be done at that
stage when they S say they want discovery. MR. BALDWIN: I'm going to say limit
it. How much does the movant need? If they are intertwined finances I would think maybe
at best and again as a practitioner I'm just suggesting maybe a year prior. What happens
as a matter of course in matrimonial cases 5 years of information is requested and not
only 5 years of information requested, it's done in a notice to produce that is requested
to produce that has some, you know, 100 requests. There are interrogatories that are served
of the wee not limited unless the court comes in and says you're limited but you will
see 100 enter interrogatories with 10 subparts for each enter interrogatory. It's extremely
impress SIF much that's my concern. My very serious concern on part of dependent form
er spouses that they might just give up. They also might not, if this is established law
in our state, you might have people not, maybe not pursuing relationships the way they
would otherwise. They might say I don't know where this dating relationship is going.
JUDGE DOUGLAS M. FASCIALE: So those 2 things, what you've described so far
is very easy. Time frame can be easily managed, the number of interrogatories, the numbers
of requests met, everything can be limited and managed under a protective order what else
besides that would adequately protect the privacy interests of the payee if the movant
gets over the hurdle of a prima facie case. MR. BALDWIN: So. The they use
it almost every case as Mr. None pointed out. Very expensive and very evasive of 1's
privacy imagine being tracked. In fact in the Lombardi case there's a vignette about that
an investigator standing be hand the dependent former spouse in the grocery line taking
photographs of the receipt of what she was buying to see if there was any comingling of
groceries with respect to the third party alleged cohabit assistant. ASSOCIATE
JUSTICE RACHEL WAINER APTER: But again hasn't that partially happened from judges saying
this is not enough. You need more private investigator records. You need more trash
pulls. You need more of everything? MR. BALDWIN: So I would say to some extent
yes. THE COURT: Or take this case if we were to adopt your argument that 44
days of observation is minimal, what message will that SNEND. MR. BALDWIN:
It was 150 days of. THE COURT: Only 44 times that they were seen together.
ASSOCIATE JUSTICE RACHEL WAINER APTER: Or that they were seen at all, right.
MR. BALDWIN: Right. I believe so. THE COURT: And if the court were
to find that at an insubstantial showing, a minimal showing, what would that tell the
next litigant, that you investigate for double or triple the amount of time which is that much
more invasive. MR. BALDWIN: It could be more. It could be like Konzelmann,
know, 4 months of daily investigation. I don't pro fess to know the answer with respect
to how this will implicate how people behave. I'm just concerned that people don't behave
badly. THE COURT: But if the concern is to appropriately little it privacy
issues, aren't the suggestions from justice Fasciale the direction we should be focusing
on? MR. BALDWIN: If the court goes there, again, just limit it to something
that's rational and reasonable. ASSOCIATE JUSTICE LEE A. SOLOMON: We're not
going to limit that. We're in the going to set the rules of discovery in the family court
case. They are set by the rules. These judges, they are dealing with these parties every
single day just about and they are having these conversations about we want this, we want
that and there is is trial judges who deal with this every day or dealing with these issues
every day. This court isn't going to say to them what's reasonable or unreasonable in
any given case but we trust the trial courts and they do every day deal with this. That's
why the prima facie case, what establishes it is going to be key to our holding and at that
point I thought Ms. Lawrence had an excellent suggestion, as you seem to agree, you have
the case management conference, you flesh out all these things. If somebody doesn't like
TSHGS I'm sure there's going to be appeal somewhere. But hose things don't usually
happen. Judges sit there and deal with those issues and resolve them on a daily basis.
What else are you asking us to do in answer to justice Fascially's or the chief justice's
question what else are you asking us to do, dive into the family court and try the cases
for them? What are you asking us to do. MR. BALDWIN: So 2 things number 1.
My suggestion was with respect to the case management conference, it's not really a case
management conference, it's part of the motion process that the court reviewed prior to
rendering a decision. ASSOCIATE JUSTICE LEE A. SOLOMON: They are getting the
motion and the motion papers and they are deciding based on those motion papers there's
certifications are the attachments, the exhibit that probably fill 2 boxes, they are saying
have they made out a prima facie case. That's happening. We're at the next stage now.
Now they are having a case management conference and they are saying all right, you make
these allegations, you make these assertions, you have this evidence, what else do you
think you're entitled on in discovery to be able to prove your case? What else are we
supposed to do here. MR. BALDWIN: Well, may I suggest, your Honor, practice
committee recommendation that I know in other areas of law and I'm in the an expert in
personal injury or so on but I understand that they have defined interrogatory.
ASSOCIATE JUSTICE LEE A. SOLOMON: You're saying form interrogatories. MR. BALDWIN:
Yes, that maybe something like that can be established in cohabitation cases.
ASSOCIATE JUSTICE LEE A. SOLOMON: Maybe it could be -- I don't know. We're going to have
to decide something here that's going to resolve the issue in this case and be able to
apply to future cases and referring that question to the practice committee maybe that will
be a suggestion but it's not going to help us here right now. MR. BALDWIN:
We have the records that we have in this case. THE COURT: Is there anything
you would like to add to your presentation. MR. BALDWIN: Nothing else, your Honor.
Thank you. MATHEU D. NUNN: THERE WAS A COMMENT, MY UNDERSTANDING
OF THE RECORD IS NOT THAT THERE WAS A 150 DAYS OF SURVEILLANCE CONDUCTED. MY
UNDERSTANDING OF THE RECORD IT'S AT DA118 THROUGH DA319 WITH A SUMMARY AT
DA877 THROUGH DA880. THERE WERE 44 DAYS EVER SURVEILLANCE CAPTURED. 26 OF THOSE
WERE OVERNIGHT. NINE OF THOSE WERE OVERNIGHT EITHER ON A WEEKDAY OR ON
A SUNDAY NIGHT INTO A MONDAY. UNLESS THE COURT HAS ANY QUESTIONS FOR ME I HAVE
NO FURTHER QUESTIONS. CHIEF JUSTICE RABNER: JUST ONE. I
WONDER IF YOU WOULD RESPOND TO MR. BALDWIN'S COMMENTS ABOUT LIMITS ON
QUESTIONING ABOUT SEXUAL INTIMATE SEE. MATHEU D. NUNN: AGAIN RECOGNIZING
THAT ALL OF US REPRESENT PEOPLE ON BOTH SIDES OF THESE INDICATES I THINK
-- I DON'T THINK IT CAN BE BARRED ABSOLUTELY. I DON'T THINK EXPLICIT QUESTIONS
ABOUT THE TYPE OF ACTIVITIES PEOPLE ENGAGE IN SHOULD BE PERMITTED. BUT I
CERTAINLY THINK IF THE DEFINITION OF COHABITATION AS WE ALL SEEM TO AGREE BASED
ON THE OPENING SENTENCE OF THE STATUTE, WHAT ONE WOULD NEED TO KNOW IS THE PERSON
IN AN EIGHT YEAR COMMITTED MONEY NOTHING GAS MOUSE RELATIONSHIP SHIP OR
HAVE THEY BEEN FRIENDS AND DATED OTHER PEOPLE DURING THOSE EIGHT YEARS? I KNOW
IT SHOULD BE COMPLETELY BARRED BUT I THINK TRIAL COURT JUDGES SHOULD THREAD
CAREFULLY IN WHAT'S ALLOWED. WE MOVE FOR SANCTIONS, WE CALL THE JUDGE ON THE PHONE.
THAT SERVES AS A GATEKEEPING FUNCTION. JUSTICE FASCIALE:
WHAT IS YOUR VIEW ON THIS FORM INTERROGATORY IDEA? WE KNOW IN THE PI WORLD,
IT'S DONE ALL THE TIME. MATHEU D. NUNN: IT IS. BUT I DON'T KNOW
THAT A FAMILY LAW COHABITATION CASE WOULD NECESSARILY BE SOMETHING THAT
IS APPROPRIATE FOR FORM INTERROGATORIES JUST BECAUSE THE FACTUAL PARTICULARS OF
THESE CASES ARE SO DIFFERENT. I THINK IT MIGHT BE A GOOD IDEA TO HAVE THE
PRACTITIONERS GET TOGETHER AND TALK ABOUT MAYBE THEMES OR CATEGORIES OF INFORMATION
THAT SHOULD GENERALLY BE TURNED OVER. JUSTICE PATTERSON:
A INTHEET CONFER? MATHEU D. NUNN: I THINK AS PART OF THAT CASE
MANAGEMENT CONFERENCE -- WE SHOULD BE DOING THAT ANY WAY. PERHAPS A MESSAGE FROM
THIS COURT BEFORE BURDENING THE TRIAL COURT WITH IT WOULD CERTAINLY NARROW
THOUGH ISSUES OF CONTENTION. CHIEF JUSTICE RABNER: THANK YOU MR. NUNN.
THANK YOU BOTH COUNSEL FOR BOTH OF THE ARGUMENTS.WE'LL TAKE IT UNDER ADVISEMENT.