FRANCES CASO VS. FERNANDO GUERRERO(FM-02-2622-11, BERGEN COUNTY AND STATEWIDE), A-3649-14T3

Background

Parties divorced in 2011; PSSA (incorporated into DJOD) required limited-duration alimony of $7,200/month for six years but allowed defendant to apply for modification/termination if plaintiff cohabited with an unrelated adult male.
PSSA also contained anti-Lepis language waiving future modification for changed circumstances (income, employment, etc.), but did not expressly eliminate the cohabitation clause.
Defendant filed to terminate alimony on March 25, 2013, alleging plaintiff was cohabiting with Jose Perez; a six-day plenary hearing followed after the trial court found a prima facie case of cohabitation.
Evidence showed repeated overnight stays, shared chores and household tasks, extensive social-media and family recognition as a couple, combined finances and gifts, plaintiff funding Perez and his family, and surveillance corroborating Perez’s presence at plaintiff’s home.
Trial judge found plaintiff cohabited and failed to rebut the presumption of economic intertwinement; terminated alimony retroactive to filing and entered judgment for overpayments plus counsel fees. Appellate division affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiff was cohabiting with a third party sufficient to terminate alimony	Caso said relationship was casual, no shared residence or financial interdependence; any cohabitation ceased during trial so alimony should be reinstated	Guerrero argued prolonged intimate relationship with shared household duties, social recognition, and plaintiff subsidizing Perez justified termination	Court held plaintiff cohabited; evidence showed enduring, marriage-like relationship with economic intertwinement, so termination affirmed
Whether PSSA’s anti-modification (anti-Lepis) provisions barred relief based on cohabitation	Caso argued the PSSA barred consideration of additional income/changed circumstances to modify alimony	Guerrero argued cohabitation clause was a separate, enforceable contingency permitting modification/termination despite anti-Lepis language	Court held cohabitation clause was enforceable and not negated by anti-Lepis terms; allowing otherwise would render cohabitation clause superfluous
Burden of proof and shifting presumption after prima facie showing of cohabitation	Caso argued she rebutted presumption by showing no economic benefit or dependence	Guerrero relied on presumption and documentary/surveillance evidence to show economic support and shared living	Court applied law: once prima facie shown, burden shifted to recipient; Caso failed to rebut; modification required
Whether termination should be retroactive or limited to cohabitation period	Caso argued any termination should have been limited to times court believed cohabitation existed and reinstated afterward	Guerrero sought termination effective from filing and recovery of overpayments	Court affirmed termination as of filing date and judgment for overpayments because cohabitation had existed for a substantial period prior to filing

Key Cases Cited

Konzelman v. Konzelman, 158 N.J. 185 (1999) (upholds enforceability of PSA clauses terminating alimony on cohabitation)
Gayet v. Gayet, 92 N.J. 149 (1983) (cohabitation may justify modification when third party contributes or lives without contributing)
Garlinger v. Garlinger, 137 N.J. Super. 56 (App. Div. 1975) (principles for determining changed circumstances affecting support)
Ozolins v. Ozolins, 308 N.J. Super. 243 (App. Div. 1998) (prima facie showing of cohabitation shifts burden to recipient to show no economic benefit)
Quinn v. Quinn, 225 N.J. 34 (2016) (PSA enforcement and effect of cohabitation findings on alimony enforcement)
Cesare v. Cesare, 154 N.J. 394 (1998) (standard of appellate review of Family Part factfindings)
Crespo v. Crespo, 395 N.J. Super. 190 (App. Div. 2007) (plenary review of legal conclusions)