NJSBA Family Law Section

FAMILY LAW

20-2-9139 Robitzski v. Robitzski, App. Div. (per curiam) (15 pp.)

In this post judgment matrimonial matter, defendant ex-husband appealed the Family Part's order denying his request to compel additional discovery from plaintiff ex-wife relating to cohabitation issues that could affect the his ongoing obligation to pay alimony. The motion judge denied the ex-husband's request because it found that he had not made a prima facie showing of cohabitation that would justify such full discovery and the attendant intrusion upon the ex-wife's privacy. As part of his legal argument, the ex-husband also challenged the motion judge's rulings concerning hearsay. The panel affirmed the motion judge's determination, finding that under either the statutory definition of cohabitation or the prior definition established in case law, the ex-husband did not present sufficient evidence of a prima facie claim of cohabitation, as he failed to present evidence that the finances of the ex-wife and her significant other were intertwined or that the ex-wife was financially dependent on the significant other, or of shared household chores. Further, the panel found that the potential applicability of the adoptive admissions exception to the hearsay rule was inconsequential because, even if all of the Facebook materials showing the ex-wife's activities with her significant other proffered by the ex-husband were considered, the trial court properly found that the ex-husband simply had not presented a prima facie case. Therefore, the trial court did not misapply its authority in declining the ex-husband's demand for full discovery.