Salas v. Salas

In a matrimonial action in which the parties were [850] divorced by judgment dated April 11, 1983, the plaintiff wife appeals from an order of the Supreme Court, Suffolk County (Jones, J.), entered December 3, 1984, which, after a hearing, granted the defendant husband’s renewed motion for an order suspending his obligation to make maintenance payments and directing the sale of the former marital residence, and which denied her cross motion for a money judgment against the defendant for arrears of maintenance, an income deduction order and counsel fees. Ordered that the order is reversed, on the law and the facts, with costs, the defendant’s motion is denied and the plaintiff’s cross motion is granted, and the matter is remitted to the Supreme Court, Suffolk County, to fix the amount of arrears and counsel fees to be awarded to the plaintiff and to set the terms of the income deduction order pursuant to CPLR 5241 (g) and 5242. The parties herein were married on June 24, 1967. In 1982, the plaintiff wife commenced the instant action for divorce, predicated upon the defendant’s alleged cruel and inhuman treatment of her during the course of the marriage. On January 24, 1983, the parties entered into a stipulation of settlement which was subsequently incorporated, but not merged, into the judgment of divorce and which provided, inter alia, that the defendant would pay the plaintiff the sum of $100 per week in rehabilitative maintenance for a period of 8 ½ years and that plaintiff would have exclusive possession of the marital residence until the emancipation of both of the children of the marriage. The stipulation further provided that the foregoing terms were to remain in force and effect "until the happening of any one of the following events: 1, the death of the plaintiff; 2, the remarriage of the plaintiff [and] 3, the plaintiff living together with another male unrelated by blood”. Upon the occurrence of any of the aforesaid events, defendant’s obligation to pay spousal support was to terminate and the marital residence was to be immediately sold. In July of 1984, the defendant moved for an order directing the sale of the parties’ former marital residence and suspending the defendant’s obligation to pay maintenance, alleging that the plaintiff was now living with another man. The plaintiff cross-moved, inter alia, for leave to enter a judgment for arrears in maintenance. Following a hearing, Special Term found that the plaintiff was indeed living with another man, in violation of the parties’ stipulation so as to cause the cessation of the defendant’s obligation to pay spousal support [851] as well as necessitating the sale of the former marital abode. The plaintiff now appeals from this order. Upon our review of the record, we find that the defendant failed to sustain his burden of proving that the plaintiff was living with another man so as to trigger the forfeiture provisions of the stipulation of settlement with respect to the defendant’s maintenance obligations and the plaintiffs right to exclusive possession and occupancy of the marital residence (see, Smith v Smith, 88 AD2d 658; Spillman v Spillman, 67 AD2d 942, affd 49 NY2d 745). While the present record discloses that the plaintiff had maintained a close personal relationship with a man unrelated to her by blood, we find that the evidence simply does not sustain the defendant’s allegation that his former wife had violated the terms of the stipulation of settlement by cohabiting or living with this individual. The term "living together” which, as our dissenting colleague aptly notes, defies precise definition, should encompass a possessory interest in the home. The plaintiff’s friend, however, according to the testimony elicited at trial, maintains a separate legal residence in Nesconset, New York. He keeps virtually all of his personal belongings and receives all of his mail at that address. Moreover, his driver’s license, registration and income tax returns all bear the Nesconset address as his residence. Although he admittedly slept at the subject premises on occasion, he testified that he frequently slept at the homes of his sister and his brother as well. Indeed, the record reveals that he has never spent a full week in the plaintiffs home, that he did not regularly shower there, and that he was required to bring with him a change of clothes and transport other personal accessories if he anticipated sleeping there overnight. He did not financially support the plaintiff and their relationship, which can best be described as transitory, was sporadically aborted by several "breakups”, sometimes lasting for a period in excess of one month, and during which time there would be no contact between them. Thus, the evidence adduced at the hearing clearly demonstrated that the plaintiffs friend possessed no legal rights to the premises in dispute. Rather, he was permitted to stay overnight at the plaintiffs whim, which she elected to exercise on a sporadic basis. Although it cannot be disputed that he rarely slept in his own living quarters, the fact nevertheless remains that he did maintain a separate legal residence and that he did not consistently sleep in the plaintiffs home but also slept, with as great a degree of frequency, in the homes of [852] his family members. The manner in which he chose to maintain his own living quarters and the conditions of this residence simply have no bearing on the issue raised herein. We similarly find that the quality of the relationship between the plaintiff and her friend and the fact that they "cared for the needs of one another” is not dispositive of the issue of whether they had lived together in violation of the parties’ separation agreement. That the plaintiff’s friend provided emotional support and companionship to the plaintiff and the fact that they had been intimate does not, in and of itself, compel the conclusion that they had been cohabiting on a permanent basis, thereby necessitating that the plaintiff and her daughters lose their home. Rather, the credible evidence adduced at trial reveals that the plaintiff’s friend’s sleeping arrangements were usually spontaneously made, that he often watched the plaintiff’s children while she was at school and slept on the couch in the event she returned home at a late hour, and that if he provided some financial assistance to the plaintiff, it was only because she was in dire financial straits by virtue of the fact that the defendant wrongfully engaged in self-help tactics and unilaterally decided to withhold support payments. In short, we conclude that the defendant has failed to prove by a preponderance of the evidence that the plaintiff had forfeited her rights under the stipulation by living with another man. The plaintiff and her friend maintained separate residences, frequently slept in those separate residences, did not share household expenses and did not otherwise function as an "economic unit” (see, Scharnweber v Scharnweber, 105 AD2d 1080, affd 65 NY2d 1016; Brown v Brown, 122 AD2d 762, appeal dismissed 68 NY2d 910). Accordingly, Special Term’s conclusion that this relationship was tantamount to and could properly be characterized as "living together” was unwarranted. We further find, and the record, in fact, reflects that the defendant failed to satisfy his obligation to pay spousal support for the 27 weeks preceding the hearing conducted by Special Term. The defendant’s failure to do so was without justification and plaintiff’s cross motion, inter alia, for leave to enter a judgment for the amount of arrears due and owing should, therefore, have been granted. For similar reasons, we find that the plaintiff was improperly denied an income deduction order (see, CPLR 5242 [b]). Finally, after considering the circumstances of this case as [853] well as the needs and financial abilities of the parties, we conclude that an award of counsel fees in favor of the plaintiff would be appropriate. Accordingly, the matter is hereby remitted to the Supreme Court, Suffolk County, for further proceedings consistent herewith. Eiber, J. P., Kunzeman and Kooper, JJ., concur.