| Fecteau v Fecteau |
| 2012 NY Slip Op 05684 [97 AD3d 999] |
| July 19, 2012 |
| Appellate Division, Third Department |
| Janet E. Fecteau, Respondent, v Marc N. Fecteau,Appellant. |
—[*1] Assaf & Siegel, Albany (David M. Siegel of counsel), for respondent.
Spain, J. Appeal from an order of the Supreme Court (Teresi, J.), entered December 10, 2010in Albany County, which, among other things, denied defendant's motion to terminate a prioraward of spousal maintenance.
The parties entered into a separation agreement in 2004 in which defendant agreed, amongother things, to pay plaintiff a monthly spousal support payment until the occurrence of any oneof four specified termination events. The agreement, amended in 2005 as to the monthlypayment, was incorporated into, but not merged with, a 2007 judgment of divorce.[FN*]One of the events that would trigger termination of plaintiff's spousal support was her "livinghabitually with another person over the age of [18] years in a spousal type of relationship." InSeptember 2010, defendant moved to terminate his spousal support obligation, alleging thatplaintiff had triggered the termination provision by cohabiting with an adult male (hereinafter themale). After a full hearing, Supreme Court denied the motion and awarded plaintiff counsel fees.Defendant now appeals, and we affirm.
" 'A separation agreement that is incorporated into but not merged with a divorce decree[*2]is an independent contract binding on the parties unlessimpeached or challenged for some cause recognized by law' " (Bjerke v Bjerke, 69 AD3d 1042,1043-1044 [2010], quoting Merl v Merl, 67 NY2d 359, 362 [1986] [citations omitted];see Matter of Stewart v Stewart, 93AD3d 907, 908 [2012]). Principles of contract law apply to the interpretation of suchagreements (see Hejna v Reilly, 88AD3d 1119, 1120 [2011]; Matter ofWasyliw v Smith, 18 AD3d 931, 932 [2005]). Where the language of the agreement isclear, the court must determine the intent of the parties by examining the agreement itself (see Desautels v Desautels, 80 AD3d926, 928 [2011]; Matter of Wasyliw v Smith, 18 AD3d at 932; Hendrix v Hendrix, 2 AD3d 1257,1258 [2003]). Whether the language is ambiguous is a question of law (see Hendrix vHendrix, 2 AD3d at 1258), and any ambiguity "must be resolved by determining the parties'intent at the time of contracting, either from within the four corners of the document, if possible,or, as a last resort, from whatever extrinsic evidence is available" (Cortese v Redmond,199 AD2d 785, 786 [1993]; seeDagliolo v Dagliolo, 91 AD3d 1260, 1260 [2012]; Bjerke v Bjerke, 69 AD3d at1044).
As the record amply supports the conclusion that plaintiff has been living habitually with themale, an adult, the dispute distills to whether plaintiff's relationship with him is a "spousal typeof relationship" within the meaning of the separation agreement; the termination clause itselfdoes not define or otherwise provide guidance as to the meaning of that phrase. Moreover,consideration of the entirety of the agreement fails to shed light on the parties' intent in draftingthe "spousal type of relationship" language, although it is clear that it does not equate to marriageinasmuch as the agreement contains a separate termination provision regarding remarriage byplaintiff. Both parties appear to concede, and we agree, that, given the ambiguous language, itwas necessary for Supreme Court to hold a hearing to consider extrinsic evidence in order todetermine their intentions (see Dagliolo v Dagliolo, 91 AD3d at 1260).
Defendant testified that, although not represented by counsel during the negotiations, he was"very actively involved" in drafting the terms of the agreement, and that it was he who proposedthe phrase at issue. As to his intent in including the "spousal type of relationship" phrase,defendant provided various explanations, including: that it was "intended to cover any and allpossible occurrences of [plaintiff] living under the same roof in any type of relationship, underany circumstance, with anyone on a regular basis, over the age of 18"; that it "was designed to beany situation where two adults are living under the same roof"; and "[i]t meant a romanticrelationship. A relationship with a man. A relationship with a woman. It did [not] matter. Underthe same roof was all it was designed to capture. Romantic or not." Finally, defendant stated thatthe clause "had nothing to do with money. It was about a relationship between a man and awoman and the sanctity of it." He asserted that it was "irrelevant" to him whether plaintiff'sfinances were shared with the person with whom she habitually lived.
Plaintiff testified that the disputed phrase was drafted so that defendant would provide for her"in the manner to which [she] had become accustomed" during the parties' marriage. She thoughta "spousal type of relationship" was "being married in every way other than that legal piece ofpaper, total. Same names on the checking accounts. What [she had with defendant]. Mixingeverything. Commingling funds and not worrying about" owing one another "$10 for [a] steak."Supreme Court found the majority of defendant's testimony regarding his intentions surroundingthe disputed phrase to be self-serving and incredible and rejected his broad proposed definition ofthe phrase. The court found plaintiff's testimony and that of the male to be credible andconcluded that the evidence demonstrated that their relationship was not a spousal type ofrelationship within the meaning of the termination clause.[*3]
The record fully supports Supreme Court's conclusion.Plaintiff and the parties' teenage daughter moved in with the male in the spring of 2010.According to plaintiff, she was experiencing financial hardship from her mortgage payments andcarrying charges on her house and substantial credit card debt. After discussing her finances withthe male, the two agreed that plaintiff and the daughter would stay in his home until plaintiffbecame financially secure, and that this arrangement would keep the daughter in their currentschool district and allow plaintiff to sell her house. Although this arrangement did not initiallyrequire plaintiff to pay rent or utilities, they did agree that she would begin to pay both after thesale of her house. While they did not determine an exact date where the arrangement would end,they believed that it would take approximately two to three years before plaintiff was financiallysecure, at which point she planned to purchase or rent a residence of her own. Plaintiff's attemptsto carry through with this plan are evidenced by her efforts to sell her house after making variousrenovations, with his assistance, to make it more attractive to buyers.
While there is evidence that plaintiff and the male share many responsibilities around hishome, including cooking meals, buying groceries and doing laundry for one another, the recorddemonstrates that all of plaintiff's finances remain independent of his and neither holds anyexpense, debt or asset of the other. Indeed, the only evidence of money being exchanged betweenthem is his $2,000 loan to her in 2008, which she had fully repaid before the hearing. Althoughplaintiff named him as the beneficiary of a $25,000 term life insurance policy, she testified thatshe did so because he is familiar with her children, and she trusted him to distribute the proceedsamong her children according to their needs. Although his current marriage would prohibit anygreater commitment until after any divorce proceedings are finalized, the male and plaintiff bothtestified that, while their relationship is romantic, they have not discussed any such plans and,instead, enjoy their relationship as it currently exists. According deference to Supreme Court'sability to view the witnesses, observe their demeanor and make credibility determinations, thecourt's decision should be affirmed (seeMatter of Gravelding v Loper, 42 AD3d 740, 742 [2007]).
Finally, inasmuch as defendant has not shown that Supreme Court had any interest inreaching a particular outcome and his assertions of bias appear to be little more than his owndispleasure or disagreement with the court's decisions, his argument that any further proceedingshould be assigned to another judge is without merit (see Matter of Albany County Dept. of Social Servs. v Rossi, 62 AD3d1049, 1050 [2009]). The court's occasional impatience with each of the attorneys andwitnesses is reflected in the record, but cannot be said to have preordained the outcome orprejudiced defendant, so as to reveal a bias or require recusal.
Peters, P.J., Lahtinen, Kavanagh and McCarthy, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote *: It was also further amended, asto its duration, in a 2008 stipulation.