| Mastrocovo v Capizzi |
| 2011 NY Slip Op 06689 [87 AD3d 1296] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| Colleen Mastrocovo, Formerly Known as Colleen Capizzi,Respondent, v Joel Capizzi, Appellant. |
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Appeal from a judgment and order (one paper) of the Supreme Court, Erie County (Tracey A.Bannister, J.), entered June 21, 2010 in a postjudgment divorce action. The judgment and orderdenied the application of defendant to be relieved of his maintenance obligation and awardedplaintiff a money judgment for maintenance arrears.
It is hereby ordered that the judgment and order so appealed from is unanimously modifiedon the law by granting the relief sought in the order to show cause with respect to maintenanceand judgment is entered in favor of plaintiff for maintenance arrears in the amount of $1,413.38,and as modified the judgment and order is affirmed without costs.
Memorandum: By order to show cause, defendant sought, inter alia, to modify a judgment ofdivorce by terminating his maintenance obligation based on plaintiff's cohabitation with anotherman. Supreme Court denied the relief sought in the order to show cause with respect tomaintenance and awarded judgment to plaintiff for maintenance arrears in the amount of$9,015.38. It appears from the record that the order to show cause sought other relief as well. Asper the CPLR 5531 statement, however, only the issue of maintenance is before us on this appeal.The parties' property settlement agreement (agreement), which was incorporated but not mergedinto the judgment of divorce, required defendant to pay maintenance of $1,000 per month for4½ years or until "the death of either party, remarriage of the wife or the continuedcohabitation of the wife as defined in Domestic Relations Law § 248" (emphasisadded). There is no dispute that plaintiff lived with her boyfriend in a rental home since August2008, approximately one year before defendant filed the order to show cause. Plaintiff otherwisehad no separate residence from that of her boyfriend, and they shared a bedroom.
Following an evidentiary hearing, the court denied defendant's order to show cause withrespect to maintenance. The court determined that defendant, to establish grounds for terminationof maintenance, was required under the agreement to prove that plaintiff cohabitated withanother man and held herself out as the other man's wife. We conclude that the courterred in denying the order to show cause with respect to maintenance because defendant wasrequired to prove only that plaintiff cohabitated with another man.
"It is well settled that the parties to a matrimonial agreement may condition a husband'sobligation to support his wife solely on her refraining from living with another man without the[*2]necessity of the husband also proving that she habituallyholds herself out as the other man's wife as Domestic Relations Law § 248 requires"(Pesa v Pesa, 230 AD2d 837 [1996]). Here, as noted, the parties' agreement provides fortermination of maintenance upon plaintiff's "continued cohabitation" with another man, and thereis no requirement therein that plaintiff hold herself out as the other man's wife. Although plaintiffis correct that the agreement refers to Domestic Relations Law § 248, which in turn refersto "proof that the wife is habitually living with another man and holding herself out as his wife,although not married to such man," we conclude that the reference in the agreement to section248 is solely for the purpose of defining cohabitation. Indeed, it is clear that there are twoprongs under the statute, and that habitually living with another man is a prong that is separateand distinct from the second prong of holding oneself out as the other man's wife (see Matterof Bliss v Bliss, 66 NY2d 382, 387 [1985]; Northrup v Northrup, 43 NY2d 566,570-571 [1978]; Armas v Armas, 172 AD2d 1084 [1991]). "The absence of proof in aparticular case does not justify an inference that cohabitation alone manifests a holding out"(Northrup, 43 NY2d at 571).
"Under the standard canon of contract construction expressio unius est exclusio alterius, thatis, that the expression of one thing implies the exclusion of the other" (Matter of New York City AsbestosLitig., 41 AD3d 299, 302 [2007]), the fact that the agreement refers only to thecohabitation prong of Domestic Relations Law § 248 compels us to conclude that theparties did not intend to include the second prong of plaintiff holding herself out as another man'swife. The evidence at the hearing established that plaintiff was in fact cohabiting with anotherman. Indeed, plaintiff does not dispute that fact. It follows that defendant was entitled totermination of his maintenance obligation, and that the termination is effective as of the date offiling of his order to show cause, i.e., August 28, 2009 (see generally Matter of Dox vTynon, 90 NY2d 166, 173 [1997]; Domestic Relations Law § 236 [B] [9] [b]). As ofthat date, defendant owed $1,413.38 in maintenance from July 15, 2009, when the maritalresidence was sold and the maintenance obligation was triggered under the agreement. Wetherefore modify the judgment and order by granting the relief sought in defendant's order toshow cause with respect to maintenance and reducing the amount awarded to plaintiff to$1,413.38. Present—Scudder, P.J., Smith, Carni, Lindley and Martoche, JJ.