Bliss v. Bliss

• Citation: 107 A.D.2d 394,487 N.Y.S.2d 26
• Parties: In the Matter of a Proceeding for Support Under the Uniform Support of Dependents Law Virginia R. BLISS, Petitioner-Respondent, v. Richard M. BLISS, Respondent-Appellant.
• Decision Date: 28 March 1985
• Court: New York Supreme Court Appellate Division

Page 26

487 N.Y.S.2d 26

107 A.D.2d 394

In the Matter of a Proceeding for Support Under the Uniform

Support of Dependents Law Virginia R. BLISS, Petitioner-Respondent, v. Richard M. BLISS, Respondent-Appellant.

Supreme Court, Appellate Division,

First Department.

March 28, 1985.

William G. O'Donnell, New York City, of counsel (O'Donnell, Fox, Gartner & Sobolewski, P.C., New York City, attorneys), for respondent-appellant.

Noreen M. Giusti, New York City, of counsel (Larry A. Sonnenshein, New York City, with her on brief; Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City, attorney), for petitioner-respondent.

Before MURPHY, P.J., and KUPFERMAN, ROSS, CARRO and MILONAS, JJ.

CARRO, Justice.

In 1938 the Legislature amended section 1159 of the Civil Practice Act, as now expressed in section 248 of the Domestic Relations Law, to overcome the prior bar to termination of alimony where the spouse has remarried. That section goes on to provide for the termination of alimony payments where a former husband offers "proof that the [former] wife is habitually living with another man and holding herself out as his wife, although not married to such man, ..." Five years earlier, in 1933, New York State ceased recognizing "common-law marriage" with the enactment of what is now section 11 of the Domestic Relations Law. In light of this decisive expression of public policy, courts must be extremely careful when construing the latter part of section 248 so as not to, de facto, create a sub-species of "common-law re marriage." That is the issue presented here.

The petitioner and respondent were married in New York on February 25, 1955. Over the next eight years they had four children and in 1960, moved to Wilton, Connecticut. Gradually over the 1960's the marriage began to deteriorate. The couple separated in the summer of 1969, with a judgment of divorce being entered on July 2, 1970, in the Fairfield (Connecticut) County Superior Court. Petitioner was awarded custody of the children and respondent was directed to pay $640 per month alimony "until the respondent's death or the petitioner's death or remarriage, whichever event shall first occur."

Soon after the divorce petitioner moved herself and the four children in with a neighbor, Thomas Fleming, a block or two from where the Bliss family had lived. Fleming and petitioner shared the master bedroom, had their meals together and Fleming paid the mortgage, utilities, taxes and insurance on the house. Also, he behaved much as a surrogate father to the children, driving them to social functions, and attending high school sports events with the boys and the daughter's dance performances. Fleming joined the family on holidays, contributed support to them all, and even attended pre-school and college graduations in Massachussetts and New Hampshire.

At one point, in early 1971, petitioner told respondent that he should stop paying alimony because she was going to marry Fleming. A few months later, however, she informed respondent that her plans had changed and she would not be remarrying, but not to worry about the alimony since she was going to get a job and take care of herself. Some nine months later, however, petitioner stated that she could no longer live without the alimony and respondent resumed payment.

In 1976 petitioner asked respondent to take the two youngest children because of her professed difficulties. She went to Florida "to build a new life," but returned after a year and then moved to Maine with Fleming, to the property those two had purchased jointly in 1972. Each had paid half the purchase price and they, to this day, split the property taxes. For at least three months petitioner lived with Fleming in a winterized barn on the land. She then moved to the Bahamas for seven months to live with her parents, but returned in May of 1980 to resume living with Fleming in the barn.

In October of 1981 petitioner moved out of the barn and into a house on property adjacent to the parcel she co-owned with Fleming, and she has remained in that house up to the present. Petitioner's mother allegedly owns this house. Although petitioner lives alone in the house, Fleming remains in the nearby "barn" and in petitioner's words, the two residences have "technically the same address." They, of course, continue a relationship, including the intermittent sharing of bed and board, although finances are clearly kept separate.

Respondent ceased alimony payments in July of 1982, after making them regularly for approximately ten years. In April of 1983 the instant proceeding was commenced pursuant to Article 3-A of the Domestic Relations Law (Uniform Support of Dependents Law), seeking an order enforcing the alimony provision in the Connecticut divorce judgment. Although respondent concedes that he is financially able to make the payments, he maintains that the alimony provision should be annulled pursuant to section 248 of the Domestic Relations Law, ante. The Family Court (124 Misc.2d 427, 476 N.Y.S.2d 748) agreed that petitioner's conduct satisfied the...