Brown v. Brown
| Decision Date | 20 January 1984 |
| Citation | 122 Misc.2d 849,472 N.Y.S.2d 550 |
| Parties | Bernard BROWN, Plaintiff, v. Miriam BROWN, Defendant. |
| Court | New York Supreme Court |
Plaintiff-husband moved for an order (a) vacating the alimony and child support provisions of the Judgment of Divorce, dated March 15, 1977, on the ground that the defendant has been living with another man.
Defendant-wife cross-moved for entry of a money judgment representing support and alimony arrears and for an order adjudging plaintiff in contempt of court for his wilful failure to pay pursuant to the Judgment of Divorce, as well as for other ancillary relief.
The parties were granted a dual divorce, each on the grounds of cruel and inhuman treatment, on March 15, 1977. Prior to the decree, the parties had entered into a stipulation in open court, which was incorporated into the divorce decree. That stipulation provided in relevant part:
(a) The plaintiff shall pay to the defendant as and for alimony and child support, the sum of $325.00 dollars per week, commencing the week starting January 10th, 1977, said payment shall continue until such time as the defendant remarries, dies, or lives with another man, or until the plaintiff dies, whichever event sooner occurs;
At bar, plaintiff contends that defendant has violated the terms of the stipulation by living with another man, thereby terminating plaintiff's obligation to pay alimony and support and triggering the sale of the marital home. It is plaintiff's position that the term living with another man as used in the stipulation does not necessarily require cohabitation.
Defendant denies she is living with another man, although she admits that a man, one Lester Berzak, did reside in the marital home for over two years. It is defendant's position that she did not live with Mr. Berzak but rented the first two levels of the house to him in order to reduce household expenses. Defendant further contends that plaintiff's conduct in suspending alimony and support payments in May 1983 was wilful and deliberate, and that plaintiff's present application is nothing more than an attempt to harass her.
A hearing was held before this Court on December 5, 7, 8, 9, 12, 13, 1983 and based upon the credible evidence adduced therein the Court finds as follows:
At the commencement of the hearing plaintiff conceded that he had made no alimony payments since May 1983, and also that if a judgment were recovered against him for said arrears, he would be financially able to pay them.
At this point the Court would note that the relief requested by plaintiff would result in a forfeiture of defendant's future rights to alimony and support. Due to the severity of that forfeiture, the plaintiff, who is seeking to enforce the agreement, must establish by clear and convincing evidence that defendant has violated said stipulation in that defendant is living with another man. Zipparo v. Zipparo, 70 A.D.2d 616, 416 N.Y.S.2d 321 (1979).
Although Zipparo, supra, dealt with forfeiture of alimony due to cohabitation, the specific reason for the forfeiture was not determinative of the burden of proof; it is the very fact that there will be a forfeiture of support which mandates the higher standard of proof.
With respect to the issue of defendant's living with another man, the credible evidence adduced at the hearing revealed that one, Lester Berzak, concededly a man, moved into the marital home sometime in January 1981 and lived there on a regular basis until October or November 1983. That he was a friend of the defendant's brother and knew defendant and her family for some years prior to moving into the premises.
Further, that Mr. Berzak arranged with defendant to rent...
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Gordon v. Gordon
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