Citron v. Citron

• Decision Date: 27 September 1977
• Citation: 398 N.Y.S.2d 624,91 Misc.2d 785
• Parties: Jay CITRON, Plaintiff, v. Margaret CITRON, Defendant.
• Court: New York Supreme Court

Page 624

398 N.Y.S.2d 624

91 Misc.2d 785

Jay CITRON, Plaintiff, v. Margaret CITRON, Defendant.

Supreme Court, Special Term, Nassau County, Part V.

Sept. 27, 1977.

Jay J. Gurfein, P. C., New York City, for plaintiff.

Hession, Halpern & Bekoff, P. C., Mineola, for defendant.

ALEXANDER BERMAN, Justice.

Pursuant to the direction of a Justice of this Court, a hearing was held before me in connection with the motion of defendant, former wife, for entry of a money judgment for arrears in alimony and other relief and the cross-motion by plaintiff, former husband, for an order based solely on Section 248, Domestic Relations Law, seeking to strike from the final judgment of divorce a provision for alimony on the ground that "defendant herein is habitually living with another man and holding herself out as his wife."

At the commencement of the hearing, plaintiff conceded that he had made no payment of alimony for the period from January 1, 1977 to April 1, 1977, at $100 per week, for a total of $1400, and also that if a judgment were recovered against him for said arrears, he would be financially able to pay same.

Defendant conceded that she was, and had been for a number of months, living with a man, sharing with him her bedroom in her apartment wherein the two female children, aged 14 and 13, issue of the parties, also resided, occupying a separate bedroom. However, defendant denied that she was holding herself out to be the wife of this man, nor has any proof been presented to refute her contention in this regard. The evidence is that she referred to him as her "boy-friend," or "friend," and he referred to her as his "friend."

The man involved, Louis Nolls, is approximately 23 years of age, and she is 39. She is a social worker employed by a county agency dealing with drug and alcohol addiction and he is now employed as a caretaker on a small estate. She earns a substantial salary and he earns a small salary, less than $100 per week. Apparently, the two met in the course of her employment as a counsellor with the alcoholic addiction agency. His former alcoholic problem apparently resulted in his arrest and conviction, which resulted in a sentence of probation. Excerpts from his pre-sentence probation report were read into the record and revealed that Nolls and another man were found in a bar during the nighttime and that they ignited some papers and other material which resulted in a small fire. He and his companion were arrested in the premises. This background of defendant's "friend" is related herein only because plaintiff urges that the combination of the fact that this woman, living openly and notoriously with a male friend with this background, in the same household with her two children should not be tolerated by the Court. However counsel concedes that plaintiff, the father of these two children, does not seek to remove custody from his former wife, but only to deny her alimony. Obviously, the denial of alimony will not change the situation existing in defendant's home.

It is clear that defendant is not deriving any financial support from Nolls for he contributes, out of his marginal salary, only the sum of approximately $50 per week as his share of the expenses attributable to his occupancy, which sum obviously cannot be considered as support for defendant.

Plaintiff contends that the relationship of defendant with Nolls is tantamount to a husband and wife status in that they live together, sleep together, attend functions and visit with friends and relatives together in the same manner as would a husband and wife, and that such a relationship should be sufficient to justify the Court's invoking the provisions of § 248 even in the absence of a showing of a holding out. In Stern v. Stern, 88 Misc.2d 860, 389 N.Y.S.2d 265 I was faced with an almost identical factual situation and found that both a habitual living together and a holding out must be established before the punitive provisions of § 248 may be applied. The reasons set forth for my determination in Stern are equally applicable to this proceeding, and need not be set forth at length in this decision.

I will, however, discuss two of plaintiff's arguments addressed to my opinion in Stern. The first being that my holding in Stern is contrary to the intent of § 248. Counsel argues that the available legislative history of the 1938 amendment of then § 1159 (L.1938, Ch. 161) of the Civil Practice Act indicates its purpose was to prevent a situation where an ex-wife was supporting her lover with alimony received from her former husband. Leaving aside the fact that plaintiff has not established the fact that defendant is, in fact, supporting Nolls, this argument must fail on two grounds, the first being the wording of the section itself, the second the amendment's legislative history.

The wording of § 248 is clear and unambiguous. It mandates the termination of alimony in the event of the wife's remarriage and empowers a Court, in its discretion, to terminate it when it has been established that a wife is habitually living with another man and is holding herself out as that man's wife. Simple and concise; termination upon remarriage, possible termination upon assuming the outward appearance of a remarriage.

I am aware of the fact that despite the wording of § 248 the provision with respect to a holding out appears to have been relegated to antiquity in a number of recent cases. (See Northrup v. Northrup, 52 A.D.2d 1093, 384 N.Y.S.2d 319; Latzky v. Latzky, Gomez, J., N.Y.L.J. 1/9/76, p. 7, col. 3; In Matter of Anonymous, Fam. Ct. Nassau County, 395 N.Y.S.2d 1000; Levine v. Levine, 79 Misc.2d 149, 359 N.Y.S.2d 744.) These decisions must, if the rules governing statutory interpretation are to have any meaning at all, be interpreted as being based upon the premise that once a habitual living together has been established, a holding out will be presumed. Both here and in Stern the individuals involved readily conceded they were living together. However, in each instance, they testified that they went to great lengths to inform the world they were not married. With certain minor exceptions present in Stern, absolutely no evidence was brought forth to show that the parties had ever referred to themselves as husband and wife. Were I to presume a holding out in the face of the evidence at the hearing, I would be forced to say that the mere habitual living together gave rise to an irrebuttable presumption of a holding out. Such a holding would lead to the conclusion that the Legislature was being redundant when it provided for conjunctive requirements.

Obviously, such a conclusion would not be justified.

"In the construction of a statute, meaning and effect should be given to all its language, if possible, and words are not to be rejected as superfluous when it is practicable to give each a distinct and separate meaning." (McKinney's Consolidated Laws of New York, Statutes § 231.)

"Words are not to be rejected as superfluous when it is practicable to give to each a distinct and consistent meaning. 'The good expositor . . . makes every sentence have its operation to suppress all the mischiefs; he gives effect to every work of the statute; he does not construe it so that anything should be vain and superfluous . . .' " (Palmer v. Van Santvoord, 153 N.Y. 612, p. 616, citing Coke's Rep. Part VIII, p. 310.)

It may well be that the members of the 1938 Legislature did not, or could not, foresee a society in which unmarried couples could live together openly without fear of social ostracism. However, that lack of foresight cannot be used as the basis for disregarding the wording of § 248. If the holding out provision is now an anachronism because of present lifestyles, the remedy lies in amendment, not judicial fiat.

Put another way, § 248 means what it says, not what a Judge would like it to say.

Assuming, arguendo, that I am required to look behind the wording of the statute itself to determine its intent, a similar conclusion must be reached with respect to what must be established before the punitive provision of § 248 may be applied.

The only available indication of the intent of the 1938 amendment (L.1938, Chp. 161) to CPA § 1159 (now D.R.L. § 248) is to be found in the legislative bill jacket containing the various Bar Association recommendations and the letters sent to then Governor Lehman prior to his signing the bill into law. ^* From a review thereof and a reading of the decisions in Waddey v. Waddey, 168 Misc. 904, 6 N.Y.S.2d 163; 259 App.Div. 852, 20 N.Y.S.2d 406; 290 N.Y. 251, 49 N.E.2d 8, decided on the issue of retro-activity, it is possible to reconstruct the events leading up to passage and enactment.

The legislation in question...