Hall v. Hall
| Citation | 82 Misc.2d 814,372 N.Y.S.2d 344 |
| Parties | In the Matter of Shirley E. HALL, Petitioner, v. Russell F. HALL, Respondent. |
| Decision Date | 22 July 1975 |
| Court | New York Family Court |
The parties to this proceeding were married in 1945. A separation agreement was entered into by them in 1966, which provided for payments for support of $35.00 a week to the petitioner plus the mortgage and taxes on the marital residence. The terms of the separation agreement were incorporated in the divorce decree granted to petitioner in 1969.
In June, 1970, petitioner brought an enforcement proceedi in Family Court. That proceeding was resolved by an order made in July, 1970, pursuant to a stipulation in which the separation agreement was abrogated and the decree was modified to provide for payments of alimony to the petitioner in the aggregate sum of $82.50 a week 'until such time as (she) remarries * * *'.
The instant proceeding was brought by the respondent to have the aforesaid alimony provision of the modified divorce decree annulled under Section 248 of the Domestic Relations Law on the grounds that petitioner has been 'habitually living with another man and holding herself out as his wife, although not married to such man * * *'.
The proof established that the petitioner has been living continually with one, John Brookins, at residences in Watervliet and Lansingburgh, since 1973. A lease was executed by her and Brookins as Mr. and Mrs. Kernan at the Watervliet residence. Their current landlord also testified that when they engaged his premises they introduced themselves to him as husband and wife. This arrangement apparently continued throughout this proceeding. At the last hearing it was verified through the surveillance of a private detective hired by the respondent, conceded by Brookins and finally admitted by petitioner herself, although she had denied it in her initial testimony. Thus, the factual elements required to invoke the applicable provisions of Section 248 were clearly established.
Petitioner argues that respondent is barred from invoking Section 248 by reason of his voluntary stipulation, in the Family Court in 1970, for the modification of the original divorce decree, wherein he agreed to pay alimony of $82.50 a week until petitioner remarried. Supportive of petitioner's petition is the holding in Josephs v. Josephs, 78 Misc.2d 723, 358 N.Y.S.2d 326 (1974). In that case, the plaintiff husband obtained a divorce on cruelty grounds. pursuant to a stipulation in which he agreed to pay alimony to his wife until her death or remarriage. The court held that he had thereby waived his rights under Section 248, since the stipulation was a binding and enforcible contract. However, the court in the Josephs case overlooked a salient distinction between the legal effect of a pretrial stipulation and a separation agreement. It is well settled law that unless the parties state otherwise, such a stipulation merges in the judgment and does not survive it. See Nicoletti v. Nicoletti, 43 A.D.2d 699, 349 N.Y.S.2d 794 (2d Dept. 1973), and Hedaya v. Hedaya, 68 Misc.2d 165, 327 N.Y.S.2d 720 (1969). Therefore, the judgment herein as modified in 1970 pursuant to the parties stipulation is subject to further modification under both Sections 236 and 248 of the Domestic Relations Law.
The legislative history furnished the court by petitioner does not support her contention that Section 248 should only be applied in situations where the former wife is being supported by the man with whom she is living. Indeed, the letter to Governor Lehman dated March 24, 1938, by the sponsoring Assemblyman, cites an example similar to the facts disclosed here, namely, where both the ex-wife and her paramour are living on the ex-husband's alimony payments.
Petitioner's contention that Section 248 is unconstitutional is also rejected. See Waddey v. Waddey, 290 N.Y. 251, 49 N.E.2d 8 (1943). The State, in exercising its traditional power to regulate the marital...
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Sanseri v. Sanseri
...the former spouse was living with another man and the new couple had told their landlord that they were husband and wife. Hall v. Hall, 82 Misc.2d 814, 372 N.Y.S.2d 344 (Fam.Ct. Schenectady Cty.1975). Based on this evidence and the wife's casual declaration, the court found that the discret......
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Sanseri v. Sanseri
...the former spouse was living with another man and the new couple had told their landlord that they were husband and wife. Hall v. Hall, 82 Misc.2d 814, 372 N.Y.S.2d 344 (Fam.Ct. Schenectady Cty.1975). Based on this evidence and the wife's casual declaration, the court found that the discret......
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Pattberg v. Pattberg
...657 P.2d 153 (Okla.1983) ). In New York, constitutional challenges have either been dismissed or not entertained (Hall v. Hall, 82 Misc.2d 814, 372 N.Y.S.2d 344 (Fam.Ct., Schenectady Co., 1975); aff'd 55 A.D.2d 752, 389 N.Y.S.2d 448 (3rd Dep't 1976) (constitutional challenge rejected becaus......
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Sypek v. Sypek
...spouse cohabits with a third person, is to prevent a paramour from living on support provided by the payor-spouse [Hall v. Hall, 82 Misc.2d 814, 372 N.Y.S.2d 344, aff'd 55 A.D.2d 752, 389 N.Y.S.2d 448, see, also, Anno. Divorced Woman's Subsequent Sexual Relations or Misconduct as Warranting......