Markhoff v. Markhoff

• Decision Date: 21 March 1996
• Citation: 225 A.D.2d 1000,639 N.Y.S.2d 565
• Parties: Esther MARKHOFF, Appellant, v. Paul MARKHOFF, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 565

639 N.Y.S.2d 565

225 A.D.2d 1000

Esther MARKHOFF, Appellant, v. Paul MARKHOFF, Respondent.

Supreme Court, Appellate Division,

Third Department.

March 21, 1996.

John MacCrate III, East Setauket, for appellant.

Bender & Bodnar P.C. (Joel C. Bender, of counsel), White Plains, for respondent.

Before MERCURE, J.P., and CREW, CASEY, YESAWICH and SPAIN, JJ.

CREW, Justice.

Appeals (transferred to this court by order of the Appellate Division, Second Department) (1) from an order of the Supreme Court (Nastasi, J.), entered March 24, 1994 in Westchester County, which, inter alia, granted defendant's cross motion to terminate maintenance, and (2) from that part of an order of said court, entered August 3, 1994 in Westchester County, which denied plaintiff's cross motion for counsel fees.

The parties were married in 1963 and divorced in 1991. Insofar as is relevant to this appeal, defendant was directed to, inter alia, pay plaintiff $4,000 per month in maintenance until her death or remarriage. Defendant apparently made such payments without incident until June 1993. When defendant failed to make the June 1993 maintenance payment and the July 1993 maintenance and child support payments, plaintiff moved for, inter alia, an income deduction order and counsel fees. In response to plaintiff's motion, defendant cross-moved for, inter alia, a judgment terminating maintenance payments on the ground that plaintiff was habitually living with another man and holding herself out as his wife. Defendant also sought restitution of all payments made to plaintiff during her period of cohabitation.

Following a hearing, Supreme Court concluded that there indeed was sufficient evidence to find that plaintiff was habitually living with another man and holding herself out as his wife (see, Domestic Relations Law § 248) and, by order entered March 24, 1994, terminated defendant's obligation to pay maintenance retroactive to July 22, 1993. Thereafter, in June 1994, defendant moved by order to show cause for a money judgment against plaintiff in the amount of the maintenance paid by him during plaintiff's period of cohabitation and an order restraining plaintiff from selling the marital residence, to which she had been awarded exclusive title and possession, unless the judgment was satisfied or the funds sought were placed in escrow. Plaintiff responded by cross-moving for, inter alia, a stay of execution and counsel fees. Supreme Court granted defendant a money judgment against plaintiff but awarded plaintiff a stay of execution pending her appeal. Thereafter, by order entered August 3, 1994, Supreme Court, inter alia, denied plaintiff's application for counsel fees. Plaintiff now appeals from Supreme Court's March 24, 1994 order terminating maintenance and directing restitution and from so much of Supreme Court's August 3, 1994 order as denied her application for counsel fees.

In accordance with Domestic Relations Law § 248, Supreme Court may, in its discretion and upon application of the ex-husband on notice, annul those provisions of a final judgment or order relating to maintenance "upon proof that the wife is habitually living with another man and holding herself out as his wife, although not married to such man" (emphasis supplied) (see, Northrup v. Northrup, 43 N.Y.2d 566, 570-571, 402 N.Y.S.2d 997, 373 N.E.2d 1221; Levy v. Levy, 143 A.D.2d 975, 977, 533 N.Y.S.2d 625; Gershen v. Gershen, 120 A.D.2d 641, 642, 502 N.Y.S.2d 240). Based upon our review of the record as a whole, we are of the view that defendant established, by a preponderance of the credible evidence (see generally, Lefkon v. Drubin, 143 A.D.2d 400, 532 N.Y.S.2d 567, lv. denied, lv. dismissed 74 N.Y.2d 612, 547 N.Y.S.2d 846, 547 N.E.2d 101, 74 N.Y.2d 791, 545 N.Y.S.2d 106, 543 N.E.2d 749; Salas v. Salas, 128 A.D.2d 849, 852, 513 N.Y.S.2d 770, lv. dismissed 70 N.Y.2d 747, 519 N.Y.S.2d 1033, 514 N.E.2d 391), that plaintiff indeed was habitually living with another man and holding herself out as his wife and, under the circumstances, we cannot say that Supreme Court abused its discretion in terminating maintenance.

In order to demonstrate that plaintiff was habitually living with another man, defendant was required to show that (1) plaintiff had a relationship with another man, (2) she was in fact living with that man as something other than a roommate or housemate, and (3) her cohabitation with him was habitual (see, Pattberg v. Pattberg, 130 Misc.2d 893, 894-895, 497 N.Y.S.2d 251). Here, the record reflects that plaintiff entered into an exclusive relationship with Israel Peled in February 1992; the following month, Peled filed a change of address card and began receiving mail at plaintiff's residence. Although both plaintiff and Peled testified that Peled did not move in with plaintiff until September 1992, the record indicates that as early as June 1992, Peled was writing checks on an account in his name bearing plaintiff's address. The record further reflects that as of July 1992, both of Peled's vehicle registrations bore plaintiff's address and Peled's personal effects had been moved to plaintiff's residence. During their conceded period of cohabitation (September 1992 to September 1993), plaintiff and Peled shared a bedroom and expenses, ate meals together...