Pattberg v. Pattberg

• Decision Date: 04 December 1985
• Citation: 497 N.Y.S.2d 251,130 Misc.2d 893
• Parties: Robert PATTBERG, Plaintiff, v. Lillian F. PATTBERG, Defendant.
• Court: New York Supreme Court

Page 251

497 N.Y.S.2d 251

130 Misc.2d 893

Robert PATTBERG, Plaintiff, v. Lillian F. PATTBERG, Defendant.

Supreme Court, Special Term,

Suffolk County, Part V.

Dec. 4, 1985.

Graves, Gold & Darbee, Oakdale, (Richard M. Gold, of counsel), for plaintiff.

Lynne Adair Kramer, Commack, (Lita Smith-Mines, of counsel), for defendant.

Robert Abrams, Atty. Gen., New York City, Pursuant to Executive Law.

MEMORANDUM

WILLIAM R. GEILER, Justice.

Defendant moves for an order staying a hearing on modification of support pursuant to DRL § 248 pending a determination as to the constitutionality and enforceability of said statute which provides in pertinent part as follows:

"The court in its discretion upon application of the husband on notice, upon proof that the wife is habitually living with another man and holding herself out as his wife, although not married to such man, may modify such final judgment and any orders made with respect thereto by annuling the provisions of such final judgment or orders or of both, directing payment of money for the support of such wife."

The phrase "habitually living with another man and holding herself out as his wife" has previously given rise to some controversey and the question of what conduct on the part of the ex-wife was sufficient to satisfy the statute had long troubled the courts (See, In re Anonymous, 90 Misc.2d 801, 395 N.Y.S.2d 1000 (Fam.Ct., Nassau Co., 1977); Levine v. Levine, 79 Misc.2d 149, 359 N.Y.S.2d 744 (Sup.Ct., Kings Co., 1974); Citron v. Citron, 91 Misc.2d 785, 398 N.Y.S.2d 624 (Sup.Ct., Nassau Co., 1977); Stern v. Stern, 88 Misc.2d 860, 389 N.Y.S.2d 265 (Sup.Ct., Nassau Co., 1976); Bliss v. Bliss, 107 A.D.2d 684, 487 N.Y.S.2d 26 (1st Dep't 1985) ).

The requirement of "habitually living with another man" consists of three elements. The first is the duration of the ex-wife's relationship; this is, what length of time constitutes "habitually." Although no minimum length of time has been specified by the courts or by the legislature, this element requires more than an intermittent intimacy and will not be fulfilled if the ex-wife merely spends a night or weekend with another man (See Watson v. Watson, 39 A.D.2d 660, 331 N.Y.S.2d 730 (1st Dep't 1972) ). Relationships of five years, one year, nine months and six months have been held sufficient to satisfy this element (Bliss v. Bliss, supra); Stern v. Stern, supra; Krawczuk v. Krawczuk, 49 A.D.2d 1003, 374 N.Y.S.2d 70 (4th Dep't 1975); Northrup v. Northrup, 52 A.D.2d 1093, 384 N.Y.S.2d 319 (4th Dep't 1976), rev. 43 N.Y.2d 566, 402 N.Y.S.2d 997, 373 N.E.2d 1221 (1978). The second element, "living with", involves the character of the relationship, and, although the scope of this element has not clearly been determined, it apparently does not extend to the situation where the ex-wife is merely sharing an apartment or house with another man in the manner of a roommate or housemate (See Citron v. Citron, 91 Misc.2d 785, 398 N.Y.S.2d 624 (Sup.Ct., Nassau Co., 1977); In re Anonymous, supra; Stern v. Stern, supra). The ex-wife must also have a sexual relationship with the man with whom she is living (Citron v. Citron, supra; Stern v. Stern, supra). A review of the cases in which an annulment of a maintenance award has been granted reveals a common pattern where the ex-wife and her "POSSLQ" (A "POSSLQ" is (are) two persons of the opposite sex sharing living quarters, See Bureau of the CENSUS, U.S. Dep't of Commerce, Statistical Abstract of United States (1980), at 44-45; See also, Oldham, Cohabitation by an Alimony Recipient Revisited, 20 Journal of Family Law 615, 646) shared living accommodations, slept together, ate together, shared expenses and generally conducted themselves as a couple (Note, Northrup v. Northrup: Termination of Alimony under Section 248 of New York's Domestic Relations Law, 43 Albany L.Rev (1979) ). The third element requires that the ex-wife's relationship be with another man. The statute specifically refers to a heterosexual relationship and it has been held that allegations of an ex-wife's homosexual relationship can not provide a basis for the termination of alimony pursuant to DRL § 248 (Kenney v. Kenney, 76 Misc.2d 923, 352 N.Y.S.2d 344 (Sup.Ct., N.Y. Co., 1974) ).

Before a former husband can obtain relief under DRL § 248, a second requirement must be fulfilled. He must show that his former wife is representing herself as the wife of the man with whom she lives (Northrup v. Northrup, supra). Northrup has established that a presumption of "holding out" based solely upon habitually living together is unjustified (43 N.Y.2d 566, 571, 402 N.Y.S.2d 997, 999, 373 N.E.2d 1221, 1223 (1978) ). The court specifically emphasized that DRL § 248 consists of a two-part test and that both elements must be proved. Some "assertive conduct" on the part of the ex-wife is needed in addition to habitually living with another man in order to find that a "holding out" has occurred (Id.).

Aside from New York, ten states have enacted statutes providing for modification or termination of alimony payments upon a showing that the recipient spouse is living or cohabiting with another person (See, Ala.Code § 30-2-55 (1983); Cal.Civ.Code § 4801.5 (West Cum.Supp.1984); Conn.Gen.Stat.Ann. § 46b-86 (West Cum.Supp.1984); Ga.Code Ann. § 19-6-19 (Cum.Supp.1984); Ill.Ann.Stat. ch. 40, § 510(b) (Smith-Hurd Cum.Supp.1984); La.Civ.Code Ann. art. 160 (West Cum.Supp.1984); Okla.Stat.Ann. tit. 12, § 1289 D (West Cum.Supp.1983); Pa.Stat.Ann. tit. 23, § 507 (Purdon Cum.Supp.1984); Tenn.Code Ann. § 36-5-101(a)(3) (Supp.1984); Utah Code Ann. § 30-3-5(3) (1984) ). These statutes vary substantially in their requirements and effects. Some automatically terminate alimony upon proof of cohabitation (La., Ill., Pa.), while others allow modification instead of termination (Cal., Conn., Ga., Okla., Tenn.). In some states proof of cohabitation and proof of changed financial circumstances are necessary to warrant alimony modification (Cal., Conn., Tenn.), and in two states (Cal., Tenn.) proof of cohabitation creates a rebuttable presumption that financial circumstances have changed (See Note, Alimony, Cohabitation and the Wages of Sin: A Statutory Analysis, 33 Ala.L.Rev. 577 (1981); Note, Alimony Modification and Cohabitation in North Carolina, 63 N.C.L.Rev. 794 (1985) ).

The courts of these states passing anti-cohabitation statues have uniformly dismissed constitutional attacks launched against them (See, Ivey v. Ivey, 378 So.2d 1151 (Ala.Civ.App.1979) (equal protection attack dismissed); Sims v. Sims, 245 Ga. 680, 266 S.E.2d 493 (1980) (equal protection and due process challenges dismissed based on state's interest in the institution of marriage); Morris v. Morris, 244 Ga. 120, 259 S.E.2d 65 (1979); Roberts v. Roberts, 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 because court can rationally distinguish between persons merely living together in temporary laison and those living in a more permanent relationship as described in the statute); Waddey v. Waddey, 290 N.Y. 251, 49 N.E.2d 8 (1943) (statute found prospective only and due process challenge not entertained); Gallin v. Gallin, No. 33710/74 (N.Y.Sup.Ct., filed March 10, 1977) (unconstitutionality argument not reached); Wood v. Wood, 104 Misc.2d 109, 428 N.Y.S.2d 136 (Fam.Ct., Queens Co., 1980) (DRL § 248 equally available to a wife to bar support of a husband proven to be living with another woman and holding himself as married to her; statute may be construed as gender neutral to preserve its constitutionality); Note, Alimony Modification: Cohabitation of Ex-Wife with Another Man, 7 Hofstra L.Rev. 471 (1979) ).

The success of a constitutional challenge to New York's termination-of-alimony statute on equal protection grounds will depend of the level of scrutiny the reviewing court chooses to apply to the classification established by the statute. In recent years, the U.S. Supreme Court has employed a two-tier analysis of statutory classifications. The Equal Protection Clause of the Fourteenth Amendment commands that no State "shall deny to any person within its jurisdiction the equal protection of the laws," which is essentially a direction that all persons similarly situated should be treated alike (Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786 (1982) ). Section 5 of the Amendment empowers Congress to enforce this mandate, but absent controlling congressional direction, the courts have themselves devised standards for determining the validity of state legislation or other official action that is challenged as denying equal protection. The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest (City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Schweiker v. Wilson, 450 U.S. 221, 230, 101 S.Ct. 1074, 1080, 67 L.Ed.2d 186 (1981); Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 942, 59 L.Ed.2d 171 (1979); New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976) ). When social or economic legislation is at issue, the Equal Protection Clause allows the states wide latitude (United States Railroad Retirement Board v. Fitz, 449 U.S. 166, 174, 101 S.Ct. 453, 459, 66 L.Ed.2d 368 (1980) ), and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes (City of Cleburne, Tex. v. Cleburne Living Center, supra, 105 S.Ct., at 3254) ).

The general rule gives way, however, when a statute classifies by race, alienage or national origin. These factors are so seldom relevant to the...