Sanseri v. Sanseri

• Decision Date: 06 April 2015
• Citation: 16 N.Y.S.3d 645
• Parties: Frank R. SANSERI, Plaintiff, v. Laureen M. SANSERI, Defendant.
• Court: New York Supreme Court

16 N.Y.S.3d 645

Frank R. SANSERI, Plaintiff

v.Laureen M. SANSERI, Defendant.

Supreme Court, Monroe County, New York.

April 6, 2015.

Frank R. Sanseri, Rochester, Pro Se Litigant.

Alexander Korotkin, Esq., Rochester, Attorney for Defendant.

RICHARD A. DOLLINGER, J.

1. Introduction—Facts

In this matter, the court re-visits a familiar question: in the absence of re-remarriage, when can a trial court terminate maintenance? Thirty-six years ago, the Court of Appeals, working within the confines of Section 248 of the Domestic Relations Law, decided this question in Northrup v. Northrup, 43 N.Y.2d 566, 402 N.Y.S.2d 997, 373 N.E.2d 1221 (1978), and held that unless the person is “(1) habitually living with a man and (2) holding herself out as his wife,” no modification is permitted. But now, decades later, the concept of maintenance has been restructured by the Legislature to provide financial assistance based on a model of “economic independence.” As a result, the burden of proof needs careful re-examination to assure that fairness to both the payor and post-separation economic independence of the recipient is achieved.

The salient facts, adduced during a hearing, are undisputed. The husband and wife are not yet divorced, as there are still issues remaining. The court ordered maintenance at the commencement of the action, based on the disparity of incomes between the couple. The husband now moves to terminate the maintenance.

After the husband and wife separated, the wife admits that she lived with another man, shared a bedroom, commingled her finances with her partner as they shared a joint checking account, and accepted an engagement ring from the partner. She acknowledges that she shared “family activities” with the partner, and allowed this person to be listed as an emergency contact for her child. They shared birthdays and holidays, and traveled together. In an email, admitted at trial, the wife acknowledged to her husband that she “expected [the] payments [of maintenance] to end when she moved in with her significant other.” However, the wife, under direct examination from her counsel, stated that she never “held herself out” as the spouse of her boyfriend, and never told anyone that she was married to him, and continues to insist on her ex-husband's compliance with the maintenance order. Based on these facts, the husband seeks a declaration that he can discontinue his maintenance payments to the wife.¹

2. Introduction—Law

In order to terminate or modify maintenance, the Domestic Relations Law contains two mechanisms. The first is DRL § 236(B)(9)(b)(1), which contains two provisions for modification: if the maintenance is set forth in a prior order, then any modification requires proof of a substantial change in circumstances or, if the maintenance is set forth in a separation agreement, then “extreme hardship” must be proven. Id. Under current case law, the “substantial change” required to modify a prior order of maintenance is measured by a comparison between the payor's financial circumstances at the time of the motion and at the time the original order was entered. Rabinovich v. Shevchenko, 120 A.D.3d 786, 991 N.Y.S.2d 345 (2nd Dept.2014) ; Ashmore v. Ashmore, 114 A.D.3d 712, 981 N.Y.S.2d 427 (2nd Dept.2014). See also Leo v. Leo, 125 A.D.3d 1319, 3 N.Y.S.3d 232 (4th Dept.2015) (with respect to the burden of proof to be applied when a party seeks to reduce the amount of maintenance set forth in a separation agreement that has been incorporated, but not merged into a judgment of divorce, that party has the burden of establishing “extreme hardship”). In this case, there is simply insufficient evidence to justify a conclusion that the there has been a substantial change in the payor's financial circumstances since the date of the original order of maintenance. The husband testified that he expended substantial sums in litigating this divorce, which caused him some economic hardship, and that the support obligations were draining his discretionary income, but this does not constitute a substantial change. Unless this court, in considering the scope of the “substantial change” can consider factors other than the husband's ability to pay, DRL § 236(B)(9)(b)(1) does not provide relief here. What is significant in reviewing this portion of the Domestic Relations Law is that the Legislature, and the courts have viewed both the mandate to pay maintenance, and the criteria to change it, as grounded by the Legislature in the payor's and recipient's economic circumstances. The “substantial change” or “extreme hardship” standards are both based on the relative economic circumstances of the payor or the recipient. As best as this court can determine, the question of whether the financial circumstances of the recipient alone—their economic interdependence on a third-party with whom they resides—can provide a ground for modifying maintenance under DRL § 236(B)(9)(b)(1) is untested.

3. The enactment of DRL § 248 —Legislative History

The second statutory mechanism was the focus of the hearing in the case: whether the wife is “holding herself out” as the spouse of another sufficient to justify termination or modification of maintenance. DRL § 248. The statute provides:

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 annulling the provisions of such final judgment or orders or of both, directing payment of money for the support of such wife.

DRL § 248. The enactment of § 248 by the Legislature in 1938² occurred after a perfect storm of events regarding an ex-spouse living with someone else and alimony. In 1904, the Legislature determined that public policy dictated that a woman who had received a final decree of divorce in her favor, from her husband, should no longer be permitted to hold her husband liable for alimony after she remarried. L. 1904, ch. 339, cited in Waddey v. Waddey, 290 N.Y. 251, 255–256, 49 N.E.2d 8 (1943). A decade later, the Court of Appeals in Hayes v. Hayes, 220 N.Y. 596, 115 N.E. 1040 (1917), held that immoral conduct by a wife—as distinguished from remarriage—was insufficient to justify terminating alimony.³

While the courts were grappling with the impact of post-divorce “immoral conduct” on the obligation to pay alimony, the Legislature took another step involving “immoral conduct and marriage” and abolished the common law marriage doctrine in 1933. Under that doctrine, if the evidence established that legally competent parties in praesenti intended to become husband and wife and thereafter lived and cohabited as husband and wife, such a marriage existed. Matter of Haffner, 254 N.Y. 238, 242, 172 N.E. 483 (1930). In attempting to decide whether to create marital obligations for couples living without the benefit of a formalized marriage ceremony, the courts had, prior to 1933, focused on circumstantial evidence of such an intention. The courts had long held that cohabitation and reputation as husband and wife, acknowledgment, declarations, conduct, repute, reception among neighbors, and relations and the like, are all probative of marital status. Gall v. Gall, 114 N.Y. 109, 118, 21 N.E. 106 (1889) ; Clayton v. Wardell, 4 N.Y. 230 (1850) (couple were married, under common law, if they “held themselves out to the world as such”). The courts used the phrase “holding out” as evidence that the couple were projecting to others the impression that they were living as husband and wife. “Holding out” was one of the “bits of evidence” more or less cogent in showing that such agreement to be married was made. One court added “sometimes they are the only available evidence of such agreement.” In re Glenn, 195 Misc. 468, 85 N.Y.S.2d 104 (Sur.Ct. Queens Cty.1949). In essence, New York courts before 1937 would consider a common law marriage, without the need for a formal ceremony, if the couple cohabitated, and were reputed to be husband and wife. Estate of Heitman, 154 Misc. 838, 279 N.Y.S. 108 (Su.Cr. Niagara Cty.1935), aff'd 247 App.Div. 855, 288 N.Y.S. 876 (4th Dept.1936), aff'd 272 N.Y. 533, 4 N.E.2d 435 (1936) (to establish a common-law marriage by cohabitation and reputation it must appear that the cohabitation was apparently matrimonial, continuous and regular, and that the reputation was general and not divided and the conduct of the parties must be such that almost anyone acquainted with them would naturally infer that they bore the relation to each other of husband and wife).⁴ Importantly, under this standard of proof, a declaration by either party that the other was their husband or wife, while probative of a common law marriage, was not necessary for such a finding. Conduct, repute, reception among neighbors, and relations and the like were equally compelling. Gall v. Gall, 114 N.Y. at 118, 21 N.E. 106.

Constructed in the backdrop of these legislative enactments and judicial decisions involving relationships between couples, it seems indisputable that the Legislature's use of the phrase “holding out” in Section 248 in 1938 was derived from the longstanding use of that term as a component of the proof necessary for establishing a common law marriage. In Section 248, the Legislature, in using the phrase “holding out,” borrowed the same circumstantial evidence test from its well-established common law marriage precedents: “holding out” was proven if the couple lived in a marriage-like living arrangement to a degree that a bystander, observing the couple, would conclude that they were acting in roles comparable to a husband and a wife. Section 248 did not require a court to find all the proof of a “common law marriage”—reputation as husband and wife, acknowledgment, declarations, conduct, repute, reception among neighbors and relations—before alimony could be modified. The “holding out”...