Sitarek v. Sitarek, 1

• Decision Date: 31 January 1992
• Docket Number: No. 1,1
• Citation: 179 A.D.2d 1064,579 N.Y.S.2d 522
• Parties: Dianne SITAREK, Respondent, v. David J. SITAREK, Appellant. Appeal
• Court: New York Supreme Court — Appellate Division

Page 522

579 N.Y.S.2d 522

179 A.D.2d 1064

Dianne SITAREK, Respondent, v. David J. SITAREK, Appellant. Appeal No. 1.

Supreme Court, Appellate Division,

Fourth Department.

Jan. 31, 1992.

John A. Michalek, West Seneca, for appellant.

Robert R. Vario, West Seneca, for respondent.

Before DENMAN, P.J., and CALLAHAN, GREEN, LAWTON and DAVIS, JJ.

MEMORANDUM:

We reject defendant's contention that Supreme Court erred in denying his application to terminate his maintenance obligation on the ground that plaintiff was cohabitating with an unrelated male. An oral stipulation of settlement, incorporated but not merged in the parties' judgment of divorce, provided that, if plaintiff cohabitated with an unrelated male for a period of more than two months, defendant could apply for a modification or termination of his support obligation. Contrary to defendant's contention, the parties' stipulation did not provide for automatic termination of his support obligation if plaintiff was cohabitating with an unrelated male.

Supreme Court held a hearing on defendant's application and concluded that the proof of plaintiff's cohabitation was insufficient to justify terminating defendant's maintenance obligation. The record fully supports that conclusion. To establish cohabitation, defendant had the burden of showing that plaintiff was living with an unrelated male and that she was holding herself out as his wife (see, Domestic Relations Law § 248; Matter of Bliss v. Bliss, 66 N.Y.2d 382, 497 N.Y.S.2d 344, 488 N.E.2d 90; Northrup v. Northrup, 43 N.Y.2d 566, 571-572, 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). Although it was uncontroverted that plaintiff was living with an unrelated male, defendant failed to establish that she was holding herself out as that male's wife. Thus, defendant's application was properly denied (see, Matter of Bliss v. Bliss, supra; see also, Northrup v. Northrup, supra ). Moreover, the facts established at the hearing were insufficient to demonstrate that the maintenance obligation should be modified on the ground that its enforcement would result in extreme hardship (see, Domestic Relations Law § 236[B][9][b]; Praeger v. Praeger, 162 A.D.2d 671, 673, 557 N.Y.S.2d 394; Pintus v. Pintus, 104 A.D.2d 866, 867, 480 N.Y.S.2d 501).

We also reject defendant's contention that Supreme Court abused its discretion in directing him to pay plaintiff's attorney's fees in the amount of $2000. In light of the parties' financial circumstances, the fee award,...