Stern v. Stern

• Decision Date: 01 December 1976
• Parties: Charlotte STERN, Plaintiff, v. Martin STERN, Defendant.
• Court: New York Supreme Court

Page 265

389 N.Y.S.2d 265

88 Misc.2d 860

Charlotte STERN, Plaintiff, v. Martin STERN, Defendant.

Supreme Court, Special Term, Nassau County, Part V.

Dec. 1, 1976.

Paradise & Paradise, New York City, for plaintiff.

Michael F. Erdheim, New York City, for defendant.

ALEXANDER BERMAN, Justice.

Defendant, former husband of plaintiff, has moved for modification of the judgment of divorce pursuant to Section 248, Domestic Relations Law, seeking to eliminate alimony by reason of his former wife's living with another man; or, in the alternative, for a downward modification of alimony because of plaintiff's improved financial circumstances. A hearing of the disputed issues was ordered and held.

The parties, having been married in 1950, lived together for a period of about 20 years, and had three children, two of whom are now emancipated. The youngest, 11 years of age, resides with plaintiff. The decree, dated June 12, 1971, awarded alimony to plaintiff in the sum of $10,000 per annum and child support in the sum of $6,000, plus other benefits. Defendant has fully and faithfully complied with the provisions of this decree. No issue was raised as to his ability to continue to so comply. Nor was there any application to modify the child support provisions.

This decision will deal first with the issue raised by defendant that he is no longer liable for alimony by virtue of the relationship of plaintiff with another man, contending that she is habitually living with him in a relationship tantamount to that of a wife. The taxt of the pertinent portion of § 248, on which defendant relies, 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 annulling the provisions of such final judgment or orders or of both, directing payment of money for the support of such wife . . .'

Plaintiff concedes that she resides in the same apartment with another man, one Abe Rowen, occupying with him the same bedroom, and that such relationship has been continuous, habitual and of at least one year's duration. Plaintiff, however, relies upon the conjunctive provision of the statute which, she contends, requires proof that she is also holding herself out as his wife, a status she denies exists.

The evidence disclosed that at least since September 1, 1975, the aforesaid Abe Rowen, a widower, and plaintiff, have continuously resided in a two-bedroom apartment located at 30 Grace Avenue, Great Neck, New York. One of the bedrooms is occupied by plaintiff and Rowen and the other is occupied by the infant daughter of the parties. There is also some evidence that Rowen and plaintiff had an intimate relationship before that date.

It is clear that plaintiff and Rowen, except for two occasions, which are later referred to herein, have been meticulous in avoiding a public holding out of themselves as husband and wife. In this respect, the proof establishes, for example, that the lease of their apartment names the tenants as Abraham Rowen and Charlotte Stern, although, according to her testimony, it had been first prepared by the landlord naming the tenants as Mr. and Mrs. Rowen. There are two separate telephones, one in his name and one of hers; tickets for trips which they made together were issued and billed separately in their individual names; and each maintained a separate checking account in his or her own name. They testified that they shared all household expenses and each separately paid his or her own bills for their respective purchases. They emphatically denied ever holding themselves out as Mr. and Mrs. Rowen. However, on two separate occasions the evidence disclosed that they stayed at hotels in which they were registered as Mr. and Mrs. Rowen. Plaintiff and Rowen contend, as to these registrations, that neither one informed the hotel clerk that they wished to be so registered, and that they did not personally indicate such relationship on the registration card.

Other than the two registrations, there has been no evidence of an actual holding out as husband and wife. The two hotel registrations referred to are isolated incidents and the Court is not satisfied from the testimony that Rowen, or the plaintiff, actually directed their registrations as 'Mr. and Mrs.' The Court is cognizant of the fact that resort hotel clerks generally do not inquire as to the relationship between a couple when the man registers and apparently take for granted that the parties are husband and wife. There is no proof that either Rowen or plaintiff wrote the words 'Mr. and Mrs.' on the registration cards.

There is no doubt that the relationship between them has many of the trappings of a marriage. They lived together in an intimate relationship such as man and wife; they visited their respective families together; they made regular visits to plaintiff's daughter at summer camp such as parents might do; and together they visited and enjoyed the company of mutual friends; they went on many trips and vacations; and out to dinner and theater and other places--but always caref not to hold themselves out or refer to themselves as Mr. and Mrs. Rowen.

There is no credible evidence that Rowen provided financial support for plaintiff, except that he had, he conceded, paid for dinner and entertainment on the many occasions when they dined out or attended a theatrical performance, movie, or other entertainment.

The phrase 'holding herself out as his wife' contained in the statute has a clear, unambiguous and significant meaning. As a matter of fact, the holding out by a man and woman of one another as husband and wife, while it did not, of itself, establish the existence of a common law marriage, was, in fact, an essential element thereof.

'Cohabitation and reputation, or the holding out of one another to the world as husband and wife, do not establish a common-law marriage, although they constitute evidence of such a marriage.' Law and the Family, Foster-Freed, Vol. I, § 2:36, 1972. See also, Matter of Heitman, 154...