Sypek v. Sypek

• Court: New York Supreme Court
• Writing for the Court: ALBERT M. ROSENBLATT
• Citation: 130 Misc.2d 796,497 N.Y.S.2d 850
• Decision Date: 14 January 1986
• Parties: Tadeusz M. SYPEK, Plaintiff, v. Maria S. SYPEK, Defendant.

Page 850

497 N.Y.S.2d 850 130 Misc.2d 796 Tadeusz M. SYPEK, Plaintiff,
v.
Maria S. SYPEK, Defendant. Supreme Court, Dutchess County. Jan. 14, 1986.

Page 851

Silver, Forrester & Schisano, Newburgh, for plaintiff.

Osofsky & Replansky, Pine Plains, for defendant.

ALBERT M. ROSENBLATT, Justice.

Plaintiff-husband ^* seeks to terminate support payments pursuant to a written separation agreement which contains the following provision:

Support payments shall terminate upon the Wife's remarriage or if the Wife takes up residency with another man to whom she is not married. [Emphasis court's]

The defendant-wife acknowledges that she does indeed live primarily at the residence of another man, who is 97 years old, blind, and otherwise infirm. He requires defendant's paid services as a live-in aide, for which she receives $160 a month, plus room and board. It is also undisputed that the man cannot ambulate without a walker, and that he has a pacemaker, a hearing aid, a truss for his rupture, and a leg brace.

There is no claim or evidence that the relationship is personal, romantic, or anything other than professional. The wife has her own bedroom at the employment premises. Her job entails housekeeping, preparing her employer's food, and keeping his blood pressure and temperature records.

None of this is seriously in dispute. As Special Term found, in ordering a hearing, the nature of the relationship is undenied and therefore established.

The parties, at the hearing, agreed that the only issue before the court was whether the husband and wife, in negotiating the separation agreement, intended the above quoted provision to cover the relationship between the wife and her charge.

Page 852

Both sides have cited Domestic Relations Law § 248. That section provides that a court has discretion to annul the support provisions of a final matrimonial judgment upon proof that a spouse is habitually living with another partner and "holding out" the relationship as one of husband and wife. Because such provisions work a forfeiture of support, a party seeking to be absolved from making payments must bear the burden of proof [Collyer v. Proper, 109 A.D.2d 1010, 486 N.Y.S.2d 808, aff'd 66 N.Y.2d 382, 497 N.Y.S.2d 344, 488 N.E.2d 90, 1985; Smith v. Smith, 88 A.D.2d 658, 450 N.Y.S.2d 524; Zipparo v. Zipparo, 70 A.D.2d 616, 416 N.Y.S.2d 321]. Thus, under § 248 there is a double predicate before support may be terminated. The showing requires 1) an habitual living arrangement and, 2) a "holding out" as a spouse [Northrup v. Northrup, 43 N.Y.2d 566, 402 N.Y.S.2d 997, 373 N.E.2d 1221]. There has been some judicial concern over the arguably rigid second predicate, which might motivate a spouse to tailor conduct so as to scrupulously avoid the "holding out," while fully satisfying the first test [Northrup v. Northrup, 43 N.Y.2d 566, dissenting op. Wachtler, J. [now Chief Judge], p. 572, 402 N.Y.S.2d 997, 373 N.E.2d 1221]. This concern has, no doubt, accounted for the decision in Mtr. of Bliss v. Bliss, 107 A.D.2d 394, 487 N.Y.S.2d 26, in which the court was more inclined to look to conduct than to artificialities or labels in determining what constitutes a "holding out." The plaintiff-husband has cited the Appellate Division decision in Bliss, but it has since been reversed by the Court of Appeals, 66 N.Y.2d 382, 497 N.Y.S.2d 344, 488 N.E.2d 90, decided December 19, 1985. In any case, even the cogent viewpoint of the Appellate Division is of no avail to the husband at bar. It merely argues that § 248 was not intended to be used as a "sword of inequity, dependent only on the deftness with which a former spouse can parry assertions that her conduct in a protracted relationship is marital in substance."

The husband has contended that the parties, in drafting...