PEREZ, KAYLYN v. PEREZ-BRACHE, JOSE ( 2017 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    284
    CA 16-01306
    PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN,
    KAYLYN PEREZ, PLAINTIFF-RESPONDENT,
    V                             MEMORANDUM AND ORDER
    JOSE PEREZ-BRACHE, DEFENDANT-APPELLANT.
    SPADAFORA & VERRASTRO, LLP, BUFFALO (KELLY A. FERON OF COUNSEL), FOR
    DEFENDANT-APPELLANT.
    MATTINGLY CAVAGNARO LLP, BUFFALO (CHRISTOPHER S. MATTINGLY OF
    COUNSEL), FOR PLAINTIFF-RESPONDENT.
    Appeal from an order of the Supreme Court, Erie County (John F.
    O’Donnell, J.), entered January 7, 2016. The order denied the
    application of defendant to modify the parties’ judgment of divorce by
    terminating his maintenance obligation.
    It is hereby ORDERED that the order so appealed from is
    unanimously affirmed without costs.
    Memorandum: Defendant appeals from an order denying his
    application to modify the parties’ judgment of divorce by terminating
    his maintenance obligation based on plaintiff’s cohabitation with
    another man. Pursuant to the parties’ support and property settlement
    agreement (agreement), which was incorporated but not merged into the
    judgment of divorce, defendant’s “maintenance obligation shall be
    sooner terminated upon [defendant]’s death, or [plaintiff]’s death.
    ADDITIONALLY, after the fourth (4th) year of such payments,
    [defendant]’s maintenance obligation shall also terminate upon either
    [plaintiff]’s remarriage, or [plaintiff]’s cohabitation with an
    unrelated adult male pursuant to New York State Domestic Relations Law
    [§] 248.” Following an evidentiary hearing, Supreme Court determined
    that defendant was required under the agreement to prove that
    plaintiff was habitually living with an unrelated adult male and that
    she held herself out as his wife, and that he failed to do so. The
    court also concluded in the alternative that, even if defendant was
    not required to prove that plaintiff was holding herself out as the
    other man’s wife, defendant nonetheless failed to establish that
    plaintiff was habitually living with another man.
    At the outset, we agree with defendant that the court erred in
    determining that, pursuant to the terms of the agreement, defendant
    was required to establish that plaintiff held herself out as another
    man’s wife. “ ‘It is well settled that the parties to a matrimonial
    -2-                           284
    CA 16-01306
    agreement may condition a husband’s obligation to support his wife
    solely on her refraining from living with another man without the
    necessity of the husband also proving that she habitually holds
    herself out as the other man’s wife as Domestic Relations § 248
    requires’ ” (Mastrocovo v Capizzi, 87 AD3d 1296, 1297). Here, “the
    fact that the agreement refers only to the cohabitation prong of
    Domestic Relations Law § 248 compels us to conclude that the parties
    did not intend to include the second prong of plaintiff holding
    herself out as another man’s wife” (id. at 1298).
    Nevertheless, we conclude that the court properly determined that
    defendant failed to establish by a preponderance of the evidence that
    plaintiff was habitually living with her fiancé (see Scharnweber v
    Scharnweber, 105 AD2d 1080, 1080, affd 65 NY2d 1016; Matter of
    Ciardullo v Ciardullo, 27 AD3d 735, 736). The reference to Domestic
    Relations Law § 248 in the parties’ agreement was “solely for the
    purpose of defining cohabitation” (Mastrocovo, 87 AD3d at 1297), i.e.,
    “habitually living with another person” (§ 248). Here, the testimony
    adduced at the trial established that, although plaintiff’s fiancé
    occasionally stayed overnight at plaintiff’s residence, he maintained
    his own separate residence in Canada, where he received his mail and
    kept his personal belongings. He did not own any real property with
    plaintiff and did not financially contribute to the payment of any of
    plaintiff’s expenses.
    Contrary to defendant’s further contention, the court did not
    abuse its discretion in concluding that the disputed records requested
    in the subpoena duces tecum served on plaintiff’s fiancé were
    irrelevant and thus that he was not entitled to them (see generally
    Matter of Constantine v Leto, 157 AD2d 376, 378, affd 77 NY2d 975;
    Kephart v Burke, 306 AD2d 924, 925; Kozuch v Certified Ambulance
    Group, Inc., 301 AD2d 840, 840-841).
    Entered:   March 24, 2017                       Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: CA 16-01306

Filed Date: 3/24/2017

Precedential Status: Precedential

Modified Date: 4/17/2021