Graev v Graev

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[*1] Graev v Graev 2005 NY Slip Op 50169(U) Decided on February 14, 2005 Supreme Court, New York County Gische, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 14, 2005
Supreme Court, New York County

Linda R. Graev, Plaintiff

against

Lawrence G. Graev, Defendant



302084/95

Judith J. Gische, J.

This is plaintiff Linda R. Graev's motion to enforce the Judgment of Divorce dated June 5, 1997 which incorporates but does not merge therein the parties' separation agreement of April 18, 1997 ("the agreement"). Defendant Lawrence G. Graev cross moves to terminate his obligation to pay plaintiff spousal support, as provided under the agreement.

Though defendant has cross moved for "summary judgment" on his claims, more simply the issue is whether he has made a threshold showing of his claims that would entitle him to a hearing. If he has not, then plaintiff's motion should be granted, and a money judgment entered [*2]against him in her favor. The court's decision follows.

Discussion

The agreement provides for defendant to pay to plaintiff spousal maintenance of $120,000 per annum, in equal monthly installments of $10,000, unless there is a "Termination Event." One of the events is "[t]he cohabitation of the Wife with an unrelated adult for a period of sixty (60) substantially consecutive days."

Defendant contends that plaintiff began a relationship with Mr. M.P. ("MP") two years ago and that she regularly brings MP to family events and celebrations. Defendant hired a private investigator to follow plaintiff and MP. The surveillance began June 13, 2004 and continued through the end of August, 2004. Each day the surveillance lasted approximately 9 hours. In a sworn affidavit, one of the investigators details the activities of plaintiff and MP. There are no photos of them engaged in sexual intercourse.

Plaintiff contends that she is not having sexual relations with MP and that he is unable to perform sexually. She further contends that prescribed medication (e.g. Viagra) is ineffective for MP, and that they have decided to enjoy each other's company without being lovers. She contends that she is not "cohabiting" with MP because they have no sexual intercourse and she has not lived with him 60 consecutive days. She admits they have shared her home, but claims this was only to accommodate MP's move from one residence to another.

The language in the parties agreement relating to "cohabitation" draws from, but is far more expansive than, the language found in section 248 of the Domestic Relations Law. Section 248 provides that the court "may" terminate spousal maintenance payments where there is proof that an ex-wife is "habitually living with another man and holding herself out as his wife." Their agreement, however, does not require any kind of marital arrangement (e.g. "holding out" as married persons) or that the cohabitant be of the opposite sex. Further, it eliminates the discretion of the court in terminating maintenance. The agreement specifically allows for the termination of spousal support when plaintiff cohabits with "an unrelated adult for a period of sixty (60) substantially consecutive days."

Plaintiff's argument, that she is not now having (nor will she ever have) sexual intercourse with MP, is not conclusive about whether she has forfeited spousal support payments under the parties' agreement. Though sexual intimacy may be one of the elements that a court could consider in deciding whether defendant has established (by the preponderance of the evidence) that plaintiff has cohabited with an unrelated adult, the absence or presence of sexual intimacy - alone - is not dispositive of either the motion or cross motion the court has before it. See: Watson v. Watson, 39 AD2d 660 (1st Dept 1972); Brown v. Brown, 122 AD2d 762 (2nd Dept 1986).

Having failed to provide a definition of 'cohabitation' in their agreement, the court must consider the plain meaning of this term. It must also consider the various cases in this and other departments construing "cohabitation." A brief survey of these cases shows that none of them have narrowly construed 'cohabitation' in the manner plaintiff suggests. See, for example: Olstein v. Olstein, 309 AD2d 697 (1st Dept. 2003); Famoso v. Famoso, 267 AD2d 274 (2nd Dept 1999); Markhopf v. Markhopf, 225 AD2d 1000 (3rd Dept 1996); Scharnweber v. Scharnweber, 105 AD2d 1080 (4th Dept 1984). Nor have any of these cases held that the alleged [*3]cohabitants must literally spend each day of the relevant period in each other's physical presence. Thus, cohabitation consists of several elements that defendant must establish by a preponderance of the evidence at a hearing. Brown v. Brown, supra. Consequently, defendant's cross motion, for an order terminating his obligation to pay spousal support under the agreement is granted only to the extent that a hearing shall be held.

Plaintiff's motion, for the court to enter a money judgment against defendant for the months of spousal support that he did not pay (e.g. September and October 2004) is granted only to the extent that this shall also be the subject of that hearing. If defendant proves his claims, then plaintiff would not be entitled to those support payments. If, however, defendant fails to establish his claims, then plaintiff would be entitled to a money judgment for the those months of missed payments, plus any other arrears that have accrued.

The court cannot decide, in advance of the hearing, whether either party is entitled to recover their legal fees and other costs, as each of them claims. Therefore, those branches of the motion and cross mthey are referred to the hearing as well.

Finally, each party has asked permission to conduct pre-hearing discovery related to the claims framed by their motions and this decision/order. Both motions are granted and each side must serve their demands for discovery on or before January 18, 2005.

Since this court will no longer be assigned to a matrimonial part, and this case will be before a new judge, the parties and counsel shall appear for a conference on February 22, 2005 at 9:30 a.m. before Hon. Saralee Evans, 71 Thomas, Room 103 so that Judge Evans can address when the claims framed herein will be heard.

Conclusion

Defendant's cross motion is granted to the extent that the issue of whether plaintiff has forfeited her right to receive spousal and plaintiff's motion for enforcement of defendant's support payments are both granted to the extent that these issues will be the subject of a hearing. Both motions for legal fees and costs are granted to the extent that those branches will be the subject of the hearing as well. Discovery demands are to be served in accordance with the foregoing deadline and a status conference is scheduled before Judge Evans on February 22, 2005.

Any relief not expressly addressed in this decision/order has nonetheless been considered and is hereby expressly denied.

This shall constitute the decision and order of the court.

Dated: New York, New York

February 14, 2005

SO ORDERED:

__________________

J.S.C.

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