The parties were divorced in August, 2012 pursuant to a judgment that incorporated a September, 2008 Memorandum of Understanding. The Memorandum provided for maintenance payments to the wife in a specified sum until, as pertinent here, “[the wife] cohabits with an individual for any period in excess of 75 days within any 6-month period of time.”
In October 2012, the ex-husband moved to cease making these payments based upon the wife’s alleged cohabitation with her mother and stepfather. The wife opposed the motion and cross-moved for sanctions. Albany County Supreme Court Justice Gerald William Connolly denied both motions. The husband appealed, and the Third Department in its July 10, 2014 opinion in Vega v. Papaleo affirmed.
As Justice Connolly noted below, the agreement failed to provide any definition of the term “cohabits.” The ex-husband contended that the provision unambiguously stated the parties’ intention, and that “cohabits” should be read in this context to mean merely that the wife reside with any other person for the requisite time period, with no showing of any sexual, romantic or economic relationship required. However, the Third Department held Justice Connolly properly rejected this argument, finding that the term could not be fairly read to encompass the husband’s broad interpretation.
The Memorandum was an agreement that remained “a separate contract subject to the rules of contract interpretation.” The Third Department’s analysis of disputed terms was based upon the plain meaning of those terms, as well as “’consideration of whatever may be reasonably implied from that literal language,’”
Most notably, the parties entered into this agreement following the decision of the Court of Appeals in Graev v Graev (11 N.Y.3d 262, 869 N.Y.S.2d 866 ), in which the Court carefully reviewed several potential definitions of the term “cohabitation.” The Court held that neither case law nor dictionary usage provided an authoritative or plain meaning. However, while no single factor – such as residing at the same address, functioning as a single economic unit, or involvement in a romantic or sexual relationship – is determinative, the Court of Appeals found that a “common element” in the various dictionary definitions is that they refer to people living together “in a relationship or manner resembling or suggestive of marriage.”
[In the absence of an agreement on this issue Domestic Relations Law §248 would require proof that the ex-wife habitually lived with another man and held herself out as his wife before terminating court-ordered maintenance.]
There is simply no authoritative definition or customary usage of the term that could include residing with a parent. The husband’s assertion that the phrase “with an individual” informs the term “cohabits” in such a manner as to omit a requirement of any showing of an intimate or romantic relationship is wholly contrary to the governing precedent, and is unavailing.
As Justice Connolly correctly found, the husband did not allege that the wife has lived with another individual in any relationship remotely resembling or suggestive of a marital bond, nor did he show that anything in the Memorandum revealed an intention to define cohabitation as a shared address in the absence of such a bond.
David H. Sawyer, Esq., of Albany, represented the ex-husband. Rosemary Nichols, Esq., of Watervliet, represented the ex-wife.