        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

893
CA 11-00714
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND MARTOCHE, JJ.


COLLEEN MASTROCOVO, FORMERLY KNOWN AS COLLEEN
CAPIZZI, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

JOEL CAPIZZI, DEFENDANT-APPELLANT.


CLAIR A. MONTROY, III, ORCHARD PARK, FOR DEFENDANT-APPELLANT.


     Appeal from a judgment and order (one paper) of the Supreme
Court, Erie County (Tracey A. Bannister, J.), entered June 21, 2010 in
a postjudgment divorce action. The judgment and order denied the
application of defendant to be relieved of his maintenance obligation
and awarded plaintiff a money judgment for maintenance arrears.

     It is hereby ORDERED that the judgment and order so appealed from
is unanimously modified on the law by granting the relief sought in
the order to show cause with respect to maintenance and judgment is
entered in favor of plaintiff for maintenance arrears in the amount of
$1,413.38, and as modified the judgment and order is affirmed without
costs.

     Memorandum: By order to show cause, defendant sought, inter
alia, to modify a judgment of divorce by terminating his maintenance
obligation based on plaintiff’s cohabitation with another man.
Supreme Court denied the relief sought in the order to show cause with
respect to maintenance and awarded judgment to plaintiff for
maintenance arrears in the amount of $9,015.38. It appears from the
record that the order to show cause sought other relief as well. As
per the CPLR 5531 statement, however, only the issue of maintenance is
before us on this appeal. The parties’ property settlement agreement
(agreement), which was incorporated but not merged into the judgment
of divorce, required defendant to pay maintenance of $1,000 per month
for 4½ years or until “the death of either party, remarriage of the
wife or the continued cohabitation of the wife as defined in Domestic
Relations Law § 248” (emphasis added). There is no dispute that
plaintiff lived with her boyfriend in a rental home since August 2008,
approximately one year before defendant filed the order to show cause.
Plaintiff otherwise had no separate residence from that of her
boyfriend, and they shared a bedroom.

     Following an evidentiary hearing, the court denied defendant’s
order to show cause with respect to maintenance. The court determined
that defendant, to establish grounds for termination of maintenance,
                                 -2-                           893
                                                         CA 11-00714

was required under the agreement to prove that plaintiff cohabitated
with another man and held herself out as the other man’s wife. We
conclude that the court erred in denying the order to show cause with
respect to maintenance because defendant was required to prove only
that plaintiff cohabitated with another man.

     “It is well settled that the parties to a matrimonial 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 Law § 248 requires” (Pesa v
Pesa, 230 AD2d 837). Here, as noted, the parties’ agreement provides
for termination of maintenance upon plaintiff’s “continued
cohabitation” with another man, and there is no requirement therein
that plaintiff hold herself out as the other man’s wife. Although
plaintiff is correct that the agreement refers to Domestic Relations
Law § 248, which in turn refers to “proof that the wife is habitually
living with another man and holding herself out as his wife, although
not married to such man,” we conclude that the reference in the
agreement to section 248 is solely for the purpose of defining
cohabitation. Indeed, it is clear that there are two prongs under the
statute, and that habitually living with another man is a prong that
is separate and distinct from the second prong of holding oneself out
as the other man’s wife (see Matter of Bliss v Bliss, 66 NY2d 382,
387; Northrup v Northrup, 43 NY2d 566, 570-571; Armas v Armas, 172
AD2d 1084). “The absence of proof in a particular case does not
justify an inference that cohabitation alone manifests a holding out”
(Northrup, 43 NY2d at 571).

     “Under the standard canon of contract construction expressio
unius est exclusio alterius, that is, that the expression of one thing
implies the exclusion of the other” (Matter of New York City Asbestos
Litig., 41 AD3d 299, 302), the fact that the agreement refers only to
the cohabitation prong of section 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. The evidence at the
hearing established that plaintiff was in fact cohabiting with another
man. Indeed, plaintiff does not dispute that fact. It follows that
defendant was entitled to termination of his maintenance obligation,
and that the termination is effective as of the date of filing of his
order to show cause, i.e., August 28, 2009 (see generally Matter of
Dox v Tynon, 90 NY2d 166, 173; Domestic Relations Law § 236 [B] [9]
[b]). As of that date, defendant owed $1,413.38 in maintenance from
July 15, 2009, when the marital residence was sold and the maintenance
obligation was triggered under the agreement. We therefore modify the
judgment and order by granting the relief sought in defendant’s order
to show cause with respect to maintenance and reducing the amount
awarded to plaintiff to $1,413.38.



Entered:   September 30, 2011                   Patricia L. Morgan
                                                Clerk of the Court
