        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
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                                                         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
