                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 10, 2014                     517932
________________________________

KATHRYN L. VEGA,
                    Respondent,
     v                                      MEMORANDUM AND ORDER

JOHN PAPALEO,
                    Appellant.
________________________________


Calendar Date:   May 27, 2014

Before:   Lahtinen, J.P., McCarthy, Garry, Lynch and Clark, JJ.

                             __________


     David H. Swyer, Albany, for appellant.

     Rosemary Nichols, Watervliet, for respondent.

                             __________


Garry, J.

      Appeal from an order of the Supreme Court (Connolly, J.),
entered February 4, 2013 in Albany County, which, among other
things, denied defendant's motion to terminate certain
maintenance payments.

      Plaintiff (hereinafter the wife) and defendant (hereinafter
the husband) were divorced in Albany County in August 2012
pursuant to a judgment that incorporated a September 2008
memorandum of understanding (hereinafter MOU). The MOU included
a provision by which the husband would make maintenance payments,
scheduled to terminate after a set period or upon certain
occurrences, including the wife's remarriage or cohabitation with
another individual. In October 2012, the 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; Supreme Court denied both motions.
                              -2-                517932

The husband appeals, and we affirm.

      The MOU – which was incorporated, but not merged into the
divorce judgment – remains "a separate contract subject to the
rules of contract interpretation" (Momberger v Momberger, 97 AD3d
945, 946 [2012] [internal quotation marks and citation omitted];
see Matter of Drake v Drake, 114 AD3d 1119, 1120 [2014]). Our
analysis of disputed terms is based upon their plain meaning, as
well as "'consideration of whatever may be reasonably implied
from that literal language'" (Desautels v Desautels, 80 AD3d 926,
928 [2011], quoting Hewlett v Hewlett, 243 AD2d 964, 966 [1997],
lvs dismissed 91 NY2d 887 [1998], 95 NY2d 778 [2000]). The
subject agreement provides for maintenance payments 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." As Supreme Court noted, the agreement
fails to provide any definition of the term "cohabits." The
husband contends that this provision unambiguously states 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. Supreme Court
properly rejected this argument, finding that the term could not
be fairly read to encompass the husband's broad interpretation.

      Most notably, the parties entered into this agreement
following Graev v Graev (11 NY3d 262 [2008]), in which the Court
of Appeals 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
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" (id.
at 272). 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
                              -3-                  517932

relationship is wholly contrary to the governing precedent, and
is unavailing (see id. at 271-274). As Supreme Court found, the
husband has not alleged that the wife has lived with another
individual in any relationship remotely resembling or suggestive
of a marital bond, nor has he shown that anything in the MOU
reveals an intention to define cohabitation as a shared address
in the absence of such a bond.

     Lahtinen, J.P., McCarthy, Lynch and Clark, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
