Recitation as required by CPLR 2219(a) of the papers considered in the review of Motion Sequence 008 & 009Papers NumberedOrder to Show Cause by Plaintiff (008) 1Notice of Cross Motion by Defendant (009) 2Responsive Papers to 008 and 009 3Memoranda of Law 4Hearing Transcripts and Evidence 5Motion Sequence Number 010 and Responsive Papers 6 Upon the foregoing cited papers, the Decision and Order is as follows:Procedural BackgroundThe above captioned parties were married on May 23, 1979. They have three adult children, one of whom continues to reside with Defendant, Former Wife. Plaintiff, Former Husband, commenced a divorce proceeding against Defendant in 2015 and was subsequently granted a Judgment of Divorce on the ground of constructive abandonment. See DRL §170 (2).The ancillary economic issues were tried before this Court (Silber, J. then presiding). The trial court’s findings were set forth in a “Decision After Trial” dated April 20, 2009 and in an “Amended Decision After Trial” dated August 12, 2009. A Judgment of Divorce was entered on November 18, 2009 (Minardo, J), in accordance with the Amended Decision. The Judgment of Divorce directed Plaintiff to pay spousal maintenance in the amount of $1,500 per month to the Defendant until May 1, 2014. On that date, the support obligation would reduce to $1,000 per month until May 1, 2019. At that time, the obligation would reduce again to the sum of $500 per month until the Defendant reached the age of 65. However, the Court’s Decision also included a mechanism by which support could be terminated early if the Defendant cohabitated with another adult with whom she is romantically involved, for a period of 60 days. (See below).By Order To Show Cause filed November 8, 2017, Plaintiff moves for an Order terminating his maintenance obligation under the “cohabitation” provision of the Court’s Decision and the Judgment of Divorce. The exact wording of the Judgment provides for the following:“(c) beginning May 1, 2019 the payments will be reduced to $500.00 per month. Payments will cease entirely upon Defendant’s 65th birthday, upon her marriage or cohabitation with another adult with whom she is romantically involved for a period of 60 days, or upon the death of the Plaintiff or Defendant” (Judgment of Divorce, p.4).Plaintiff alleges that the Defendant has cohabitated with her boyfriend, Mr. L. J. T., at the former marital residence for a period longer than sixty days, occurring between June 1, 2017 and October 24, 2017. Accordingly, he now requests that his obligation to continue paying maintenance be terminated. Plaintiff also seeks to recoup all maintenance payments made retroactive to the date of the filing of the instant application.Defendant admits that she is “romantically involved” with Mr. T. but denies that she is cohabitating with him as set forth in the Court’s Trial Decision and the resulting Judgment of Divorce. Accordingly, Defendant has crossed moved to deny the Plaintiff’s application and for an award of counsel fees and disbursements. Defendant also cross moved for a finding that the Plaintiff was in violation of his obligation to maintain life insurance, however that issued was deemed to be moot upon a showing of compliance.As the Defendant’s opposition to the Plaintiff’s motion raised considerable issues of fact, this Court held an evidentiary hearing on April 18, 2018, August 14, 2018 and August 15, 2018. Plaintiff called himself as a witness and entered numerous date stamped photographs into evidence, along with other documents. These photographs depicted cars owned by Mr. T. (a 2017 Jeep and a Chevrolet Corvette) parked at various times of day and overnight at or around the Defendant’s home located on G***** Street in Staten Island, New York. Defendant called herself as a witness and entered various documents into evidence. No further witnesses were called by either party. Written summations were received from all counsel.Decisiona. Cohabitation.Cohabitation is defined by Domestic Relations Law Section 248, which identifies it as a condition in which a recipient of maintenance is “habitually living with another person and holding himself or herself out as the spouse of such other person although not married to such other person”. However, stipulating parties, or the Court, may modify or clarify the parameters under which maintenance can be terminated in an agreement or trial decision. See Graev v. Graev, 11 NY3d 262 (2008); See also, Vega v. Papaleo,119 AD3d 1139 (3rd Dept. 2014); Fosina v. Fosina, 128 AD3d 891 (2d Dept. 2015). In this case, the trial court’s Decision did not redefine the legal term “cohabitation,” as set forth in DRL §248. Accordingly, “cohabitation” must be construed as per DRL §248, and the caselaw interpreting that statute. However, the trial court did modify the Plaintiff’s burden by adding the term “romantically involved” and by mandating that the cohabitation necessarily continue for a period of 60 days. Notably, the Judgment of Divorce, which incorporated the language in the Trial Court’s Decision, was never appealed.At the hearing, Plaintiff testified that the Defendant is involved in an ongoing romantic relationship with Louis T. and he further attempted to establish that the Defendant and Mr. T. live together in the former marital residence. To support this claim, Plaintiff indicated that he drove to Defendant’s home on several days and evenings to observe his former Wife. Using his cell phone, he photographed Mr. T.’s cars parked in the driveway, or in the vicinity of the Defendant’s home, on various dates between June of 2017 and October of 2017. Notably, none of the photographs depict Mr. T. entering or leaving Defendant’s home. In fact, the photographs do not include any people at all. Rather, all of the photographs simply contain images of vehicles parked in the driveway of, or in the street near, the Defendant’s house.When the Defendant testified, she admitted that she has been romantically involved with Mr. T. since her divorce from the Plaintiff several years ago. However, she denied that she cohabitates with him (in a legal sense) or that he “habitually resides” with her (in a factual sense). She did admit that Mr. T. stays over her house on a somewhat regular basis, normally “three to four nights a week”. However, she also credibly testified that Mr. T. maintains his own home in Toms River, New Jersey. Defendant indicated that the longest continuous period of time where she and Mr. T. resided together was “a week or so” when Mr. T. was recuperating from surgery.It is well established that the legal definition of “cohabitation” involves more than simply dating, and more than just living together. In addition, the Plaintiff was required to establish that the Defendant and Mr. T. have in some way held themselves out to be the “spouse” of the other to establish cohabitation as a matter of law. See Bliss v. Bliss, 66 NY2d 382 (1985); See also, Northrup v. Northrup, 43 NY2d 566 (1978); Armas v. Armas, 172 AD2d 1084 (4th Dept. 1991). Defendant credibly denied this characterization. There is no indication in the record they ever referred to each other as being the other’s spouse, or held themselves out to be married by their acts or deeds. See Campello v. Alexandre, 155 AD3d 1381 (3rd Dept. 2017). For example, the Plaintiff failed to establish any of the normal indicia of a couple that resides together as a married couple would. Plaintiff failed to establish that Mr. T. receives his mail at the Defendant’s home, that he maintains his wardrobe there, or that he is involved with the upkeep or maintenance of the property.Furthermore, Plaintiff failed to show that the Defendant and Mr. T. entered into an “economic partnership” as a married couple typically would. See Clark v. Clark, 33 AD3d 836 (2d Dept. 2006). Defendant credibly testified that Mr. T. does not contribute to her support, her utilities, or to her other household expenses. They do not share joint bank accounts, and they do not co-own property. Indeed, even the cars relied on so heavily by Plaintiff in his motion, are registered solely in Mr. T.’s name at his address in New Jersey. Similarly, no proof was introduced suggesting that the Defendant contributes to Mr. T.’s expenses in any way. The record simply fails to support a finding that the Defendant and Mr. T. ever became economically intertwined. See Scharnweber v. Scharnweber, 105 AD2d 1080 (4th Dept. 1984).In response to the Defendant’s credible testimony, Plaintiff attempted to establish commingled finances between Defendant and Mr. T. using financial records. For example, Plaintiff established that Defendant bought a pair of shoes for Mr. T., that were notably delivered to his New Jersey home. However, Defendant credibly explained these shoes were nothing more than a holiday gift. Plaintiff also established that Mr. T. made a monetary payment to Defendant. However, Defendant credibly explained that Mr. T. was simply contributing to the cost of a vacation that they had taken together. At best, the Plaintiff was able to establish that Mr. T.’s contributions to the Defendant’s household, and vice versa, were “sporadic and minor.” See Emrich v. Emrich, 173 AD2d 818 (2d Dept. 1991).A review of the hearing record establishes that the Plaintiff has no personal knowledge of any facts which would refute Defendant’s credible depiction of her relationship with Mr. T.. The Plaintiff only succeeded in establishing that the Defendant and Mr. T. were dating, a fact that was never disputed. Moreover, the Plaintiff failed to call any other witness who might refute the Defendant’s testimony, such as the parties’ adult son who resides with the Defendant, or Mr. T. himself. Based upon this absence of proof, and after crediting the Defendant’s testimony, this Court finds Plaintiff failed to meet his burden of proving cohabitation as set forth in the Judgment of Divorce and as defined by Domestic Relations Law Section 248. See Szemansco v. Szemansco, 11 AD3d 787 (3rd Dept. 2004); See also, Zolan v. Zolan, 2 AD3d 632 (2d Dept. 2003).b. 60 Day PeriodEven if the Plaintiff had successfully established that the Defendant was “cohabitating1 ” with Mr. T., which he did not, his motion would still fail. In addition to establishing that the Defendant and Mr. T. were romantically involved, and that they held themselves out to be married by acts or deeds, the trial court instituted a further burden on the Plaintiff to establish that any cohabitation existed for a “ period of sixty days.”The Judgment of Divorce specifically provides that maintenance payments will “cease entirely upon her cohabitation with another adult with whom she is romantically involved for a period of 60 days,” (emphasis added). Plaintiff argues that the photographs submitted establish that the Defendant has “lived” with Mr. T. for more than sixty days and therefore, that his support obligation should be terminated. However, in addition to failing to establish cohabitation (see above) the Plaintiff also failed to introduce sufficient evidence to establish the requisite time period.After considering the arguments set forth by both parties, this Court has determined that the term “period” refers to a continuous uninterrupted span of time.2 In that regard, Plaintiff’s photographs do not depict Mr. T.’s vehicle parked at Defendant’s home for that uninterrupted span of time. Rather, the photographs simply show vehicles owned by Mr. T. parked at the Defendant’s house at various nonconsecutive dates and times during a time span selected by Plaintiff.Plaintiff’s argues that Mr. T.’s presence at the home at random dates on more than sixty separate occasions should be sufficient to establish his burden. However, that would simply ignore the Trial Court’s specific condition that the parties live together for a “period of 60 days.” In this Court’s opinion, no other definition of the term “period” can be applied to the Plaintiff’s burden. To follow the Plaintiff’s logic, Mr. T. could have slept over the Defendant’s house on 60 separate occasions over the course of a year, with that somehow being sufficient to establish the requisite 60-day period. This is clearly not what was intended by the Court’s Decision.In short, while the Plaintiff undertook considerable efforts to establish that the Defendant was in a romantic relationship with her boyfriend, which involved him sleeping over her house frequently, these facts were never disputed. The issue in this case was whether the Plaintiff established by a fair preponderance of the evidence that the Defendant “cohabitated” with Mr. T. “for a period of sixty days.” After considering the arguments set forth by both sides, tougher with the evidence submitted at the hearing, this Court finds that the Plaintiff failed to establish cohabitation as set forth in DRL §248, and further failed to establish the requisite time period as set forth by the Trial Court. Accordingly, his application to terminate his maintenance obligation must be denied. See Messineo v. Messineo, 196 AD2d 826 (2d Dept. 1993); See also, Levy v. Levy, 143 AD2d 975 (2d Dept. 1988).b. Counsel Fees.Defendant seeks an award of counsel fees in the amount of $11,768 pursuant to DRL §238 for the necessity of having to defend against the Plaintiff’s motions, and in furtherance of her own requests for affirmative relief. In support of this application, the Defendant argues that she is the less monied party [former spouse] in this action. Plaintiff opposes the Defendant’s application for counsel fees arguing that it is frivolous. In addition, the Defendant argues that his former wife is not “less monied” as she has considerable assets in the form of an unknown amount of equity in the former marital home, together with retirement accounts with a combined value of approximately $446,446. Plaintiff counters that it is impossible to accurately determine what assets the Defendant has, as he failed to provide the Court with a Statement of Net Worth as required by 22 NYCRR 202.7(k).In support of her application for counsel fees Defendant’s attorney indicates that she entered into two “flat fee” retainers with the Defendant. The first such retainer indicated that she would be paid the sum of $5,500 for her work in this case up to, but not including, the necessity of a hearing. The first retainer also contemplated an additional flat fee to be charged for the hearing, in the amount of $3,500. A second flat fee retainer was entered into between Defendant and her counsel in relation to Husband’s mid hearing motion for a modification of his obligation to maintain life insurance (Mot. Seq. No. 010). The Defendant agreed to pay her attorney the sum of $2,750 to defend against that motion. Despite the “flat fee” nature of the Defendant’s retainers, her attorney has provided the Court with detailed billing records to establish the nature of the legal work she provided. (See Def. Ex. D).Pursuant to DRL §238, a matrimonial litigant may request an award of counsel fees in any “action or proceeding to enforce or modify any provision of a judgment or order entered in an action for divorce . The court may, in its discretion require either party to pay counsel fees and fees and expenses directly to the attorney of the other party to enable the other party to carry on or defend the action or proceeding as, in the court’s discretion, justice requires having regard to the circumstances of the case and of the respective parties.” Like DRL §237 applications, there is a statutory presumption that counsel fees should be awarded to the less monied [former] spouse. See Piacente v. Piacente, 93 AD2d 1189 (4th Dept. 2012); See also, Mollah v. Mollah, 136 AD2d 992 (2d Dept. 2016). When determining whether a counsel fee award is warranted, the Court is directed to consider the “relative financial circumstances of the parties, the relative merit of their positions, and the tactics of a party in unnecessarily prolonging the litigation.” See Cravo v. Diegel, 163 AD3d 920 (2d Dept. 2018).Turning first to the relative merit of the parties’ positions in this proceeding, the present round of post judgment litigation involved three motions. The first (Seq. No. 008), filed by Plaintiff, has been denied for the reasons set forth above, however while the application was unsuccessful, it was not in any way frivolous. The second application (Seq. No. 009), a cross motion filed by the Defendant, requests the counsel fees presently being addressed, together with a directive that the Plaintiff violated his obligation to maintain a life insurance policy. The third application (Seq. No. 010), filed by the Plaintiff, sought a modification of the Judgment of Divorce to allow the Plaintiff to reduce the amount of his life insurance obligation to match the outstanding amount of support owed to the Defendant.Motion Sequence 10 was granted by Short Form Order dated August 14, 2018. Pursuant to that Order, the Plaintiff was authorized to cancel his $250,000 life insurance policy, and directed to obtain a substitute $34,000 policy, representing the remaining amount of his outstanding maintenance obligation. Accordingly, as the Plaintiff prevailed on his application, any request for reimbursement of fees paid to the Defendant’s counsel relating to that application ($2,750) is hereby denied. Likewise, the aspect of the Defendant’s application requesting a finding that the Plaintiff failed to maintain life insurance was also denied, as it was established that the Plaintiff had maintained the required insurance. While “winning” and “losing” is not determinative of a counsel fee application, this Court has considered the merit of the Defendant’s position in relation to her application for counsel fees. See Matter of Ross v. Ross, 96 AD3d 856 (2d Dept. 2012).Turning to the financial circumstances of the parties, Defendant established during the hearing that the Plaintiff earns approximately $118,000 a year from his employment with CBS Television. In addition to his salary, the Plaintiff testified that he owns a house worth approximately $305,000, has a 401K worth approximately $430,000, and a “pension” that he claims is worth $130,000. (Tr. 8/15/18 pp. 78-81). While the Court finds the Plaintiff’s testimony credible in this regard, it is worth noting that he failed to provide any supporting documentation during the hearing regarding his finances. When the Defendant’s attorney inquired as to why he didn’t provide financial documentation, the Plaintiff replied that he “didn’t think that it was needed.” (Tr. 8/15/18 pg.77).In contrast, the Defendant earned the sum of $12,185 from her employment as a hostess for the Hilton Garden Inn, together with maintenance received in the amount of $12,000. These figures were reported on her 2017 tax return. (See Pl. Ex. 3). In addition, the Defendant has assets in the form of the former marital home, with an unknown value, and three retirement accounts with a combined value of $446,446. These figures were contained in the Defendant’s sworn Statement of Net Worth. (See Pl. Exs. 4 & 5 and Def. Ex. B).From the information provided, it is clear that while both parties have considerable assets, the Plaintiff is the party with superior financial ability. Accordingly, there is a rebuttable presumption that counsel fees should be awarded to the Defendant as she is the less monied party in this action. See DRL §238; See also Momberger v. Momberger, 103 AD3d 971 (3rd Dept. 2013).Therefore, after consideration of the totality of the circumstances presented, including the parties’ respective incomes, the complexity of the case, and the merit of the parties’ respective positions in this matter, Defendant’s counsel is hereby awarded counsel fees in the amount of $4,000. See DRL §238; See also, Boukas v. Boukas, 163 AD3d 755 (2d Dept. 2018); Babinksi v. Babinski, 152 AD3d 477 (2d Dept. 2017). This amount represents a contribution to the total amount of fees expended in this case by the Defendant. In so ruling, the Court notes that the Plaintiff is the more monied [former] spouse in this action, and that his primary cause of action, to terminate his maintenance obligation, was unsuccessful. However, in not awarding the amount of fees requested by the Defendant, the Court notes that the Plaintiff’s positions were not frivolous, that he was successful in modifying his insurance obligation, and that the Defendant was unsuccessful in her requests for additional affirmative relief.This award shall be payable directly to Defendant’s counsel in two installments of $2,000. The first installment of this award shall be paid on or before February 28, 2019, and the second installment shall be paid on or before March 29, 2019.This constitutes the Decision and Order of the Court relating to Motion Sequence Numbers 008 and 009, all requests for relief raised in those motions, but not specifically addressed herein, are hereby denied.Dated: January 24, 2019
