The following papers have been read on these motions: Defendant’s Order To Show Cause, Affirmation, Affidavit and Exhibits X Plaintiff’s Order to Show Cause, Affirmation, Affidavit and Exhibits X Defendant’s Affidavit and Affirmation in Reply and Exhibits X Plaintiff’s Affidavit and affirmation in Reply and Exhibits X DECISION AND ORDER The Defendant/ex-husband (“ex-husband”) moves by Order to Show Cause (Motion Sequence 004) for an order (1) terminating ex-husband’s maintenance obligation; (2) awarding ex-husband legal fees in the sum of $7,500; and (3) awarding the ex-husband a money judgment in the amount he paid in spousal support during the time period the Plaintiff/ex-wife (“ex-wife”) was cohabitating with an unrelated male. The ex-wife moves by Order to Show Cause (Motion Sequence (005) for (1) a denial of the ex-husband’s application; (2) an adjudication of contempt against the ex-husband for his failure to pay one-half the parties’ tax liability for 2016 and the full amount of the parties’ Federal Income taxes for 2018; (3) punishing the ex-husband “with each and every appropriate sanction” for his contemptuous conduct; (4) enforcing the terms of the parties’ Stipulation of Settlement as it pertains to the payment of the tax liability for 2016 and 2018; and (5) awarding the ex-wife counsel fees in the sum of $10,000. BACKGROUND The parties were married on November 11, 1987 and the parties executed a Stipulation of Settlement on November 21, 2019. The Stipulation of Settlement was incorporated but not merged into a Judgment of Divorce dated August 18, 2020 and entered on August 20, 2020 in the Office of the Nassau County Clerk. The relevant portions of the Stipulation of Settlement are as follows: Spousal Support 1. (a) As and for the support and maintenance of the Plaintiff, the Defendant shall pay to the Plaintiff the sum of $2,000.00 Dollars per month, by check drawn to the Plaintiff’s order and, or [sic] by direct deposit or other electronic means into an account for the Plaintiff, commencing with the first day of the first month following execution of this Agreement to the Plaintiff at her residence or at such other place as she may be found. (b) Support and maintenance for the Plaintiff under the provisions of this Article shall immediately terminate at the earliest of the following times: (i) Remarriage of the Plaintiff; (ii) Death of the Plaintiff or of the Defendant; (iii) Cohabitation by the Plaintiff, pursuant to DRL §248; (iv) 125 months after the first monthly payment is made for a total of one hundred twenty-six (126) months. Upon the occurrence of any of the forgoing contingencies set forth in this subparagraph “(b)”, the Defendant’s obligation pursuant to paragraph “(a)” of this Article shall immediately terminate. The Stipulation of Settlement provides that the parties’ Interim Stipulation dated as of October 15, 2019 would remain in full force and effect. The said Interim Stipulation set forth that the ex-husband would pay the outstanding balance of the parties’ joint federal tax liability in the sum of $5,227.26 and it further provided that the ex-husband would be responsible for any 2018 tax liability. Paragraph “2″ of Article XV entitled “Disclosure and Legal Representation” provide as follows: This Agreement is entire and complete and embodies all understandings and agreements between the parties; and no representations, agreements, promises, undertakings or warranties of any kind or nature have been made to the other to induce the making of this Agreement, except as are expressly set forth in this Agreement, and neither of the parties shall assert that there is any other agreement, oral or written, existing between them…Each party expressly denies relying on any alleged statement or representation of the other, or upon any belief held as to the other not expressly set forth herein, as a condition or as consideration for entering into this Agreement. Finally, the Stipulation of Settlement included self-executed allocutions of the parties which provided at paragraph “5″ that “This Agreement expresses the entire understanding and Agreement between myself and my [spouse], without any secret promises or other agreements or inducement.” CONTENTIONS OF THE PARTIES The ex-husband states that the ex-wife has “habitually cohabitated” with her present fiance “for years.” He states that prior to the execution of the parties’ agreement the ex-wife acknowledged residing with her then-boyfriend but she represented that her cohabitation with her boyfriend was temporary and that she would secure an alternate residence in the event she received maintenance from the ex-husband. The ex-husband sites to an affidavit executed by the ex-wife prior to the signing of the Stipulation of Settlement and he further refers to deposition testimony taken prior to the date of the Stipulation of Settlement. The ex-husband further states that the ex-wife has acknowledged residing with her fiance for a period of over five years in a deposition taken on July 18, 2023 in an unrelated personal injury matter. The ex-husband states that his “reliance” on the ex-wife’s “misrepresentation was pivotal to the negotiation process.” He further states that the ex-wife’s finances are “inextricably intertwined” with those of her boyfriend and same justifies the termination of his maintenance obligation. The ex-wife states that with respect to her claims as they pertain to joint tax liabilities for 2016 and 2018, the ex-husband owes $2,199.25 representing his one-half share of the 2016 liability and he owes $4,607.62 representing the 2018 liability. With respect to the ex-husband’s application for a termination of support, the ex-wife states that she was residing with her then-boyfriend at the time of the execution of the Stipulation of Settlement and there were no representations made by the ex-wife that the said living arrangement was temporary. The ex-wife states that if the ex-husband agreed to pay her spousal support when he was fully aware that she resided with an unrelated male, his position now that his obligation should terminate because she is living with an unrelated male is entirely untenable. The ex-wife further states that by virtue of the language contained in the parties’ Stipulation of Settlement, specifically its reference to DRL Section 248 within the “cohabitation” provision, the ex-husband’s maintenance does not terminate unless and until the wife resides with an unrelated male and they hold themselves out as married. The ex-wife concedes that she is now engaged to be married but she has never held herself out as married to her fiance. The ex-wife states that she is not capable of being self-supportive at this time and the termination of maintenance would be financially devastating. The ex-wife requests an award of attorney’s fees against the husband in the sum of $10,000 based upon his failure to pay the 2016 and 2018 tax liability and the meritless nature of his application. In reply, the ex-husband reiterates that the ex-wife led him to believe that her cohabitation with an unrelated male was temporary and that he is “literally struggling to survive…[and] literally living on less than $4,000 a month.” The ex-husband states that he has satisfied his obligation to pay the tax liability by payment of same in or about April 22, 2024, after the ex-wife filed her application. The ex-wife submits a reply wherein she reiterates that the ex-husband is in a far better position financially and that her maintenance award should not be terminated. She states that the ex-husband, by his own conduct in paying her maintenance over the past five years, has ratified his obligation. She states that he knew that she was living with an unrelated male yet continued to make payments to her for a substantial period of time. The ex-wife acknowledges the ex-husband’s payment of the tax liability but reasons that his payment was made as a result of her pending contempt application. DISCUSSION Domestic Relations Law Section 248 provides as follows: Where an action for divorce or for annulment or for a declaration of the nullity of a void marriage is brought by a spouse, and a final judgment of divorce or a final judgment annulling the marriage or declaring its nullity has been rendered, the court, by order upon the application of the payor on notice, and on proof of the marriage of the payee after such final judgment, must modify such final judgment and any orders made with respect thereto by annulling the provisions of such final judgment or orders, or of both, directing payments of money for the support of the payee. The court in its discretion upon application of the payor on notice, upon proof that the payee 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, may modify such final judgment and any orders made with respect thereto by annulling the provisions of such final judgment or orders or of both, directing payment of money for the support of such payee. The ex-husband has taken the position that as the parties’ Stipulation of Settlement allows for the termination of maintenance upon the “cohabitation by the Plaintiff, pursuant to DRL §248″ and, as the ex-wife is residing with an unrelated male, such a termination is warranted. The Court notes that Domestic Relations Law Section 248 does not contain any derivation of the term “cohabit” and strictly provides that a maintenance termination event occurs when the payee is “habitually living with another person” and “holding himself or herself out as the spouse of such other person.” The ex-husband argues that his position is supported by the Fourth Department case of Mastrocovo v. Capizzi, 87 A.D.3d 1296 (4th Dept., 2011) wherein the Appellate Division modified the lower court’s determination by terminating the ex-husband’s maintenance obligation. In Matrocovo, the Court observes that DRL Section 248 provides for two (2) prongs in order for the termination of maintenance, the first being “habitually living with another person” and the second being “holding himself or herself out as the spouse of such other person.” The Court reasoned that because the parties’ Stipulation of Settlement provided for the termination of maintenance in the event of “continued cohabitation of the wife as defined in DRL §248.” Id. (emphasis supplied), that only the first prong needed to be satisfied in order to terminate maintenance. There are two glaring differences between Mastrocovo v. Capizzi and the case sub judice, namely (1) the undisputed fact that the in the matter sub judice both parties were aware that the ex-wife was residing with an unrelated male at the time they executed their agreement (and for a period of five years before any application was brought) and (2) the parties’ agreement provides for a termination event of “cohabitation pursuant to DRL 248.” These two factors make any reliance upon Mastrocovo wholly improper and would result in this Court essentially rewriting the parties’ agreement to include words of limitation. Initially, Domestic Relations Law provides this Court with the discretion in determining whether the termination of maintenance is warranted. In turning to, and giving effect to, all the language employed by the parties, the reference to “cohabitation” in the parties’ agreement does not, in and of itself, exclude the need to further demonstrate the “holding herself out” condition incorporated within the parties’ agreement by reference to DRL Section 248. One can make the argument that “cohabitation as defined in DRL Section 248″ permits the termination of maintenance upon the payee “habitually living” with an unrelated male (although this Court does not agree) however, this Court find that cohabitation pursuant to DRL Section 248 includes the presumption that the payee is residing with the unrelated individual as a marital unit. In interpreting a contract, the Court of Appeals has held: Construction of an unambiguous contract is a matter of law, and the intention of the parties may be gathered from the four corners of the instrument and should be enforced according to its terms (see Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1 NY3d 470, 475, 807 NE2d 876, 775 NYS2d 765 [2004]; W.W.W. Assoc. v. Giancontieri, 77 NY2d 157, 162, 566 NE2d 639, 565 NYS2d 440 [1990]). The court should “construe the agreements so as to give full meaning and effect to the material provisions” (Excess Ins. Co. Ltd. v. Factory Mut. Ins. Co., 3 NY3d 577, 582, 822 NE2d 768, 789 NYS2d 461 [2004]). A reading of the contract should not render any portion meaningless (see God’s Battalion of Prayer Pentecostal Church, Inc. v. Miele Assoc., LLP, 6 NY3d 371, 374, 845 NE2d 1265, 812 NYS2d 435 [2006]; Excess Ins. Co., 3 NY3d at 582). Further, a contract should be “read as a whole, and every part will be interpreted with reference to the whole; and if possible it will be so interpreted as to give effect to its general purpose” (Matter of Westmoreland Coal Co. v. Entech, Inc., 100 NY2d 352, 358, 794 NE2d 667, 763 NYS2d 525 [2003] [citations omitted]). Beal Sav. Bank v. Sommer, 8 N.Y.3d 318 (2007). (Emphasis supplied). The Second Department has held that: A stipulation of settlement that has been incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation” (Murphy v. Murphy, 120 AD3d 1319, 1320, 992 N.Y.S.2d 565; see McPhillips v. McPhillips, 165 AD3d 917, 919, 85 N.Y.S.3d 541). “Where the intention of the parties is clearly and unambiguously set forth, effect must be given to the intent as indicated by the language used” (Ayers v. Ayers, 92 AD3d 623, 624, 938 N.Y.S.2d 572; see Berlin v. Berlin, 192 AD3d 856, 857, 140 N.Y.S.3d 738). “A court may not write into a contract conditions the parties did not insert or, under the guise of construction, add or excise terms, and it may not construe the language in such a way as would distort the apparent meaning” (Ayers v. Ayers, 92 AD3d at 624; see Kirk v. Kirk, 207 AD3d 708, 711, 174 N.Y.S.3d 381). Palau v. Palau, 219 A.D.3d 919 (2d Dept. 2023) (Emphasis added). Within the context of a matrimonial agreement, the Second Department has held that: In interpreting a stipulation of settlement, “the court should arrive at a construction that will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized” (Matter of Schiano v. Hirsch, 22 AD3d 502, 503, 803 N.Y.S.2d 643 [2005]; see Kirk v. Kirk, 207 AD3d at 711; Shkreli v. Shkreli, 186 AD3d 638, 639, 129 N.Y.S.3d 177 [2020]). A court may not rewrite an agreement “by adding or excising terms under the guise of construction, and it may not construe the language in such a way as would distort the contract’s apparent meaning” (Kirk v. Kirk, 207 AD3d at 711 [internal quotation marks omitted]; see Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1 NY3d 470, 475, 807 N.E.2d 876, 775 N.Y.S.2d 765 [2004]; McPhillips v. McPhillips, 165 AD3d 917, 919, 85 N.Y.S.3d 541 [2018]). “‘Moreover, a court cannot reform an agreement to conform to what it thinks is proper, if the parties have not assented to such a reformation’” (Tamburello v. Tamburello, 113 AD3d 752, 753, 978 N.Y.S.2d 864 [2014], quoting Cohen-Davidson v. Davidson, 291 AD2d 474, 475, 740 N.Y.S.2d 68 [2002]; see Cappello v. Cappello, 286 AD2d 360, 361, 729 N.Y.S.2d 175 [2001]). Anderson v. Anderson, 221 A.D.3d 941 (2d Dept., 2023). The facts in this matter as well as the language employed by the parties within their Stipulation of Settlement make it clear to the Court that it was the clear intention of the parties for the cohabitation of the payee/ex-wife to serve as a maintenance termination event in as much as she was holding herself out as married at the time she habitually resides with an unrelated individual. The ex-wife resided with an unrelated male at the time of the execution of the agreement and both parties were aware of that fact. There is clear and unequivocal language throughout the parties’ agreement which provides that there were not representations made to either party aside from what was set forth in the parties’ Agreement and therefore any statements to the contrary by the ex-husband are wholly disregarded by this Court. It is clear that the parties intended for the maintenance termination event to include the “holding herself out as married” component and to determine otherwise would be essentially reform the Stipulation so as to remove any reference to DRL Section 248. Inasmuch as the ex-husband is required to demonstrate that the ex-wife has held herself out as married in order to termination his maintenance obligation, the Court finds that he has not presented sufficient evidence of same. The allegations of the ex-husband do not demonstrate “some assertive conduct” on the part of the ex-wife to warrant a finding of “holding out.” See Bliss v. Bliss, 66 N.Y.2d 382 (1985); Northrup v. Northrup, 43 N.Y.2d 566 (1978). Based upon the foregoing, it is hereby ORDERED that the ex-husband’s Order to Show Cause is DENIED in its entirety. The ex-wife seeks enforcement of the parties* Stipulation of Settlement with respect to the payment of tax liabilities and further seeks to hold the ex-husband in contempt for his failure to comply with same. Those branches of the ex-wife’s application are moot as the ex-husband has since made the necessary payments. The ex-wife has requested an award of counsel fees in the sum of $10,000. Domestic Relations Law Section 238 provides that a party may seek an award of attorney’s fees in any action to enforce or modify any provision of a judgment or order. It further provides that in support of such an application “Both parties to the action or proceeding and their representative attorneys, shall file an affidavit with the court detailing the financial agreement between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses.” The ex-husband does not dispute that he failed to pay the tax liability and, in fact, he paid same after having received the ex-wife’s contempt application. In light of the foregoing, the Court finds that an award of attorney’s fees to the ex-wife is warranted. Accordingly, it is hereby ORDERED, that branches “1″ through “4″ of the ex-wife’s Order to Show Cause are DENIED as moot; and it is further ORDERED, that branch “5″ of the ex-wife’s Order to Show Cause is GRANTED to the extent that the ex-husband is directed to pay the sum of $7,500.00 to the ex-wife’s counsel within thirty (30) days of the date of this Decision and Order; and it is further ORDERED, that if payment of legal fees is not made as directed herein, the Clerk of the County of Nassau, upon payment of all appropriate fees, shall enter judgment in favor of the ex-wife’s counsel as against the ex-husband upon presentation of this Order together with an Affirmation of Non-Compliance. All other requested relief not specifically addressed herein is DENIED. This constitutes the Decision and Order of this Court. Dated: September 17, 2024
