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Matrimonial Matters: Recent Fourth Department family law decisions

Sara Stout Ashcraft

This fall, the Appellate Division, Fourth Department released several interesting family law decisions, including the ones discussed here.

Kristian J.P. v. Jeanette I.C. (CAF 10-01629, CAF 10-01681) involved cross-petitions between the biological parents and the adoptive parents regarding the children. After a hearing, the Family Court refused to enforce a post-adoption contact agreement between the parties to allow the biological parents visitation, and granted the adoptive parents’ petition directing the biological father stay away from any contact with the adoptive parents and the children.

Stating that under DRL §112-b(4) the “court shall not enforce an order [incorporating a post-adoption contact agreement] unless it finds that the enforcement is in the child[ren]’s best interest” and noting that the biological parents were expressly warned of this provision prior to signing the agreement, the Fourth Department affirmed the Family Court’s finding.

The appellate court further confirmed the lower court’s decision regarding the stay away order issued against the biological father, but modified the order to “plainly state” a date for expiration of the order as required by FCA §154-c[1], i.e., “until the 18th birthday of the youngest [sic] subject child.”

Fewell v. Koons (CAF 10-01240), had the Family Court dismissing a petition claiming violation of a visitation order. The Fourth Department affirmed the dismissal and stated that a hearing in the matter was not required because “even where a factual dispute exists” allegations in a petition have to be sufficient to support a finding of contempt. In this case, “the [petitioner] failed to indicate how the [respondent] allegedly violated the order.” Additionally, the appellate court noted that the Family Court properly found that the order at issue was ambiguous.  

Mastrocovo v. Capizzi (CA 11-00714) concerned the issue of maintenance, specifically, when does it end? The defendant, through an order to show cause, asked the Supreme Court to modify his divorce judgment by ending his maintenance obligation to the plaintiff based on her cohabitation with another man.

The matrimonial settlement agreement, incorporated into the divorce judgment, stated that the defendant was to pay maintenance of $1,000 per month for four and one half years or until “the death of either party, remarriage of the wife or the continued cohabitation of the wife as defined in in Domestic Relations Law §248.”

The undisputed facts were that that plaintiff had lived with her boyfriend in a home for approximately one year before the defendant brought his order to show cause, that the plaintiff had no other residence other than that of her boyfriend, and the plaintiff and her boyfriend shared a bedroom.

After a hearing, the trial court denied the defendant’s request to end maintenance and stated that in order to prove cohabitation under the agreement, the defendant had to prove that in addition to cohabitating with another man, the plaintiff had “held out” herself as the boyfriend’s wife. The lower court also awarded the plaintiff maintenance arrears in the amount of $9,015.38.

The Fourth Department disagreed, citing Pesa v. Pesa (230 AD2d 837, 2d Dept. 1996): “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 also proving that she habitually holds herself out as the other man’s wife.”

The appellate court further rebuffed the plaintiff’s argument that the reference in their agreement to DRL §248, which provides for the termination of maintenance based on “proof that the wife is habitually living with another man and holding herself out as the other man’s wife,” stating that the reference to the particular statute was “for the purpose of defining cohabitation.”

The Fourth Department went on to explain, “under the standard canon of contract construction expression unius est exclusion alterius, that is, that the expression of one thing implies the exclusion of the other,” and held that the agreement’s reference 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 appellate court granted the relief sought by the defendant and reduced the award of arrears to the plaintiff to $1,413.38.

Sara Stout Ashcraft is a partner in Ashcraft, Franklin, Young & Peters LLP. She concentrates her practice in the areas of matrimonial and family law.

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