Opinion
No. 14–025.
11-19-2014
David HUNSINGER, Plaintiff, v. Patricia HUNSINGER, Defendant.
Miller Mayer, LLP, by: Anthony N. Elia, Esq., Ithaca, attorneys for plaintiff. Schlather, Stumbar, Parks & Salk, LLP, by: L. Richard Stumbar, Esq., Ithaca, attorneys for defendant.
Miller Mayer, LLP, by: Anthony N. Elia, Esq., Ithaca, attorneys for plaintiff.
Schlather, Stumbar, Parks & Salk, LLP, by: L. Richard Stumbar, Esq., Ithaca, attorneys for defendant.
Opinion
PHILLIP R. RUMSEY, J.
Plaintiff commenced this action seeking to terminate his obligation to pay maintenance due to the remarriage of defendant, his former wife. The parties were married on July 12, 1980. They separated in September 2009 and participated in a collaborative law process that resulted in their execution of a separation agreement on April 15, 2011 (the Separation Agreement), that was incorporated without merger in a Judgment of Divorce granted on May 18, 2011. In relevant part, the Separation Agreement provides that plaintiff shall pay maintenance until 2023, unless previously terminated by “[defendant's] remarriage” (Separation Agreement, Article XII [p. 19] ). Plaintiff alleges that defendant has entered into a polygamous marriage with Kenneth Hill and Janice Hill, thereby terminating his obligation to pay maintenance. He now moves for an order: (1) striking the proposed changes or corrections that defendant seeks to make to the transcript of her examination before trial; (2) compelling her to provide responses to his outstanding disclosure demands; and (3) compelling her to submit to another examination before trial. Defendant cross-moves for summary judgment dismissing the complaint.
Defendant's cross-motion will be considered prior to plaintiff's motion, because a decision granting summary judgment dismissing the complaint would render plaintiff's disclosure motion moot, requiring that it be denied. Plaintiff claims that defendant entered into a marriage with Hills, as contemplated by the Separation Agreement, based upon the facts that defendant: (1) has stated that she is “married” to the Hills; (2) resides with Hills in a home that all three own together as joint tenants; (3) wears a ring comprised of three intertwined bands that was given to her by Hills, which he believes is a wedding ring; and (4) wrote in a personal journal prior to the parties' divorce of her desire to be married to Kenneth Hill and of her plan for a polyamorous relationship with both Hills. Even if such facts are assumed to be true for purposes of opposing defendant's cross-motion, they are insufficient to show that defendant has remarried.
“A settlement agreement that is incorporated into, but not merged with, a judgment of divorce remains an independent contract, binding on the parties and subject to the rules of contract interpretation. Where the language of the agreement is clear, the court must determine the intent of the parties by examining the agreement itself. Whether language is ambiguous is a matter of law to be determined by the court, and in rendering this determination a court may not add or excise terms, nor distort the meaning of those used.”
Matter of Drake v. Drake, 114 AD3d 1119, 1120–1121 (2014) (quotation and citations omitted); see also Vega v. Papaleo, 119 AD3d 1139, 1139 (2014) ( “analysis of disputed terms is based upon their plain meaning, as well as consideration of whatever may be reasonably implied from that literal language”); Momberger v. Momberger, 97 AD3d 945 (2012).
The language of the Separation Agreement is clear and unambiguous—it provides for termination of maintenance upon defendant's “remarriage,” without attempting to qualify that term or change its ordinary meaning. Thus, the only plain meaning that can be ascribed to the term remarriage is defendant's entry into a legally-valid marriage with another person capable of consent. Plaintiff alleges that defendant has entered into a polygamous marriage with two individuals who, as his counsel conceded at oral argument, are already legally married to each other. However, any attempt by defendant to marry either or both of the Hills would be void and of no legal effect. New York allows a person to have only one spouse at a time; a marriage is absolutely void, ab initio, if contracted by a person who is already legally married to another (see Domestic Relations Law § 6 ; Campbell v. Thomas, 73 AD3d 103, 110–111 [2010] ; Antony T. v. Rosemarie B.T., 41 Misc.3d 1208[A], 2013 N.Y. Slip Op 51615[U]; see also Ponorovskaya v. Stecklow, 45 Misc.3d 597, 605 [2014] ).
By attempting to characterize defendant's purported relationship with Hills as a marriage, plaintiff is effectively attempting to change the terms of the parties' negotiated agreement that requires him to pay maintenance upon dissolution of the parties' long-term marriage in which he had been the primary wage-earner with significantly greater earning capacity than defendant. The parties could have defined remarriage in the Separation Agreement in a manner that may have included the circumstances under which plaintiff alleges defendant now lives, but they did not (see e.g. Matter of Emrich v. Emrich, 173 A.D.2d 818, 819 [1991], appeal denied 78 N.Y.2d 860 [1991] [remarriage specifically defined to include the former wife holding herself out as remarried without an actual remarriage and/or her residing with a male on a substantially continuous basis for more than 60 days]; J.A. v. L.A., –––Misc.3d ––––[A], 2014 N.Y. Slip Op 50944[U] [maintenance to terminate upon ceremonial remarriage]; see also Vega, 119 AD3d 1139 [maintenance to terminate if the wife cohabits with an individual for more than 75 days within any six-month period of time]; Fecteau v. Fecteau, 97 AD3d 999 [2012] [maintenance to terminate upon remarriage, or if the wife lives habitually with another person over the age of eighteen years in a spousal type of relationship]; Smith v. Smith, 233 A.D.2d 830 [1996] [maintenance to terminate upon wife's cohabitation with another man] ). Where a separation agreement recites specific events that terminate maintenance, such as remarriage, without including other events that could potentially terminate maintenance, such as cohabitation or ceremonial remarriage, it must be construed as requiring that maintenance continue notwithstanding the occurrence of such alternative events (see Brown v. Brown, 226 A.D.2d 1010 [1996] ).
Based on the foregoing, defendant's cross-motion is granted and the complaint is dismissed, with prejudice.
This decision constitutes the order of the court. The transmittal of copies of this decision and order by the court shall not constitute notice of entry.