Opinion
May 28, 1976
Appeal from the Monroe Supreme Court.
Present — Moule, J.P., Cardamone, Simons, Mahoney and Dillon, JJ.
Order unanimously affirmed, with costs. Memorandum: In this matrimonial case the wife took up residence with a paramour on the day the decree was entered divorcing her from her former husband. She and the paramour shared a bedroom in the latter's apartment and ate meals together. Both worked but she did the laundry and some of the cooking. With the exception of occasional food purchases, he paid all the bills. When her former husband learned of this arrangement he ceased making alimony payments. She moved to have him held in contempt and he cross-moved to have alimony provisions stricken from the divorce decree. Both motions were granted by Supreme Court, Monroe County. Only the wife has appealed. Section 248 Dom. Rel. of the Domestic Relations Law gives the court the discretionary authority to eliminate alimony provisions from a divorce decree "upon proof that the wife is habitually living with another man and holding herself out as his wife". Here the wife admits living with another man but denies that there was sufficient proof that she held herself out as his wife. We think that there was. Section 248 Dom. Rel. of the Domestic Relations Law does not require the husband to prove that his former wife made affirmative representations to third parties that she and her paramour were married. The fact that they lived together in what might reasonably be considered a marital relationship is sufficient. Under these circumstances, we shall not disturb the court's finding and its use of discretion (see Krawczuk v Krawczuk, 49 A.D.2d 1003).