Lead Opinion
OPINION OF THE COURT
In 1995, Linda Graev and Lawrence Graev filed separate divorce actions, which were subsequently consolidated. On April 18, 1997, they entered into a settlement agreement that was incorporated, but not merged, into a judgment of divorce entered and filed in June 1997. As relevant to this appeal, the agreement required Mr. Graev to pay Mrs. Graev spousal support payments in the amount of $10,000 per month, subject to a
On September 7, 2004, Mr. Graev advised Mrs. Graev that her cohabitation with ME] an unrelated adult male, had been “documented and photographed by professionals retained by [his] counsel.” Invoking the settlement agreement’s provision for termination in the event of cohabitation, Mr. Graev therefore ceased making spousal support payments as of September 2004.
On October 13, 2004, Mrs. Graev moved in Supreme Court by order to show cause to enforce the settlement agreement’s maintenance provisions; on October 29, 2004, Mr. Graev cross-moved for summary judgment on the ground that a termination event had occurred. Mr. Graev essentially took the position that Mrs. Graev and MP were cohabiting within the meaning of the settlement agreement because MP had stayed overnight in Mrs. Graev’s vacation home in Connecticut for at least 60 substantially consecutive days during the summer of 2004, as borne out by surveillance. Further, he contended, there was an “obvious serious relationship” between Mrs. Graev and MI] and MP was Mrs. Graev’s “lover and life partner,” as illustrated by the number of family occasions—weddings, birthdays and the like— they attended as a couple.
Mrs. Graev argued that she did not “cohabit” with MP during the summer of 2004 because their relationship had long been platonic, as proven by evidence of MP’s sexual incapacity and her diminished sexual desire caused by prescribed medication. In Mrs. Graev’s view, “use [of] the word ‘cohabitation’— rather than ‘living together’ or ‘residing’ . . . plainly mean[t] having sexual relations.” In response, Mr. Graev insisted that “cohabitation could not possibly require ‘sexual relations’ ” under the law and the plain meaning of the settlement agreement, which was intended to be less stringent than section 248 of the Domestic Relations Law.
In subsequent dueling submissions to the motion court, Mrs. Graev for the first time pointed to “a body of New York cases
On February 14, 2005, Supreme Court granted both parties’ motions to the extent of ordering a hearing to determine whether Mrs. Graev’s relationship with MP constituted “cohabitation” within the meaning of the settlement agreement. The motion court first acknowledged that “the parties[’] agreement relating to ‘cohabitation’ draws from, but is far more expansive than, the language found in section 248 of the Domestic Relations Law” (
Given the absence of a definition of “cohabitation” in the settlement agreement, Supreme Court determined that “the plain meaning of’ the word should be examined, as well as various New York cases, none of which “narrowly construed ‘cohabitation’ in the manner [Mrs. Graev] suggested].” (Id.) The motion court opined that “cohabitation consist[ed] of several elements that [Mr. Graev] must establish by a preponderance of the evidence at a hearing,” but did not identify or suggest how much weight to give any individual element (id. at *3). The court twice cited Brown v Brown (
The hearing was held before another Supreme Court Justice. Contending for the first time that the word “cohabitation” was ambiguous, Mr. Graev moved in limine for permission to present extrinsic evidence of the “circumstances surrounding the [settlement] agreement” so as to explain what behavior the parties intended to cover. Mrs. Graev countered that the.motion court “was able to define the term cohabitation in accordance with the plain meaning of the term as construed by the case law” cited in its decision (i.e., Brown, Olstein, Famoso, Markhoff and Scharnweber), thus “removing any question of ambiguity” and establishing the law of the case.
Supreme Court denied the motion on the ground that the motion court’s February 2005 decision held that the word “cohabitation” as used in the settlement agreement was not ambiguous.
In a decision and order dated March 10, 2006, Supreme Court, again relying on the motion court’s decision, opined that because “cohabitation” was not defined in the settlement agreement, she had to consider its plain meaning and those few New York cases construing similar termination clauses. She referred to Black’s Law Dictionary, which defines “cohabitation” to mean “living together, especially] as partners in life, usu[ally] with the suggestion of sexual relations” (Black’s Law Dictionary 277 [8th ed 2004]), but noted that, as the motion court had ruled, “sexual intimacy alone [was] not determinative of . . . cohabitation.” In any event, Supreme Court credited Mrs. Graev’s and MP’s testimony that their relationship ceased to be sexual long before the summer of 2004.
Citing Markhoff and Matter of Emrich v Emrich (
The majority acknowledged that parties to a divorce can, by agreement, alter the terms that would otherwise apply under Domestic Relations Law § 248, and observed that these kinds of agreements are “contracts subject to the principles of contract construction and interpretation” (Graev,
“[a] review of New York case law shows that in the context of these types of separation agreements, the term cohabitation has a plain meaning which contemplates changed economic circumstances, and is not ambiguous. . . . [I]t is . . . sensible to presume that attorneys using a term such as ‘cohabitation’ in a separation agreement are aware of the judicial decisions construing the term” (id. at 451 [emphasis added]).
According to the majority, New York judicial decisions had consistently interpreted “cohabitation” to mean “more than a romantic relationship or series of nights spent together” and to require “the sharing of finances” or “an economic relationship akin to a shared possessory interest in one home,” which could be “proven with evidence that two people keep their personal belongings and receive their mail at the same address” (id. at 452, citing Salas v Salas,
As for this case, the majority found that Mrs. Graev and MP spent more than 60 substantially consecutive nights together during the summer of 2004, and that “their relationship became romantic in January 2003” (Graev,
The dissent would have awarded Mr. Graev summary judgment terminating his obligation to make spousal support payments. Setting out various dictionary definitions for “cohabitation,” the dissent considered it “obvious” that “in the context of the agreement, cohabitation mean[t] living together in a sexual relationship for a period of 60 substantially consecutive days” (id. at 458), and disbelieved Mrs. Graev’s and MP’s testimony about the absence of sexual intimacy in their romantic relationship after March 2003. The dissent did not “take the position that financial interdependence [was] irrelevant,” but “merely state[d] that under the terms of this agreement, it [was] not determinative of the issue of cohabitation, as the majority holds” (id. at 459).
We now reverse. We do not agree that “the term cohabitation has a plain meaning which contemplates changed economic circumstances, and is not ambiguous” absent an explicit provision to the contrary in a separation agreement or stipulation (Graev,
In addition to the definition in Black’s Law Dictionary, already set out, “cohabit” is variously defined as “[t]o live together as husband and wife: often said distinctively of persons not legally married” (3 Oxford English Dictionary 448 [2d ed 1989]); “live together and have a sexual relationship without being married” (The New Oxford American Dictionary 330 [2d ed 2005]); “to live together as or as if as husband and wife” (Webster’s Third New International Dictionary 440 [2002 ed]); “to live together as husband and wife, usually without legal or religious sanction,” or “to live together in an intimate relationship” (Random House Webster’s Unabridged Dictionary 400 [2d ed 2001]); and “to live together as or as if a married couple” (Merriam Webster’s Collegiate Dictionary [10th ed 1997]). The common element in all these definitions is “to live together,” particularly in a relationship or manner resembling or suggestive of marriage, and New York courts have, in fact, used the word “cohabitation” interchangeably with the phrase “living together” (see e.g. Markhoff,
Nor does New York case law establish a distinct meaning— “changed economic circumstances”—for “cohabitation.” The argument that it does stems from the Appellate Division’s one-paragraph, frequently cited decision in Scharnweber, which we affirmed. In that case, Supreme Court concluded that an unrelated male was living with Mrs. Scharnweber in the former marital residence, which entitled her ex-husband to cease support payments and required her to pay $10,000 to discharge a
The Appellate Division reversed, concluding that “the evidence established that [Mrs. Scharnweber and her boyfriend did] not share household expenses or a bedroom and [did] not function as an economic unit” despite the boyfriend’s financial contributions for food and transportation (Scharnweber,
The ambiguity of the word “cohabitation” in this settlement agreement is illustrated by the shape-shifting “plain” meanings and positions advanced by the parties over the course of the litigation. Initially, Mr. Graev claimed that Mrs. Graev and MP were cohabiting because MP stayed overnight in Mrs. Graev’s house for 60 substantially consecutive days, and shared a close
After the motion court ruled that “cohabitation” encompassed many different elements, and not just sexual intimacy, Mr. Graev argued that the word “cohabitation” was, in fact, ambiguous, and therefore extrinsic evidence was required to flesh out its meaning for these parties. Mrs. Graev then tacked about, contending that “cohabitation” was, after all, synonymous with “living together,” and that the “plain meaning of [cohabitation] as construed by the case law” entailed a shared residence, shared household expenses and living together as an economic unit. Having won below on this basis, Mrs. Graev makes the same assertions here. For his part, Mr. Graev insists—in line with the dissent in the Appellate Division—that “cohabitation” plainly contemplates solely a series of 60 more-or-less consecutive nights spent together.
In short, the word “cohabitation” does not have a “plain” meaning in this settlement agreement. Without extrinsic evidence as to the parties’ intent, there is no way to assess the particular factors inherent in the dictionary meanings or case law discussions of “cohabitation” the parties may have meant to embrace or emphasize.
Accordingly, the order of the Appellate Division should be reversed, without costs, and the case remitted to Supreme Court for further proceedings in accordance with this opinion.
Notes
. This provision vests trial judges with discretion to annul support payments “upon proof that the wife is habitually living with another man and holding herself out as his wife” (Domestic Relations Law § 248 [emphasis added]).
. As the majority in the Appellate Division subsequently noted, however, the motion court’s ruling “did not explicitly state that the term ‘cohabitation’ was unambiguous, but instead that the term had not been construed in the narrow manner that Mrs. Graev suggested” initially; i.e., having sexual relations (Graev v Graev,
. According to Mrs. Graev and MI] they started dating in October 2002, but were sexually intimate only from January to March 2003.
. The dissent complains that our resolution of this appeal “creates uncertainty, making it difficult for parties to understand their obligations and responsibilities’ ’; and that “[t]he wiser choice is to articulate a clear rule of law” (dissenting op at 280). But the uncertainty stems principally from parties’ use of a word sufficiently ambiguous to have been interpreted so variously by the courts. Moreover, the dissent’s purportedly “clear rule of law” is hardly fair to those who may have used the word “cohabitation” in an extant separation agreement, intending the meaning ascribed to it by those Appellate Division cases requiring financial interdependence. The wisest rule, of course, is for parties in the future to make their intention clear by more careful drafting.
Dissenting Opinion
(dissenting). The issue in this case is whether the proof of “cohabitation” submitted by Mr. Graev was adequate to discontinue his maintenance obligation under the cohabitation clause in the parties’ agreement. I conclude it was and, therefore, would hold, as matter of law, that Mr. Graev is entitled to terminate his maintenance payments. The majority,
I
After two years of contentious divorce litigation, the Graevs negotiated a settlement agreement, which was incorporated, but not merged, in the judgment of divorce entered in June 1997. According to the terms of the negotiated settlement, Lawrence Graev paid Linda Graev almost $2.5 million and agreed to make maintenance payments of $120,000 a year (later increased to $132,000 a year), with monthly maintenance payments continuing until August 10, 2009—about 12 years after the parties’ divorce. These payments would terminate upon the occurrence of one of four specified events: (1) the death of Mrs. Graev; (2) the death of Mr. Graev; (3) Mrs. Graev’s remarriage; or (4) Mrs. Graev’s “cohabitation . . . with an unrelated adult for a period of sixty (60) substantially consecutive days.”
Linda Graev’s primary residence was an apartment on Fifth Avenue in New York City, but she also maintained a home in Connecticut that she used intermittently and for about two months every summer. Sometime after the divorce, she became acquainted with M.E, who owned a home near hers in Connecticut. They soon began an exclusive and intimate relationship. It is undisputed that M.E and Mrs. Graev spent virtually every day and night together for over 60 days from June through August 2004. M.E had unfettered access to her home, but he did not keep much personal property at Mrs. Graev’s house (with the exception of an approximately two-week period after he sold his home and before he purchased a new house). Each paid for their own expenses and their finances were not commingled. Despite M.E’s daily use of Mrs. Graev’s home, he did not make contributions toward upkeep of the property. As Mrs. Graev’s
After receiving reports from investigators regarding M.E’s consistent presence at his ex-wife’s home, Lawrence Graev moved to terminate his maintenance obligation on the ground that Linda Graev had cohabitated with M.E during the summer of 2004. She countered that she had not triggered a spousal support termination event because M.E owned a home and their finances remained separate. Both Supreme Court and the Appellate Division concluded that there was no cohabitation under the meaning of the parties’ divorce agreement because Mrs. Graev and M.E did not function as a single “economic unit.” Mr. Graev now appeals to this Court as of right on the basis of a two-Justice dissent in the Appellate Division that would have granted his application on the rationale that financial interdependence is not a prerequisite to cohabitation.
II
“A separation agreement is a contract subject to the principles of contract construction and interpretation” (Matter of Meccico v Meccico,
Contrary to the majority’s assertion, I find that the term “cohabitation” has a commonly-accepted core meaning: habitually living with an unrelated adult in the same residence while engaged in an intimate relationship without being legally married to that person (see e.g. Black’s Law Dictionary 277 [8th ed] [“The fact or state of living together, esp. as partners in life,
It is true, however, that the use of the term “cohabitation” without elaboration or conditions is capable of causing ambiguity. This is because a living arrangement becomes cohabitation only if it is habitual and this requirement may not be quantified in every situation. But the parties in this case were careful to avoid this pitfall by indicating that the benchmark would be a specific duration—“sixty (60) substantially consecutive days”—a practice that is implicitly recommended by a leading New York treatise (see Scheinkman, New York Law of Domestic Relations, Appendix B, at 550 [12 West’s NY Prac Series] [“openly and continuously cohabits with an unrelated male for a continuous period exceeding 30 days”]). This was sufficient to make the cohabitation clause here unambiguous.
The Graevs agreed that maintenance payments would terminate if Linda Graev cohabitated for 60 or more substantially consecutive days with a person not related to her. As Mrs. Graev concedes, she and M.P were in an intimate relationship: they held themselves out as a couple to their family, friends and
Ill
The fact that Mrs. Graev and M.E lived together intimately for the relevant time frame but did not share household expenses or “function as an economic unit”—the key component of the Appellate Division’s reasoning—does not provide an adequate basis for departing from the text of this divorce agreement and basic principles of contract law. To begin, in construing the term “cohabitation,” we have never suggested that two people cannot “live together” in an intimate relationship if they do not function as an “economic unit” (see e.g. Matter of Bliss v Bliss,
This Court affirmed, noting only that the evidence failed to establish that “the wife lived with an unrelated male at the former marital residence” (
That being said, I agree with the majority that economic interdependence can be relevant to the cohabitation analysis. As the plain meaning of the term makes clear, cohabitation is comprised of several distinct elements: (1) living with (2) an unrelated adult (3) for a specified period of time or with an expectation of permanence (4) in an intimate relationship (5) without being married to that person. In my view, the extent to which a couple intermingles its finances is pertinent on the issues of whether the relationship is sufficiently “intimate” or whether the parties intended a long-term commitment. But in this case, the intimate nature of the relationship is not in dispute, and the question of duration or permanence is addressed by the agreement itself—60 substantially consecutive days. Hence, the cohabitation clause has been triggered.
The Appellate Divisions’ “economic unit” theory is also undermined by its failure to take into account that financial independence, as well as economic interdependence, may sometimes support a finding of cohabitation. This is so because there can be more than one purpose for a cohabitation clause. It can represent the parties’ understanding that one ex-spouse should
IV
In sum, the majority’s determination that the use of “cohabitation” in divorce agreements gives rise to ambiguity raises serious concerns. First, it will create a proliferation of litigation in virtually every case where these commonly-used cohabitation/ maintenance termination provisions are sought to be enforced. And courts, in turn, will have little helpful evidence when attempting to evaluate the issue other than the self-interested testimony of the parties themselves.
For all of these reasons, I conclude that the maintenance obligation was terminated by operation of the cohabitation
Chief Judge Kaye and Judges Ciparick and Jones concur with Judge Read; Judge Graffeo dissents in a separate opinion in which Judges Smith and Pigott concur.
Order reversed, etc.
. The agreement here did not incorporate the entire statutory standard set forth in Domestic Relations Law § 248 for termination of court-ordered support. Section 248 allows a court, upon application, to exercise discretion “upon proof that the wife is habitually living with another man and holding herself out as his wife, although not married to such man.”
. Although it has been said that “cohabitation,” standing alone, is ambiguous because it can mean to live with a man, a woman, or either a man or a woman (Kripp v Kripp, 578 Pa 82, 92-93,
. The essential holding of the majority’s opinion is that there can be cohabitation without financial interdependence or functioning as an economic unit (see majority op at 273 [recognizing the existence of the Appellate Divisions’ “economic unit” theory but stating that “we have never taken this position and decline to do so” in this case]).
. See e.g. Gordon v Gordon, 342 Md at 309-310,
. Parties to future divorce agreements may wish to consider whether to define “cohabitation” to expressly exclude the “economic unit” concept (see generally Zipparo v Zipparo,