Armas v. Armas

172 A.D.2d 1084, 569 N.Y.S.2d 262, 1991 N.Y. App. Div. LEXIS 6234

Opinion

Order unanimously reversed on the law without costs, income execution reinstated and matter remitted to Supreme Court for a hearing, in accordance with the following Memorandum: Supreme Court erred in granting defendant’s application to vacate the maintenance provision of the divorce judgment on the ground that plaintiff was habitually living with another man. Cohabitation alone is insufficient as a matter of law. The court was obligated to determine whether plaintiff was holding herself out as the other man’s wife (see, Domestic Relations Law § 248; Matter of Bliss v Bliss, 66 NY2d 382, 388; Northrup v Northrup, 43 NY2d 566, 571-572). The matter is remitted for a hearing on this issue because it cannot be resolved solely on the basis of conflicting affidavits (see, Levy v Levy, 143 AD2d 975, 977). The income execution vacated by Supreme Court is reinstated. (Appeal from Order of Supreme Court, Nassau County, Becker, J.—Maintenance and Child Support.) Present—Denman, J. P., Green, Balio, Lowery and Davis, JJ.