Lefkon v. Drubin

143 A.D.2d 400, 532 N.Y.S.2d 567, 1988 N.Y. App. Div. LEXIS 9239

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 19, 1988
• Status: Published

Opinions

— In a matrimonial action in which the parties were divorced by a judgment entered May 8, 1979, the plaintiff wife appeals from an order of the Supreme Court, Queens County (Zelman, J.), dated July 6, 1987, which, after a hearing, denied her motion for a money judgment against the defendant for arrears of alimony, an order holding the defendant in contempt for refusal to comply with the judgment of divorce and an award of counsel fees.

Ordered that the order is reversed, with costs, and the matter is remitted to the Supreme Court, Queens County, for a new determination in accordance herewith.

The defendant husband contends that the plaintiff wife was habitually living with her paramour in violation of their separation agreement, thereby releasing him from his obligations to pay alimony. We disagree.

The testimony adduced at the trial established that although the plaintiff’s paramour spent approximately two nights a week at the plaintiff’s apartment, he maintained his own separate residence. The plaintiff’s paramour received his mail at his home and kept his belongings there. He did not financially contribute to the payment of the plaintiff’s expenses. Under these circumstances, defendant failed to establish by a preponderance of the evidence that the plaintiff was habitually living with another man (see, Salas v Salas, 128 AD2d 849, lv dismissed 70 NY2d 747).

Furthermore, pursuant to the parties’ separation agreement, the husband is obligated to pay the wife’s attorneys’ fees in the event she is forced to institute legal proceedings to enforce the separation agreement where the husband is in default thereof. Accordingly, the plaintiff is entitled to an award of counsel fees. Therefore, the matter is remitted to the Supreme Court, Queens County, for a new determination with respect to the plaintiff’s motion, which shall include an award of arrears of alimony, and an award of counsel fees. Mollen, P. J., Mangano and Kunzeman, JJ., concur.