
    Anna Northrup, Appellant, v Ray A. Northrup, Sr., Respondent.
    Argued January 6, 1978;
    decided February 14, 1978
    
      POINTS OF COUNSEL
    
      Richard F. Anderson for appellant.
    I. Section 248 of the Domestic Relations Law modification of the divorce decree to eliminate alimony was impermissible because the ex-wife, while cohabiting with another man, was not "holding herself out as his wife.” II. Section 248 does not require elimination of alimony for the ex-wife’s postmarital misconduct. III. Section 248 permits the termination of alimony where the ex-wife pretends she’s remarried. (Hayes v Hayes, 220 NY 596; Matter of Hall v Hall, 82 Misc 2d 814, 55 AD2d 752; Stern v Stern, 88 Misc 2d 860.) IV. The plain meaning of section 248 requires more than cohabitation to constitute holding oneself out as married. (Stern v Stern, 88 Misc 2d 860.) V. If section 248 is an anachronism, change should come from the Legislature instead of the court. (Erkenbrach v Erkenbrach, 96 NY 456; Steinberg v Steinberg, 46 AD2d 684, 36 NY2d 690.) VI. Absent a remarriage or holding out within the meaning of section 248, termination of alimony is inappropriate unless changed financial circumstances are demonstrated. (Matter of Hall v Hall, 82 Misc 2d 814, 55 AD2d 752.)
    
      George A. Schell for respondent.
    I. The decision below should be affirmed since only factual issues were present. 
      (People ex rel. Scarpetta v Spence-Chapin Adoption Serv., 28 NY2d 185; Caristo Constr. Corp. v Diners Fin. Corp., 21 NY2d 507.) II. The trial court properly exercised its discretion in terminating husband’s obligation to pay alimony pursuant to section 248 of the Domestic Relations Law. (Dunn v Dunn, 4 Paige Ch 425; Pollock v Pollock, 71 NY 137; Wilcox v Wilcox, 46 Hun 32; Matter of Erlanger, 145 Misc 1.) III. Section 248 of the Domestic Relations Law is designed to eliminate situations where an ex-wife is receiving "double support”. (Levine v Levine, 79 Misc 2d 149; Krawczuk v Krawczuk, 49 AD2d 1003.)
   OPINION OF THE COURT

Cooke, J.

On March 7, 1974, plaintiff Anna Northrup was granted a judgment of divorce from defendant Ray A. Northrup Sr. Defendant was awarded custody of the children of the marriage, but was also ordered to pay alimony to plaintiff in the sum of $160 per month. After making two payments, defendant defaulted and, on August 19, 1974, plaintiff moved to hold him in contempt and for a judgment for unpaid arrears. Defendant cross-moved for an order modifying the judgment of divorce to eliminate the provision for alimony.

The basis for defendant’s cross motion is section 248 of the Domestic Relations Law which provides, in relevant part, as follows: "The court in its discretion upon application of the husband on notice, upon proof that the wife is habitually living with another man and holding herself out as his wife, although not married to such man, may modify such final judgment and any orders made with respect thereto by annulling the provisions of such final judgment or orders or of both, directing payment of money for the support of such wife.”

A hearing was held on defendant’s contention that he should no longer be required to pay alimony in view of the fact that his former wife was living openly and notoriously with another man. Based on uncontradicted evidence, the hearing court found that, from March 7, 1974 to September 19, 1974, plaintiff lived with Douglas Prentice, not her husband, shared the same bedroom with him, cooked meals, did his wash, permitted him to use her car, and shared household expenses with him. It was also determined that there was no evidence that plaintiff ever stated to anyone that she was married to Prentice.

Supreme Court concluded that the evidence overwhelmingly established that plaintiff was habitually living with another man not her husband, and then focused upon the meaning of the phrase "holding herself out as his wife, although not married to such man” in section 248 of the Domestic Relations Law. Reasoning that the Legislature did not intend the continued payment of alimony to be dependent merely upon statements or representations made by a former wife, it construed the statute to mean "statements or conduct which would lead a person to believe that the parties are living and associating as husband and wife.” On this analysis, the provision for alimony was eliminated. However, defendant was held in contempt for his prior failure to make alimony payments, fined in the sum of his arrears, and ordered to pay plaintiff’s counsel $300 as fees for his services.

The Appellate Division unanimously affirmed, stating that there was sufficient proof that plaintiff held herself out as the wife of the man with whom she was living. Underlying this determination was its legal conclusion that section 248 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. Instead, it was held that cohabitation in what might be reasonably considered a marital relationship is sufficient to satisfy the statutory predicate. This decision was in error and, accordingly, the order appealed from should be reversed.

The issue is purely one of statutory construction. The courts of this State have no common-law jurisdiction over divorce or its incidents. The power to modify a provision for alimony is only such as is conferred by statute (Waddey v Waddey, 290 NY 251, 253; Erkenbrach v Erkenbrach, 96 NY 456, 462-463). Indeed, early cases held that, in the absence of statutory authority, the court had no right to terminate the wife’s alimony on the ground that she had remarried (Shepherd v Shepherd, 1 Hun 240, affd 58 NY 644; see, generally, Alimony—Effect of Remarriage, Ann., 48 ALR2d 270, 289-291). That bar, of course, has long since been eliminated by statute (see Domestic Relations Law, § 248 [first sentence]). However, even immoral conduct will not permit the court to make a modification unless the type of conduct engaged in is contemplated by the statutory language (see Hayes v Hayes, 220 NY 596; 2 Foster-Freed, Law and the Family, § 26:19).

This case illustrates the statutory distinction between “habitually living with another man”, on the one hand, and "holding herself out as his wife”, on the other. This is a two-part test. The absence of proof in a particular case does not justify an inference that cohabitation alone manifests a holding out.

The hearing court was concerned that the statute might be circumvented by a woman who openly proclaims that she is not married to the man with whom she is living. Hence, it examined the conduct of plaintiff and Prentice. But none of the actions exhibited by plaintiff constitute a "holding out”. In other contexts, a holding out is said to require "some assertive conduct” (People v Shokunbi, 89 111 App 2d 53, 58 [holding one’s self out as a physician]). However, this does not mean that there must be some statement such as "I am his wife”, although assertions such as this would be sufficient proof. To be sure, conduct may constitute a holding out. For example, one court has held that a woman holds herself out as a man’s wife by these actions: (1) applying for a telephone, designating him as her spouse and asking that she be listed in the directory with his surname; and (2) changing the names on their joint checking account so that she uses his surname (Lang v Superior Ct. of Los Angeles County, 53 Cal App 3d 852). These examples are not meant to suggest a limitation on the type of proof required, but simply to illustrate the types of conduct which might demonstrate a holding out. Here, there has been no such showing. There is no evidence here other than that plaintiff for six months habitually lived with another man. This is not enough.

The statute may .indeed be circumvented where the woman negates any inference that she is holding herself out as married (see Stern v Stern, 88 Misc 2d 860, 864). To be disapproved, however, are holdings that, in the absence of efforts to show that the parties are not man and wife, the "life style” of the parties constitutes a "holding out” (see Matter of Anonymous, 90 Misc 2d 801, 804). The fact that a woman may avoid the loss of alimony by tailoring her conduct should not be surprising. The forerunner (L 1938, ch 161) to the present statute was specifically enacted to counteract a situation where a woman, who represented that she was married to the man with whom she was living, was held entitled to alimony because she had not, in fact, remarried (see Citron v Citron, 91 Misc 2d 785 [discussion of legislative history]). The statute thus imposes two requisites for the termination of alimony in the absence of remarriage: (1) habitually living with a man, and (2) holding herself out as his wife. The courts are without power to modify merely on proof of one.

This court is not bound by the finding of the courts below that there was a holding out. The facts are undisputed. The issue before us is the legal conclusion to be drawn from that which has been found. We conclude that, as a matter of law, defendant has failed to establish that plaintiff held herself out as married to another man (cf. Cohen and Karger, Powers of the New York Court of Appeals, § 108, pp 452-453). That individuals may conform to the life style of a married couple is not enough.

The fact of the matter is that section 248 of the Domestic Relations Law, as presently drafted, does not authorize a court to terminate a provision for alimony merely upon a showing that an ex-wife is living with another man. The court cannot extend the reach of the statutes (see, e.g., Leffler v Leffler, 50 AD2d 93, affd 40 NY2d 1036 [section 248 held inapplicable to separation agreements]; Wechter v Wechter, 50 AD2d 826, affd 40 NY2d 964 [grounds for divorce are limited to those set forth in section 170]). Change, if deemed advisable, must come from the Legislature.

Accordingly, the order of the Appellate Division, should be reversed, with costs, and defendant’s cross motion to modify the decree of divorce denied.

Wachtler, J. (dissenting).

I cannot agree with the majority that the Legislature intended section 248 of the Domestic Relations Law to be interpreted in such a narrow, technical and unrealistic manner. Ironically this is not the first time this court has frustrated the purpose of the statute by employing a literal interpretation which does not take into account current social realities.

Prior to 1938 section 1159 of the Civil Practice Act (now Domestic Relations Law, § 248) required the former wife to remarry before the court could alter the alimony decree (see, e.g., Citron v Citron, 91 Misc 2d 785, for a discussion of the legislative history). In Waddey v Waddey (290 NY 251) this provision was literally interpreted to require a ceremonial remarriage. As interpreted the statute contained a loophole which permitted a former wife to continue to collect support from her former husband although she was living with another man holding herself out to be his wife, so long as she simply avoided formalizing the relationship by a marriage ceremony (Waddey v Waddey, supra).

Rejecting this interpretation the Legislature, in 1938, amended the statute to provide that the court could intervene to alter the alimony award if the former wife "is habitually living with another man and holding herself out as his wife” (L 1938, ch 161). Today the court has compounded the error by giving a technical interpretation to the liberalizing amendment. And, once again, they have read the statute in such a way as to virtually render it a dead letter by requiring a degree of formality which the majority must recognize is unrealistic in terms of current social standards and practices. Indeed the majority concedes that their interpretation of the amendment creates a new method for avoiding the statute.

A court of course cannot rewrite a statute but the statute must be given a reasonable interpretation—one which will maintain its effectiveness and carry out the legislative intent (see, e.g., McKinney’s Cons Laws of New York, Book 1, Statutes, §§ 143, 144). In my view, the amendment to the statute following the Waddey decision shows that the Legislature intended the courts to consider the extent of the wife’s new relationship without respect to formalities. They intended the courts to recognize current social realities in applying the statute. Above all they intended to close the loophole and not create a new means for avoidance.

Finally I would note that the statute does not provide for automatic modification or termination of alimony whenever the former wife is residing with a man. It simply gives the court the power to exercise sound discretion to eliminate injustice and to defuse an emotionally charged situation. Today’s decision leaves the courts powerless to relieve the former husband of the obligation of subsidizing his former wife’s affairs no matter how unfair this may be under the circumstances. It is hard to imagine that the Legislature ever intended such a grotesque result.

Accordingly I would affirm the order of the Appellate Division.

Chief Judge Breitel and Judges Jasen, Jones and Fuchs-berg concur with Judge Cooke; Judge Wachtler dissents and votes to affirm in a separate opinion in which Judge Gabrielli, concurs.

Order reversed, etc.  