Wednesday, October 22, 2008
A majority of the New York Court of Appeals held yesterday that the word "cohabitation" was ambiguous as used in a separation agreement -- namely, because it is unclear whether two people must engage in sexual relations to be cohabiting rather than, well, simply living together.
Husband and wife separated and agreed that husband would pay wife $11,000 a month for a period of time, unless one of four specified "termination events" occurred. One such event was "[t]he cohabitation of the Wife with an unrelated adult for a period of sixty (60) substantially consecutive days." The agreement did not define cohabitation.
Husband argued that he no longer had to make payments to wife, alleging that the wife and an unrelated man ("MP") were cohabiting within the meaning of the settlement agreement -- because MP had stayed overnight in the wife's vacation home in Connecticut for at least 60 substantially consecutive days during the summer of 2004, as borne out by surveillance.
Wife argued that she did not "cohabit" with MP, and that their relationship was strictly platonic, as proven by evidence of MP's sexual incapacity and her diminished sexual desire caused by prescribed medication. She argued that "use [of] the word 'cohabitation' –- rather than 'living together' or 'residing' . . . plainly mean[t] having sexual relations." The husband argued that the definition of cohabitation "could not possibly require sexual relations."
The trial court sided with the husband, holding that sexual relations were not determinative of cohabitation, and noting that the parties functioned as an economic unit by sharing expenses. Over a two judge dissent, the Appellative Division affirmed. Judge Read, writing for a 4-judge majority of the Court of Appeals, reversed:
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, 46 AD3d at 451), or, put slightly differently, is necessarily determined by whether a "couple share[s] household expenses or function[s] as a single economic unit" (id. at 453). Rather, the word "cohabitation" is ambiguous as used in this separation agreement: neither the dictionary nor New York caselaw supplies an authoritative or "plain" meaning. Similarly, courts in other states have not ascribed a uniform meaning to the word "cohabitation" as used in separation agreements (see Allen, Annotation, Divorced or Separated Spouse'sLiving with Member of Opposite Sex as Affecting Other Spouse's Obligation of Alimony or Support Under Separation Agreement, 47 ALR4th 38, §§ 6[a] and 6[b]).
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" (Oxford English Dictionary [2d ed 1989]); "to live together and have a sexual relationship without being married" (The New Oxford American Dictionary [2d ed 2005]); "to live together as or as if as husband and wife" (Webster's Third New International Dictionary ); "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 [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, 225 AD2d at 1001; Olstein, 309 AD2d at 698; Scharnweber, 65 NY2d at 1017). Ultimately, however, "living together" as if husband and wife is no less opaque than "cohabitation": both bring to mind a variety of physical, emotional and material factors, and therefore might mean anynumber of things in a separation agreement, where otherwise unexplained in the text, depending on the parties' intent. For example, the parties here might reasonably have meant "cohabitation" to encompass whether [the wife] engaged in sexual relations with an unrelated adult; whether she and the unrelated adult commingled their finances or -- just the opposite -- whether she supported the unrelated adult financially; whether she and the unrelated adult shared the same bed; or some combination of these or other factors associated with living together as if husband and wife.
Therefore, the majority of the court held that the word "cohabitation" was ambiguous in the parties separation agreement and, without extrinsic evidence of the parties' intent, the court could not assess what they meant by it. The Court reversed and remitted for further proceedings.
Judge Graffeo, writing for the dissent, found 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." She explained:
In fact, we have explained that "cohabitation" is synonymous with the phrase "habitually living with another" person for purposes of the maintenance termination provisions of Domestic Relations Law § 248 (citations omitted). 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, West's New York Practice Series, New York Law of Domestic Relations, Appx B, at 550 ["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.
Graev v. Graev, __ N.Y.3d ___ (Oct. 21, 2008).
[Meredith R. Miller]