Steven Mandel, Esq., The Mandel Law Firm.
Sam R. Watkins, Jr., Esq. Watkins & Cherneff.
Hon. John P. Colangelo, Acting Supreme Court Justice.
In this post-judgment matrimonial action, Plaintiff Preston E. ("Plaintiff") moves by Order to Show Cause to terminate maintenance payments presently required to be made to Defendant Marieke B. ("Defendant"), his former spouse, on the ground that Defendant is and has been co-habiting with another person, namely Jeffrey B. ("B") in violation of the Stipulation of Settlement, dated April 18, 2010 (the "Stipulation"). Plaintiff also seeks to recoup maintenance payments previously made to Defendant during the period of such proscribed co-habitation. Defendant has opposed Plaintiff's motion and interposed a Cross-Motion to increase Plaintiff's child support payments to her in an amount that would, if added to the current level of child support as set forth in the Stipulation, approximate the amount of child support and maintenance together now being paid by Plaintiff. Of course, each party has made the ubiquitous application for counsel fees.
Factual and Procedural Background
The parties were married in November, 2001, and have two children, ages seven and four. In April, 2010 the parties entered into the Stipulation which was incorporated but not merged into the Judgment of Divorce in November, 2011 (the "Judgment").
The Stipulation provided for payment by Plaintiff of child support in the base amount of $2, 083.33 per month, plus 25% of any bonus checks he receives, as well as certain add-on expenses. The parties acknowledged in the Stipulation that such child support provision "deviates from the basic child support obligation set forth in the Child Support Standards Act and has deviated therefrom because the noncustodial parent [Plaintiff] has physical custody of the children 6 of every 14 days and one half of all vacations and public holidays...."
The Stipulation also required Plaintiff to make monthly maintenance payments to Defendant in the amount of $1, 833.33 for four years. Plaintiff's motion revolves around the Stipulation provision pertaining to when and under what circumstances this maintenance obligation may be terminated. That provision, Article XXVII of the Stipulation, states in pertinent part as follows:
"Such maintenance payments shall cease upon occurrence of whichever of thefollowing shall occur first:
The death of either party.
The remarriage of the Wife as herein defined. For purposes of thisStipulation, the term "remarriage" shall mean and include:
entering into a marriage contract or marriage ceremony, whether civil orreligious, and whether or not such marriage be void or voidable and laterannulled or avoided;
cohabiting with an unrelated adult person, whether or not they holdthemselves out as husband and wife, for a cumulative period of 30 days." (Stipulation, p. 27; emphasis added.)
By his motion, Plaintiff contends that his maintenance payments should be terminated since Defendant has been co-habiting with another man within the meaning of the Stipulation since in or about October 2010. In her opposition and cross-motion papers, Defendant conceded as much at least as far as the fact of co-habitation, as opposed to the date of its inception, is concerned. Based on such co-habitation, Plaintiff seeks to terminate maintenance payments immediately, and to obtain reimbursement for any such payments made after the thirtieth day of co-habitation. Defendant opposes any claim for recoupment of maintenance already paid, and has cross-moved for an increase in child support payments should maintenance be ...