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Burns v. Burns

Supreme Court of New York, Fourth Department

July 25, 2018

ELEANOR MCQUILKIN BURNS, PLAINTIFF-APPELLANT,
v.
ANDREW MCINTOSH BURNS, DEFENDANT-RESPONDENT.

          BARNEY & AFFRONTI, LLP, ROCHESTER (FRANCIS C. AFFRONTI OF COUNSEL), FOR PLAINTIFF-APPELLANT.

          BURNS & SCHULTZ LLP, PITTSFORD (ANDREW M. BURNS OF COUNSEL), FOR DEFENDANT-RESPONDENT.

          PRESENT: CENTRA, J.P., NEMOYER, CURRAN, AND TROUTMAN, JJ.

          OPINION

          NeMoyer, J.

         Appeal from an order of the Supreme Court, Monroe County (Richard A. Dollinger, A.J.), entered June 13, 2017. The order, among other things, denied plaintiff's motion to hold defendant in contempt.

         It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

         According to the Domestic Relations Law and its common-law antecedents, the concept of spousal maintenance is limited to payments made to an unmarried ex-spouse. If divorcing spouses wish to vary this definition and provide for post-remarriage maintenance, they must do so clearly and unambiguously. In this case, nothing in the parties' agreement reflects an intent to depart from the statutory definition of maintenance with the clarity required by the governing caselaw. Consequently, as Supreme Court properly determined, defendant husband's maintenance obligation ended when plaintiff wife remarried.

         FACTS

         The parties were married in June 1992. In September 2004, the husband vacated the marital residence; shortly thereafter, the wife sued for divorce. The parties subsequently executed a divorce settlement agreement pursuant to Domestic Relations Law § 236 (B) (3). In the agreement, the parties specified that "[a]ll matters affecting interpretation of this [a]greement and the rights of the parties [t]hereto shall be governed by the laws of the State of New York."

         The agreement obligated the husband to pay "rehabilitative maintenance" to the wife pursuant to the following schedule:

"(a) From December 1, 2007 - November 30, 2012: $5, 500.00 Per Month = $66, 000.00 Rehabilitative Maintenance Per Annum
(b) From December 1, 2012 - November 30, 2014: $2, 916.00 Per Month = $34, 992.00 Rehabilitative Maintenance Per Annum
(c) From December 1, 2014 - November 30, 2015: $2, 500.00 Per Month = $30, 000.00 Rehabilitative Maintenance Per Annum
(d) From December 1, 2015 - November 30, 2020: $2, 200.00 Per Month = $26, 400.00 Rehabilitative Maintenance Per Annum."

         The foregoing constitutes the entirety of the agreement's maintenance provision. Critically, the agreement is silent regarding the effect, if any, of the wife's remarriage upon the husband's maintenance obligation. The agreement was subsequently incorporated, but not merged, into a judgment of divorce rendered by Supreme Court (Doyle, J.) in ...


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