Matter of Anonymous

In Matter of Anonymous (90 Misc 2d 801 [Fam Ct, Nassau County 1977]), the divorced wife and man with whom she was living acted in manner that would indicate a husband and wife relationship, including socializing and traveling as a couple, so that a reasonable person would believe that they were living in a marital relationship. Under these factual predicates, there was a "holding out" of the woman as the man's wife within meaning of statute providing for termination. The court noted: "Every day when he was through with his normal day's work, Ted came home to Carol; they spend their weekends together; he had no other residence; they ate their meals together; they socialized as a couple; she never went out with any other man; they shared the food shopping; Ted does the normal chores both inside and outside the house; they go on trips together; Carol's children refer to Ted's parents as grandma and grandpa; Ted takes Carol's children to sporting events; together with other acts that would indicate a husband and wife relationship." (Id. at 804.) Based on these facts, the court considered whether to modify maintenance. But, in a sentiment that echoes in this case, the court held: "In this day, when the courts are striving to eliminate discrimination between the sexes, section 248 is a step backward to the dark ages. The statute provides 'that the court in its discretion upon application of the husband' may modify a final judgment. Relief is, therefore, limited to the husband, at the expense of the wife. Although she has become a divorced person, she may be penalized for her sexual activities while no penalty is imposed upon the former husband if he participates in similar sexual activities. Furthermore, the statute and case law make it safer for a divorced woman to avoid the punitive effect of section 248 by playing the field with different men for short periods of time. On the other hand, if she resides with one man for a continuous period of time in a relationship that can reasonably be regarded as a husband and wife relationship, she does so at her economic peril." (Id. at 809 .) The court added: "In view of the present broad discretionary powers granted to the court in section 236 of the Domestic Relations Law, the court questions the need to retain section 248. The court now has the power, under section 236, upon application of either the husband or the wife, to annul or modify an order or final judgment based upon the economic circumstances of the case and of the respective parties as justice requires." (Id. at 809-810) The court in Matter of Anonymous recognized that the legislature was requiring courts to consider economic factors in the continuing payment of maintenance and discarding the aged-out "misconduct" standard. Under the economic standard, courts could find "holding out" based on a plethora of shared objective, economic-based factors, and without a declaration by the recipient that she or he was "a wife or husband" to a third party. Significantly, the court in Matter of Anonymous nonetheless declined to modify the maintenance under section 248 because, it concluded, the husband, seeking relief, had approved his former wife's conduct, and to allow modification would be "a travesty of justice." (Id. at 811.)