Scharnweber v. Scharnweber

In Scharnweber v. Scharnweber (105 AD2d 1080, 1080, 482 NYS2d 187 4th Dept [1984], Supreme Court concluded that an unrelated male was living with Mrs. Scharnweber in the former marital residence, which entitled her ex-husband to cease support payments and required her to pay $10,000 to discharge a second mortgage. There are no facts recited in the Appellate Division's decision. The record on appeal, however, discloses that Mrs. Scharnweber, who was 43 years old, was having an affair with her daughter's former boyfriend, who was 24 years old. The boyfriend moved into a house 300 yards down the street from the former marital residence, first house-sitting for the absent owner and subsequently renting a room. He gave Mrs. Scharnweber or her teenage daughter (the cook in the family) money to purchase food, and routinely took his meals with Mrs. Scharnweber and her children at the former marital residence; he also occasionally helped her out with car payments. Both Mrs. Scharnweber and her boyfriend testified that he did not sleep overnight with her in the marital residence (he worked a night shift; she worked during the day). The Appellate Division reversed, concluding that "the evidence established that Mrs. Scharnweber and her boyfriend did not share household expenses or a bedroom and did not function as an economic unit" despite the boyfriend's financial contributions for food and transportation (Scharnweber, 105 AD2d at 1080). In our memorandum decision, the Court stated that the facts in the case, which we did not describe, "more nearly comported with the Appellate Division's view" than with Supreme Court's, and so the ex-husband "failed to establish the cohabitation required by the agreement" (Scharnweber, 65 NY2d at 1017). The Court did not equate the word "cohabitation" with "changed economic circumstances" alone. Indeed, the Appellate Division in Scharnweber indicated that whether Mrs. Scharnweber and her boyfriend shared a bedroom (unlike Mrs. Graev and MP, they did not) was also a relevant factor (see also Brown, 122 AD2d at 764).