Plaintiff commenced this action seeking to terminate his obligation to pay maintenance due to the remarriage of defendant, his former wife. The parties were married on July 12, 1980. They separated in September 2009 and participated in a collaborative law process that resulted in their execution of a separation agreement on April 15, 2011 (the Separation Agreement), that was incorporated without merger in a Judgment of Divorce granted on May 18, 2011. In relevant part, the Separation Agreement provides that plaintiff shall pay maintenance until 2023, unless previously terminated by "[defendant's] remarriage" (Separation Agreement, Article XII [p. 19]). Plaintiff alleges that defendant has entered into a polygamous marriage with Kenneth Hill and Janice Hill, thereby terminating his obligation to pay maintenance. He now moves for an order: (1) striking the proposed changes or corrections that defendant seeks to make to the transcript of her examination before trial; (2) compelling her to provide responses to his outstanding disclosure demands; and (3) compelling her to submit to another examination before trial. Defendant cross-moves for summary judgment dismissing the complaint.

Defendant's cross-motion will be considered prior to plaintiff's motion, because a decision granting summary judgment dismissing the complaint would render plaintiff's disclosure motion moot, requiring that it be denied. Plaintiff claims that defendant entered into a marriage with Hills, as contemplated by the Separation Agreement, based upon the facts that defendant: (1) has stated that she is "married" to the Hills; (2) resides with Hills in a home that all three own together as joint tenants; (3) wears a ring comprised of three intertwined bands that was given to her by Hills, which he believes is a wedding ring; and (4) wrote in a personal journal prior to the parties' divorce of her desire to be married to Kenneth Hill and of her plan for a polyamorous relationship with both Hills. Even if such facts are assumed to be true for purposes of opposing defendant's cross-motion, they are insufficient to show that defendant has remarried.

The language of the Separation Agreement is clear and unambiguous — it provides for termination of maintenance upon defendant's "remarriage," without attempting to qualify that term or change its ordinary meaning. Thus, the only plain meaning that can be ascribed to the term remarriage is defendant's entry into a legally-valid marriage with another person capable of consent. Plaintiff alleges that defendant has entered into a polygamous marriage with two individuals who, as his counsel conceded at oral argument, are already legally married to each [*2]other. However, any attempt by defendant to marry either or both of the Hills would be void and of no legal effect. New York allows a person to have only one spouse at a time; a marriage is absolutely void, ab initio, if contracted by a person who is already legally married to another (see Domestic Relations Law § 6; Campbell v Thomas, 73 AD3d 103, 110-111 [2010]; Antony T. v Rosemarie B.T., 41 Misc 3d 1208[A], 2013 NY Slip Op 51615[U]; see also Ponorovskaya v Stecklow, 45 Misc 3d 597, 605 [2014]).

By attempting to characterize defendant's purported relationship with Hills as a marriage, plaintiff is effectively attempting to change the terms of the parties' negotiated agreement that requires him to pay maintenance upon dissolution of the parties' long-term marriage in which he had been the primary wage-earner with significantly greater earning capacity than defendant. The parties could have defined remarriage in the Separation Agreement in a manner that may have included the circumstances under which plaintiff alleges defendant now lives, but they did not (see e.g. Matter of Emrich v Emrich, 173 AD2d 818, 819 [1991], appeal denied 78 NY2d 860 [1991] [remarriage specifically defined to include the former wife holding herself out as remarried without an actual remarriage and/or her residing with a male on a substantially continuous basis for more than 60 days]; J.A. v L.A., ___ Misc 3d ___[A], 2014 NY Slip Op 50944[U] [maintenance to terminate upon ceremonial remarriage]; see also Vega, 119 AD3d 1139 [maintenance to terminate if the wife cohabits with an individual for more than 75 days within any six-month period of time]; Fecteau v Fecteau, 97 AD3d 999 [2012] [maintenance to terminate upon remarriage, or if the wife lives habitually with another person over the age of eighteen years in a spousal type of relationship]; Smith v Smith, 233 AD2d 830 [1996] [maintenance to terminate upon wife's cohabitation with another man]). Where a separation agreement recites specific events that terminate maintenance, such as remarriage, without including other events that could potentially terminate maintenance, such as cohabitation or ceremonial remarriage, it must be construed as requiring that maintenance continue notwithstanding the occurrence of such alternative events (see Brown v Brown, 226 AD2d 1010 [1996]).

Based on the foregoing, defendant's cross-motion is granted and the complaint is dismissed, with prejudice.

This decision constitutes the order of the court. The transmittal of copies of this decision and order by the court shall not constitute notice of entry.

Cortland, New York

_______________________________

HON. PHILLIP R. RUMSEY

Supreme Court Justice

The following documents were filed with the Clerk of the County of Cortland:

Notice of motion dated July 18, 2014.

Affidavit of David Hunsinger, sworn to July 18, 2014.

Affidavit of Anthony N. Elia, Esq., sworn to July 18, 2014, with Exhibits A — I.

Notice of cross-motion dated August 8, 2014.

Affidavit of Allison Kannus, sworn to August 7, 2014.

Affidavit of Patricia Hunsinger, sworn to August 7, 2014.

Affidavit of Kenneth Hill, sworn to August 6, 2014.

Affidavit of Janice Hill, sworn to August 6, 2014.

Affirmation of L. Richard Stumbar dated August 8, 2014, with Exhibits A — K.

Reply affidavit of David Hunsinger, sworn to August 13, 2014, with Exhibits J — K.

Affidavit of Anthony N. Elia, Esq., sworn to August 13, 2014, with Exhibit L.

Original Decision and Order dated November 19, 2014.