Diane R. v John R. (2013 NY Slip Op 51855(U))

Diane R. v John R.

2013 NY Slip Op 51855(U) [41 Misc 3d 1227(A)]

Decided on November 13, 2013

Supreme Court, Westchester County

Duffy, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

On March 8, 2013, Plaintiff Diane R. ("Plaintiff") filed an order to show cause, affidavit ("Plaintiff's Aff."), affirmation of Ellen Werfel-Martineau, Esq. ("Plaintiff's Counsel"), and exhibits thereto, seeking (1) an order declaring Defendant John R. ("Defendant") in contempt of the parties' Separation and Settlement Agreement, dated February 19, 2009 ("Separation Agreement"), which was incorporated but not merged into the parties' Judgment of Divorce, dated March 26, 2009 ("Judgment of Divorce"); (2) a money judgment for child support arrears, unreimbursed medical expenses and an unpaid distributive award due and owing to Plaintiff; (3) an order granting Plaintiff certain rights and authority to act with respect to the parties' marital condominium located in Florida ("Florida Condo") and directing Defendant to account for any outstanding financial obligations and liabilities in connection with the Florida Condo and to take all necessary steps to remove Plaintiff from any and all liability associated with the Florida Condo; (4) an order directing Defendant to provide his current address to Plaintiff;^[FN1] (5) counsel [*2]fees; (6) such other and further relief as the Court may deem just and proper.

On or about June 12, 2013, Defendant filed an affidavit ("Defendant's Aff.") and affirmation of Deborah Poulos, Esq.,^[FN2] in opposition to Plaintiff's order to show cause.

On August 29, 2013, Plaintiff filed a reply affidavit ("Plaintiff's Reply Aff.") and supplemental and reply affirmation of Plaintiff's Counsel and exhibits thereto, in reply to Defendant's opposition to the order to show cause.

BACKGROUND OF THE ACTION

Plaintiff and Defendant were married in 1992, in Yonkers, New York and the parties have one child of the marriage (hereinafter, the "Subject Child"). The parties' Judgment of Divorce, dated March 19, 2009, was filed and entered on March 23, 2009.

Pursuant to the parties' Judgment of Divorce and Separation Agreement, Defendant is obligated to pay child support to Plaintiff in the amount of $1,580.00 per month, subject to a cost of living adjustment, until the Subject Child is emancipated as defined in the Separation Agreement. Judgment of Divorce, p.2; Separation Agreement, Article XIX, ¶ 2. In addition, the Judgment of Divorce and Separation Agreement also provide that the parties will equally share the extracurricular activity and educational expenses incurred for the Subject Child up to the amount of $600.00 per year per parent and summer camp and/or program expenses up to the amount of $800.00 per year per parent. Judgment of Divorce, p. 3 (incorporating Separation Agreement as if set forth in full); Separation Agreement, Article XIX.

In addition, Plaintiff and Defendant also are required to share equally in the cost of the Subject Child's health care coverage as well as share equally the cost of all unreimbursed medical, dental and health costs toward the household and living expenses of Plaintiff. Judgment of Divorce, p. 3; Separation Agreement, Article XXI,

¶ 1.

With respect to the Florida Condo, pursuant to the Judgment of Divorce and Separation Agreement, Defendant agreed to purchase Plaintiff's interest in the Florida Condo and Plaintiff agreed to execute all documents, including a bargain and sale deed, necessary to transfer her interest in the Florida Condo and to file the deed. Judgment of Divorce, p. 3; Separation Agreement, Article XXVII, ¶ 2. In the event that the Florida Condo was not sold on or before June 30, 2010, Defendant was required to pay to Plaintiff the sum of $22,000.00 as and for her interest in the Florida Condo and to remove Plaintiff from any direct liability associated with the mortgage on the Florida Condo through refinancing or otherwise. Judgment of Divorce, p. 3; Separation Agreement, Article XXVII ¶ 2.

The parties' Judgment of Divorce and Separation Agreement provide that, as of the date of the Separation Agreement, Defendant "assume[d] all responsibility with respect to the Florida Condo, including but not limited to payment of the [mortgage] . . . the [HELOC] . . ., real estate taxes, repairs, utilities, maintenance, common charges and insurance" and was required to "indemnify [Plaintiff] and hold her harmless against any and all claims or liabilities with respect thereto." Judgment of Divorce, p. 3; Separation Agreement, Article XXVII, ¶ 1. Defendant also [*3]was required to take reasonable steps to have Plaintiff's name removed from the mortgage and HELOC obligations on the Florida Condo but was not obligated to refinance the obligations prior to June 30, 2010. Id.

The parties' Judgment of Divorce and Separation Agreement also provide that no provision of the Separation Agreement "shall be modified, or deemed amended or modified, except by an [a]greement in writing duly subscribed and acknowledged with the same formality as this Agreement." Judgment of Divorce, p. 3; Separation Agreement, Article XXXI.

CONCLUSIONS OF LAW

For the reasons set forth below, the Court grants Plaintiff's order to show cause.

It is well settled that a matrimonial settlement agreement is a contract subject to the principles of contract interpretation. Colucci v. Colucci, 54 AD3d 710, 864 N.Y.S.2d 67 (2d Dep't 2008). A court should interpret the contract in accordance with its plain and ordinary meaning. Id. "[W]hen interpreting a contract, the court should arrive at a construction which will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized. Winski v. Russo Kane, 33 AD3d 697 (2d Dep't 2006), citing Matter of Schiano v. Hirsch, 22 AD3d 502 (2d Dep't 2005); Fetner v. Fetner, 293 AD2d 645, 645-646 (2d Dep't 2002). Where the language of the agreement is "clear and unambiguous on its face, the intent of the parties must be gleaned from within the four corners of the instrument, and not from extrinsic evidence." Rainbow v. Swisher, 72 NY2d 106, 109 (1988); Perry v. Perry, 13 AD3d 508, 509 (2d Dep't 2004). The Judgment of Divorce, which mirrors, almost word for word, the disputed provisions in the parties' Separation Agreement, also binds the parties to its terms. Rainbow v. Swisher, at 110.

Here, the plain language of these provisions - in both the Judgment of Divorce and the Settlement Agreement - demonstrates that Defendant's child support obligation is $1,580.00 per month, plus extracurricular activity costs up to $600.00 per year and $800.00 per year for summer camp or program expenses, plus fifty percent of the cost of the Subject Child's medical coverage and unreimbursed medical expenses.

Defendant's contention that he does not owe any arrears to Plaintiff as they had agreed to reduce child support is unavailing. As an initial matter, Plaintiff has disputed Defendant's contention that she had agreed to reduce the amount of child support per month or that she agreed to waive Defendant's obligation to pay his requisite share of the Subject Child's medical coverage, unreimbursed medical expenses and extracurricular activities. Plaintiff's Reply Aff. ¶¶ 2, 5. Moreover, the Separation Agreement expressly provides that it cannot be modified or amended except through a writing, subscribed and acknowledged by both parties in the same manner as the Separation Agreement. Separation Agreement, Article XXXI. Defendant has not contended that any such written modification exists. Indeed, Plaintiff contends it does not. Plaintiff's Reply Aff. ¶¶ 6, 7.

Thus, Defendant's assertions that he owes no arrears as the child support amount was [*4]modified by agreement of the parties, without evidence of any such written, subscribed modification, fails. Gen. Oblig. Law § 15-301(1); Rose v. Spa Realty Associates, 42 NY2d 338, 343 (1977)(where written agreement proscribes oral modification, it cannot be modified orally); Tierney v. Capricorn Investors, L.P., 189 AD2d 629, 631 (1st Dept. 1993), app. denied, 81 NY2d 710 (1993).

The Court notes that, although Defendant has proffered a variety of reasons as to why he does not owe the amounts set forth in the parties' Separation Agreement, he has not disputed Plaintiff's calculations as to those unpaid amounts. See Plaintiff's Order to Show Cause, Exs. C and D. Accordingly, Defendant's application with respect to child support arrears and the related expenses of medical coverage and unreimbursed medical expenses is granted. Plaintiff is granted a money judgment in the amount of $13,200.00 for child support arrears from April 2011 to March 2013, plus $2,979.50 for medical expenses.

Pursuant to the terms of the parties' Separation Agreement, Defendant was obligated to provide $22,000.00 to Plaintiff if the Florida Condo was not sold by June 30, 2010. Stipulation, Article XXVII, ¶ 2. Plaintiff tendered the deed to the property to Defendant pursuant to her obligation under the Separation Agreement. Plaintiff's Aff., ¶ 8. Notwithstanding, Defendant did not sell the Florida Condo and has not paid the money to Plaintiff. Defendant's Aff. ¶ 28.

Defendant's contention that he and Plaintiff entered into a letter agreement setting forth a payment plan for the funds he owes to Plaintiff in connection with the Florida Condo is unavailing. As an initial matter, Plaintiff has denied that any such agreement exists or existed. Plaintiff's Reply Aff., ¶ 5. Second, pursuant to the terms of the parties' Separation Agreement, any such modification or amendment of the terms of the Separation Agreement would have to be in a formal writing subscribed and acknowledged by both parties. Defendant has not produced any such document nor contended that such exists.^[FN3]

Accordingly, the Court finds that Plaintiff owes Defendant the amount of $22,000.00.

Although appointment of a receiver is an extreme remedy, a Court, in a proceeding of this nature, is within its discretion to appoint such a receiver upon a clear showing of the necessity for conservation of the property and the interests of the movant. CPLR § 6401; Rose v. Rose, 305 AD2d 578, 578-9 (2d Dept. 2003); see Altmann v. Finger, 23 AD3d 591, 592 (2d Dept. 2005) (receiver appointed without hearing in post judgment matrimonial action where condo was not sold within period of time specified by parties' stipulation).

Here, Defendant has not disputed that he has not paid Plaintiff the funds to which she is entitled for her interest in the Florida Condo and also that he has failed to remove Plaintiff from [*5]the mortgage and HELOC associated with the Florida Condo. Defendant's Aff., ¶¶ 23, 24, 33. Moreover, Defendant has acknowledged that he failed to timely pay the mortgage in April and May of this year and apparently has entered into an agreement to modify the existing mortgage without obtaining the consent of Plaintiff. Defendant's Aff., ¶¶ 24-25, 33. Defendant also has not refuted Plaintiff's contention that he failed to pay the mortgage payments on the Florida Condo as of July 2011 and that, as a result, although foreclosure proceedings are not active, a lis pendens remains on the land records. See Plaintiff's Aff., ¶ 10; Plaintiff's Reply Aff., ¶ 9. Defendant also has provided no evidence to the Court to support his contention that he has attempted to remove Plaintiff from the existing mortgage as he was obligated to do as of June 2010.

Defendant's failure to comply with the parties' Separation Agreement requiring him to pay Plaintiff her distributive share in exchange for her interest in the Florida Condo, his failure to stay current with respect to the mortgage on that property and his failure to remove Plaintiff from liability with respect to the property by refinancing, all while apparently collecting rent on the property, is evidence constituting the requisite "clear showing" necessary for this Court to appoint Plaintiff as uncompensated receiver of the Florida Condo to preserve Plaintiff's interest in the property and prevent Plaintiff from further liability in connection with same. Rose at 579.

Accordingly, Plaintiff is appointed as an uncompensated receiver for the Florida Condo for the purpose of (1) ascertaining the status of any liability attached to or associated with the Florida Condo, (2) collecting any rents generated by the property and (3) paying any debts of the property either through negotiation with creditors of the property, sale, refinance or otherwise, including payment of debts with any rental receipts (including payment of $22,000.00 to Plaintiff for her interest in the property), until such time as Defendant pays Plaintiff the sum of $22,000.00 for the Florida Condo and removes Plaintiff's name from any debt or liability connected to the property.

Here, Defendant contends he has been, and is still, attempting to meet his obligations under the Judgment of Divorce and Separation Agreement but that his financial difficulties, including two periods of unemployment, prevented him from so doing. Nonetheless, Defendant has not provided any evidence of his income and expenditures during the time period when he was failing to meet his obligations pursuant to the parties' Judgment of Divorce and Separation Agreement.

As noted above, the Court has found that Defendant violated his obligations under the parties' Judgment of Divorce and Separation Agreement. To the extent that Plaintiff seeks a finding of contempt against Defendant, the Court will hold a hearing to determine whether a finding of contempt is warranted. Katz v. Katz, 73 AD3d 1134 (2d Dept. 2010)(to prevail on motion to punish for civil contempt, movant must establish violation by clear and convincing evidence); Rubin v. Rubin, 78 AD3d 812, 813 (2d Dept. 2010)(where a period of incarceration is to be imposed for civil contempt, contemnor's violation must be proven beyond a reasonable [*6]doubt).

E.Plaintiff's Request for Interest is Granted

Plaintiff's request for statutory interest on the distributive award is granted; statutory interest on the arrears for Defendant's unpaid portion of medical coverage, unreimbursed medical expenses and extracurricular activities is denied. With respect to interest on child support arrears, the Court reserves decision until after the hearing on willfulness.

With respect to the distributive award of $22,000.00, Plaintiff is entitled to interest until the date of payment by Defendant. Aloi v. Simon, 82 AD3d 683 (2d Dept. 2011)(on a distributive award, post judgment interest is awarded to date of payment); Gober v. Gober, 4 AD3d 175 (1st Dept. 2004).

The amount of Defendant's obligation for the Subject Child's medical coverage and unreimbursed medical expenses and extracurricular activities is not a sum certain set forth in the Judgment of Divorce. Accordingly, no award of statutory interest as to those monies owed is warranted. Wyser- Pratte v. Wyser-Pratte, 68 AD3d 624, 626 (1st Dept. 2009)(pre-judgment interest is discretionary in matrimonial litigation); Rubin v. Rubin, 767 N.Y.S.2d 96 (1st Dept. 2003), app. denied, 2 NY3d 706 (2004) (no automatic entitlement to pre-judgment interest in matrimonial); Lipsky v. Lipsky, 276 AD2d 753, 754 (2d Dept. 2000).

With respect to interest on the monthly "basic" child support of $1,580.00, the Court will issue a decision after a hearing as to whether Defendant's failure to pay such amounts was willful. See DRL § 244 (interest mandatory on support awards where default was willful); Manno v. Manno, 224 AD2d 395, 400 (2d Dept. 1996)(DRL 244 provides for payment of interest in case of willful default).

F.Plaintiff is Entitled to Reasonable Attorneys Fees

It is within the Court's discretion to award counsel fees in post-judgment proceedings involving enforcement. Domestic Relations Law § 237; DeCabrera v. DeCabrera-Rosete, 70 NY2d 879, 881 (1987). The Court notes that the parties' Separation Agreement also provides for an award of counsel fees if a party fails to comply with the terms of the Settlement Agreement. See Separation Agreement, Article XI, ¶¶ 1-2. The standard for awarding counsel fees includes an inquiry in to the nature and extent of services, the performance of counsel under the circumstances, the difficulty of the case, the results achieved and counsel's reputation in the legal community. Id.; see also Barnes v. Barnes, 54 AD2d 963 (2d Dept. 1976); McCann v. Guteri, 100 AD2d 577 (2d Dept. 1984). The party seeking the requested fees does not need to prove an inability to pay the fees, although the Court is guided by the relative financial circumstances of the parties and the merits of the matter before the Court. DeCabrera at 881.

The Court may consider, as here, the fact that Defendant engaged in conduct or failed to act which resulted in unnecessary litigation as a basis for the award of fees to Plaintiff. Here, despite the unambiguous language of the parties' Judgment of Divorce and Separation Agreement, Defendant failed to make the full amount of child support payments to Plaintiff during the period of time set forth in Plaintiff's Order to Show Cause, unilaterally reduced the child support monthly payment and wholly failed to undertake any of his obligations with respect to paying Plaintiff her distributive share in [*7]connection with the Florida Condo. Moreover, Defendant has not disputed that he failed to timely make mortgage payments, and that he entered into a mortgage modification agreement, without the consent of Plaintiff, as to that property.

Accordingly, the Court finds that Plaintiff is entitled to reasonable counsel fees and will hold a hearing as to the amount of such award.

Parties and counsel are directed to appear on December 17, 2013, at 10:00 a.m., for the hearings ordered in this Decision and Order.

The Court considered the following submission by the parties: the Order to Show Cause, dated March 8, 2013, and Affidavit of Plaintiff, dated March 5, 2013, and Affirmation of Plaintiff's Counsel and exhibits thereto; and Affirmation of Deborah Poulos, Esq., dated June 12, 2013, and Affidavit of Defendant, dated June 12, 2013, and exhibits thereto; Reply Affidavit of Plaintiff, dated August 27, 2013, and Supplemental and Reply Affirmation of Plaintiff's Counsel and exhibits thereto.

This constitutes the Decision and Order of the Court.

Dated: White Plains, New York