Appeal from a judgment of the District Court of Nassau County, Second District (Euguene H. Shifrin, Ct. Atty. Ref.), entered November 22, 2011. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $114.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the District Court for a new trial before a judge or different court attorney referee.

At the nonjury trial of this small claims action, the parties testified that they had previously been married, had divorced in 2006, and had entered into a stipulation of settlement which had not been merged into the judgment of divorce. They indicated in their testimony that the stipulation of settlement had set forth the custodial arrangements for the parties' two children, as well as the parties' respective support obligations. It was uncontested that the stipulation of settlement had not made reference to cell phone service for the children. There was further testimony that the children had cell phones, the service for which was billed to plaintiff; that, at some point, defendant had agreed to pay plaintiff on a monthly basis for half the cost of the children's cell phone bills; and that, for a period of time, she had, in fact, paid for half the cost. In this action, plaintiff seeks to recover $114 from defendant, which, he alleged, was the amount of half the children's cell phone bills attributable to bills dated April 29, 2011 and May 30, 2011. At the time of the trial, the parties' children were seniors in high school and college, respectively. Plaintiff testified that both children had earned money. Whereas defendant testified that she had stopped paying half the cost of the children's cell phone service because she believed the children should pay that cost themselves, plaintiff asserted that, in his opinion, there were other uses for the children's earnings. Following the trial, judgment was awarded to plaintiff in the principal sum of $114.

In our view, a new trial is required. The court attorney referee conducted the trial by questioning the litigants only as to the facts he deemed relevant for a determination of the matter. Upon the sparse record that was developed, we are unable to determine, among other things, whether the conceded agreement to split the children's cell phone bills was for a definite period, and, if so, what its duration was, or whether it was for an indefinite period terminable at will, and, if the latter, when and how defendant sought to terminate the agreement. In these circumstances, we conclude that the judgment in favor of plaintiff failed to render substantial justice between the parties according to the rules and principles of substantive law (UDCA 1804, [*2]1807).

We do not consider those assertions made by the parties on appeal which, not having been raised at trial, are dehors the record.

Accordingly, the judgment is reversed and the matter is remitted for a new trial before a judge or different court attorney referee.

Nicolai, P.J., LaSalle and Marano, JJ., concur.
Decision Date: December 12, 2013