Opinion
11/12127
10-05-2016
David B. Shaw, Plaintiff, v. Lauren M. Shaw, Defendant.
Michael Schmitt, Esq. Attorney for Plaintiff Rochester, New York Vincent Ferrero, Esq. Attorney for Defendant Rochester, New York
Michael Schmitt, Esq. Attorney for Plaintiff Rochester, New York Vincent Ferrero, Esq. Attorney for Defendant Rochester, New York Richard A. Dollinger, J.
Sometimes, old country western singers can direct the court to the right decision. Ernest Tubbs does just that in "That's All She Wrote," which is a fitting epitaph for a father's contractual obligation to move his residency in this case.
Ernest Tubbs, That's All She Wrote, written by Jerry Fuller, from his album, Thanks a Lot (1964)
In this matter, a mother and father feud over their separation agreement and their status as joint custodial parents. Both parties each seek sole custody of the child, changes in the visitation schedule set forth in their agreement and custodial evaluations of each other. The major complaint over the agreement involves a promise by the father to live within 15 miles of the mother's residence as part of the visitation plan. The father of the child now seeks relief from that obligation.
A party seeking to modify a separation agreement that is incorporated, but not merged into a judgment of divorce must demonstrate that the agreement was not fair and equitable when entered into or that an unanticipated and unreasonable change in circumstances has occurred. Any unforeseen circumstances must result in extreme financial hardship in order to warrant a modification of the incorporated agreement. McKay v McKay, 105 AD3d 1296 (3rd Dept. 2013). See also Schneider v. Schneider, 98 AD3d 732 (2nd Dept. 2013), Samuelson v. Samuelson, 108 AD3d 612 (2nd Dept. 2013). There is no argument that the agreement, in its totality, was not fair and equitable when signed. Both parties were competent and had independent legal representation. In Werbuld v. Werbuld, 128 AD2d 194 (1st Dept. 1987), the Appellate Division opined that:
So long as a separation agreement stands unimpeached, a court cannot alter or change a provision for separate maintenance and support of a wife without the consent of both. Obviously, where the separation agreement is impeached, a court under appropriate circumstances is justified in reforming the contract so as to make it conform to the agreement actually made and intended. However, absent such impeachment, there is no authority for the court to cancel a contract made by the parties and in its place substitute one which it thinks proper, but which as a matter of fact the parties had never assented to.Id. at 197. In this instance, the father does not make any argument that the separation agreement's specific terms regarding moving closer to the mother of the child was unfair and inequitable when they made the agreement. He argues that when the agreement was signed, he worked different hours, but he makes no allegation that the agreement regarding moving his residence closer to the wife's ultimate residence was unfair.
His argument that an "unanticipated or unreasonable change in circumstances" has occurred is based on the slim theory that his new girlfriend - soon to be wife - and their new child own a home more than 15 miles away from the mother of his child and this fact was "unanticipated." In this court's view, the selection of a girlfriend, who happens to own a home in a location more than 15 miles from the mother's residence, cannot, in any fashion, be considered "unanticipated." The location of his new residence is a result of his own choices. There is also no evidence of any extreme financial hardship in the continued enforcement of the 15-mile provision. There is no evidence that the husband could not afford to live within the 15-mile radius of the mother's home and, in its absence, there is no claim of "extreme financial hardship."
The husband also argues that he can comply with the spirit of this agreement, if not its exacting language. He argues that the provision was designed to ease transportation time for the children in going to school and in exchanges between the parents. He contends that even living outside the 15-mile radius, he can transport the child to school and daycare in nearly the same amount of time as if he lived inside the radius. The wife does not seriously contest the husband's argument about travel time. However, this argument, while perhaps a valid basis to amend the agreement, is without legal effect. If the parties had wanted to make their respective residence arrangements based on the commuting time or the transfer time, they could easily have done so. Having elected to make the residency issues based on a certain distance, the question of whether the travel time is "nearly equivalent" is without legal effect. The agreement, signed by both parties and enforceable against them, says he must live within 15 miles of the mother. From this court's view, "that's all she wrote."
The phrase originates as a response from disconsolate male lovers to receipt of "Dear John" letters from their girlfriends. https://en.wiktionary.org/wiki/that%27s_all_she_wrote --------
The father makes three other arguments in seeking relief. First, he notes properly, that the agreement contains no penalty provision if he fails to live within the 15 mile radius. However, the residence language rests in the child custody/visitation portion of the agreement and, in this court's view, the father's failure to comply with the agreement would constitute a change of circumstances sufficient to re-open the custody/primary residence and visitation provisions in the agreement.
Second, he argues, again properly, that there is no deadline for him to change his residence and comply with the agreement. In the absence of such a contractual deadline, New York courts have imposed a "reasonable time" deadline. Gilbane Bldg. Co./TDX Constr. Corp. v. St. Paul Fire & Marine et al 2016 NY Slip Op 06052 (1st Dept. 2016); Schwartz v Rosenberg, 67 AD3d 770, 771 (2nd Dept. 2009) (when a contract does not specify time of performance, the law implies a reasonable time); Board of Mgrs. of the Gateway Condominium v Gateway II, LLC, 51 Misc 3d 1209 (A) (Sup. Ct. New York Cty. 2016) (while there is no deadline for this obligation, in such instances, the law imputes a reasonable time which "depends upon the facts and circumstances of the particular case"). In this matter, the event set forth in the agreement which triggers the father's obligation to move with 15 miles is the child's commencement of kindergarten. The agreement says that the wife would change her residence "at or about the time" that the child commences kindergarten. This language is amorphous and suggests that the parties built in chronological flexibility in determining when the father's had to meet his obligation to move within 15 miles. Therefore, the apparent flexibility conceded by the parents in their agreement suggests that the father should have an extended time in which to comply with the residency requirement. The court concludes that he will have three months from the date the child commences kindergarten to comply with the radius requirement. While the father can argue for a longer "reasonable time," he cannot complain about the three-month period because the date for the commencement of the child's kindergarten, while perhaps not an exact date, was certainly well known to the father well before it occurred. In balancing the "facts and circumstances" of this matter, the court concludes that three-month compliance period is a reasonable time deadline for compliance. In addition, because of this contractual flexibility, the mother cannot seize upon the father's noncompliance with the agreement as a basis for modification of the agreement unless and until he fails to move within the time limit directed by the court.
Finally, the father makes a last-ditch effort to avoid the restriction of 15-mile rule by alleging that he made arrangements to "reside" in the Town of Pittsford, within the radius set forth in the agreement. However, his allegation is rebutted by his own affidavit, in which he later states that he has resided with his girlfriend and son in Spencerport - outside the 15mile radius - for two years. Furthermore, the agreement states that the father will "maintain his residence" within the 15-mile radius. There is no evidence that he has established a residence in Pittsford: there is no evidence that he lists that address on his driver's license, he votes from that address, or that his girlfriend and son reside there with him. The court declines to credit his simple declaration that he has established a residence in Pittsford, when his girlfriend and son reside else where and there is no independent verification of his new residence.
For these reasons, the court declines to relieve the father from his obligation to move within 15 miles of the mother's residence, but gives him three months from the commencement of the daughter's kindergarten to do so.
With respect to the other issues before the court, the court declines to modify the visitation plan until the father decides whether to comply with the agreement, as provided in this opinion. The wife's argument for modification is based, in large measure, on the father's noncompliance with the agreement. Because this court has extended his time to comply, any adjustment of the visitation schedule is premature.
In addition, the father requests a change of custody and primary residence. However, in his application, he makes only general statements in support of these changes. He claims that his ex-wife cannot control her emotions, that the daughter, after returning from a trip with her mother, had a different attitude toward the father and finally, that the father and mother cannot communicate effectively and refers to some contentious emails concerning the child's first day at school. The emails were not presented to the court. The mere allegation that the mother "will never compromise with me" and the other general allegations are insufficient to establish a prima facie case for a substantial change in circumstances to justify a change in custody or primary residence. There is also no substantial evidence that any controversy between the mother and father has adversely impacted the child or that it would be in the child's best interest to modify custody or the visitation plan. For these reasons, the request for a change in custody or primary residence is denied. The application for a court ordered evaluation of both parties is denied without prejudice.
And, to paraphrase, Ernest Tubbs, "that all I am writing."
SUBMIT ORDER ON NOTICE DATED: October 5, 2016 _____________________________ Richard A. Dollinger