Opinion
2016–12471 Index No. 204303/02
06-24-2020
Harvey J. CAVAYERO, Respondent, v. Beth CAVAYERO, Appellant.
Edwards & Rockmore, P.C., Garden City, N.Y. (Jonathan E. Edwards and Charles E. Holster III of counsel), for appellant. Eric Dubinsky, Westbury, NY, for respondent.
Edwards & Rockmore, P.C., Garden City, N.Y. (Jonathan E. Edwards and Charles E. Holster III of counsel), for appellant.
Eric Dubinsky, Westbury, NY, for respondent.
LEONARD B. AUSTIN, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDER In a matrimonial action in which the parties were divorced by a judgment entered March 26, 2004, the defendant appeals from an order of the Supreme Court, Nassau County (Hope Schwartz Zimmerman, J.), dated October 21, 2016. The order, insofar as appealed from, denied, without a hearing, the defendant's motion, inter alia, to hold the plaintiff in contempt and for an award of certain child support arrears.
ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a hearing on the defendant's motion and a new determination of the motion thereafter.
The parties were married in 1983 and had two children together. In 2001, they entered into a separation agreement which provided for certain distributions of property and provided that the plaintiff was obligated to pay child support to the defendant. The parties divorced in 2004, and both the separation agreement and an amendment to the separation agreement were incorporated but not merged into the judgment of divorce. In 2014, after the children were emancipated, the defendant moved, inter alia, to hold the plaintiff in contempt and for an award of certain child support arrears. The Supreme Court denied the defendant's motion without a hearing, concluding that the defendant waived her rights under the separation agreement and the amendment to the separation agreement, including the right to receive child support.
A valid waiver " ‘requires no more than the voluntary and intentional abandonment of a known right which, but for the waiver[,] would have been enforceable’ " ( Golfo v. Kycia Assoc., Inc., 45 A.D.3d 531, 532, 845 N.Y.S.2d 122, quoting Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 184, 451 N.Y.S.2d 663, 436 N.E.2d 1265 ; see Gresser v. Princi, 128 A.D.2d 752, 513 N.Y.S.2d 462 ). It may arise by either an express agreement or by such conduct or failure to act as to evince an intent not to claim the purported advantage (see Hadden v. Consolidated Edison Co. of N.Y., 45 N.Y.2d 466, 469, 410 N.Y.S.2d 274, 382 N.E.2d 1136 ; Cotton v. Cotton, 76 A.D.3d 1041, 1042, 908 N.Y.S.2d 133 ). A waiver "is not created by negligence, oversight, or thoughtlessness, and cannot be inferred from mere silence" ( Peck v. Peck, 232 A.D.2d 540, 540, 649 N.Y.S.2d 22 ). Rather, the party claiming a waiver must proffer evidence of a voluntary and intentional relinquishment of a known and otherwise enforceable right (see Matter of Tafuro v. Tafuro, 102 A.D.3d 877, 878, 958 N.Y.S.2d 202 ; Stevens v. Stevens, 82 A.D.3d 873, 874, 918 N.Y.S.2d 879 ; Matter of Barrio v. Montanez, 71 A.D.3d 1140, 896 N.Y.S.2d 905 ).
Here, in opposition to the defendant's motion, the plaintiff failed to establish, as a matter of law, that the defendant's conduct after the parties entered into the separation agreement constituted "a voluntary and intentional relinquishment of ... known and otherwise enforceable right[s]" pursuant to the parties' separation agreement and judgment of divorce ( Matter of O'Connor v. Curcio, 281 A.D.2d 100, 104, 724 N.Y.S.2d 171 [internal quotation marks omitted]; see Matter of Dox v. Tynon, 90 N.Y.2d 166, 659 N.Y.S.2d 231, 681 N.E.2d 398 ; Matter of Gleason v. Gleason, 247 A.D.2d 384, 668 N.Y.S.2d 657 ). Therefore, the Supreme Court should not have denied the defendant's motion without a hearing. Accordingly, the matter must be remitted to the Supreme Court, Nassau County, for a hearing and new determination of the defendant's motion.
AUSTIN, J.P., ROMAN, MALTESE and LASALLE, JJ., concur.